In re Bobby B.

Filed 8/8/08 In re Bobby B. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Bobby B., the dependent child, and Cecelia B., his defacto parent, appeal from orders of the juvenile court terminating the dependency. (Welf. & Inst. Code, 391, 395; further undesignated statutory references are to this code.) Appellants contend the court abused its discretion in declining to extend the dependency. The defacto parent further argues the court erred in refusing to appoint counsel for her. We affirm the orders of the juvenile court.

Facts and Proceedings

Bobby and his siblings were removed from parental custody in 1995 in Madera County. Reunification efforts ceased in 1997 and the minors were placed with relatives or other appropriate long-term placements. All of the minors were moved to a relative placement with the defacto parent in 2000 after one of the siblings died while in foster care. All the minors had problems as a result of the loss and were in bereavement counseling.

In April 2001, Bobby was having emotional problems and difficulty in school but the defacto parent was not taking him to counseling despite receiving extra money to do so. By October 2001, Bobby and his siblings were in counseling and the family was being more closely supervised. Bobby continued in counseling but had behavioral problems in school. He was developmentally on target but received low grades because he did not like to do his homework, had poor study habits and needed improvement in his attitude toward school.

By August of 2002, the defacto parent reported Bobby had no behavioral problems. The permanent plan continued to be long-term foster care and the case was transferred to Sacramento County.

Status reports from Sacramento County Department of Health and Human Services (DHHS) indicated Bobby was doing well in school, continuing therapy and had no behavioral problems. Adoption by the defacto parent appeared likely and the court terminated parental rights in December 2003.

In 2004, Bobby had some school attendance problems that were resolved, appeared to have no other current problems and had a summer job. In the fall, 16-year-old Bobbys grades were good and he expressed an interest in college. However, his behavior had deteriorated and he asked to be placed in a group home. The issues were resolved in a meeting and the defacto parent reported he was doing much better.

Early in 2005, DHHS reported Bobby was doing very well. His behavior and attendance at school were good and he showed no need for special education. Bobby continued in counseling. He was referred to the Independent Living Program (ILP) and was learning some emancipation skills from the defacto parent. Bobby expressed interest in the ILP workshops. The social worker had made progress in, or completed all section 391 requirements for eventual termination of jurisdiction except providing Bobby various documents. Section 391 requires the social worker to report that various information and documents have been provided to Bobby along with specific assistance to secure education, funding, housing and employment as appropriate to the specific case.

In summer 2005, Bobby and the defacto parent again had issues which they ultimately resolved. Bobby was working full-time during this period.

According to the DHHS report in October 2005, Bobby continued to do well in the defacto parents care. Bobby was now attending a continuation school and was expected to graduate on time. No behavior or attendance problems were noted and Bobby had no special education needs. He continued in counseling.

The DHHS review report in the spring of 2006, stated the social worker had tried to get Social Security Income funding for Bobby, now 18, due to his diagnosis of Post Traumatic Stress Disorder and anxiety, but funding was denied. According to the defacto parent, Bobby was doing good in the home and was described as a sweet child who was active in the church. He was in the 12th grade at the continuation high school and was expected to graduate before he was 19. While Bobby had some unexcused absences from school, no behavior problems were noted. He did not require special education services. Bobby still was on medication for anxiety and in therapy. Regarding the section 391 requirements, Bobby had not yet been provided with all his documents or been assisted with securing insurance, housing, employment, vocational training or college. Bobby said he preferred to emancipate, graduate from the continuation school and remain in his current home with his family. The permanent plan for Bobby was emancipation and the social worker and ILP worker were assisting him in completing all section 391 requirements.

The report filed in October 2006 stated Bobby continued to do well in the defacto parents home. He had recently enrolled in a school which focused on students who were earning their high school diplomas and learning life skills and did not require special education. Bobbys last contact with the ILP was in April 2006 and he had made minimal progress toward acquiring emancipation skills. Although Bobby had participated in developing his plan, he now said he wanted to stay in foster care until he was able to live on his own. The defacto parent said Bobby was unable to cope with responsibility due to his traumatic history. The permanent plan remained emancipation.

In February 2007, DHHS filed a petition to modify the permanent plan from long-term foster care to emancipation. Bobby was expected to graduate from high school but had left his placement and his whereabouts were unknown. Bobby was aware he could receive ILP services until he was 21. The court set the matter for hearing. In March 2007, DHHS notified the court Bobby had just been released from jail.

The review report for April 2007 stated Bobby returned to the defacto parents home after his release from jail. Bobby reenrolled in school and only needed a few credits to graduate. School records for this period indicate Bobby was frequently absent, chose to socialize in class and was not doing the work required. When he did participate, his grades were good. He remained on medication and continued to make slow progress in therapy. Bobby was first referred to ILP in April 2005, had no contact with the program after April 2006, was rereferred in March 2007 but had made minimal progress toward independence. Bobby was provided all the documents required by section 391 except the fathers death certificate because the location and date of death had not been determined. The defacto parent stated Bobby was unable to live independently. Bobby wanted to stay in long-term foster care until he was ready to handle self-maintenance.

The defacto parent insisted the social workers failed to meet their responsibilities to address Bobbys special needs in retaliation for the defacto parents filing a claim against the county regarding the death of Bobbys sibling. The defacto parent also represented that Bobby had mental and physical health problems and provided a psychiatric evaluation from 2005 which led to his current medication for depression.

At the combined hearing on the petition for modification and status review, the social worker informed the court she had not yet been able to locate a death certificate for Bobbys father. The social worker also informed the court that Bobbys doctor opined Bobby had limitations with basic life skills, although the basis for this opinion was unclear, and the doctor was concerned about Bobbys depression. The ILP worker told the court that Bobby had completed a transitional housing application and a social security card was issued for him. When questioned by the court, Bobby stated there was no exact date for him to finish his high school credits as it was up to him to complete the work. In the face of Bobbys counsels request to continue the dependency, the court questioned why the dependency should be maintained when Bobby was not complying with services or utilizing the programs available to him. The defacto parent insisted DHHS had not provided Bobby proper services and failed to refer him for Social Security benefits. Counsel for DHHS responded that he had been referred twice, once in 2005 and again in 2007, but was twice denied benefits as ineligible. The court observed that Bobby was now able to file for benefits on his own behalf.

The court ascertained that if the dependency was terminated Bobby still would be able to continue school and counseling, had Medi-Cal coverage until he was 21 and access to the ILP services. The court concluded Bobby had services available but had not participated in them although he had the ability to do so. The court granted DHHSs request to terminate the dependency, while recognizing that Bobby was diagnosed with depression, but found nothing to warrant continuing to maintain his dependent status.

Discussion

I

The Courts Order Refusing to Maintain Dependency Jurisdiction

Bobby contends the court abused its discretion in failing to maintain dependency jurisdiction. He argues the court should have considered whether termination would give rise to an existing or reasonably foreseeable harm to him, citing his lack of a high school diploma and history of difficulties in school; the lack of assistance in participating in the ILP program; his status as a legal orphan; his severe mental health problems; the poor quality of his placement; and his arrest.

The defacto parent also raises this issue, but despite her status as defacto parent, lacks standing to assert it because she is not aggrieved by the juvenile courts order. (In re Frank L. (2000) 81 Cal.App.4th 700, 703; In re Carissa G. (1999) 76 Cal.App.4th 731, 736-737.)

The purpose of dependency proceedings is to provide maximum safety and protection of children who are abused or neglected or at risk of abuse or neglect. ( 300.2.) The court may retain jurisdiction over any person who is found to be a dependent child of the juvenile court until the ward or dependent child attains the age of 21 years. ( 303.) The court may continue jurisdiction after the child reaches the age of 18 if it finds that termination of jurisdiction would be harmful to the best interest of the child. ( 391, subd. (c).) When seeking termination of jurisdiction over a child who has attained majority, the county welfare department must submit a report verifying that certain services and information have been provided to the child. Specifically, section 391, subdivision (b) provides the county welfare department shall: Submit a report verifying that the following information, documents and services have been provided to the child: [] (1) Written information concerning the childs dependency case, including his or her family history and placement history, the whereabouts of any siblings under the jurisdiction of the juvenile court . . . directions on how to access the documents the child is entitled to inspect under Section 827 and the date on which the jurisdiction of the juvenile court would be terminated. [] (2) The following documents, where applicable: social security card, certified birth certificate, health and education summary as described in subdivision (a) of Section 16010, identification card, as described in Section 13000 of the Vehicle Code, death certificate of parent or parents, and proof of citizenship or residence. [] (3) Assistance in completing an application for Medi-Cal or assistance in obtaining other health insurance; referral to transitional housing, if available, or assistance in securing other housing; and assistance in obtaining employment or other financial support. [] (4) Assistance in applying for admission to college or to a vocational training program or other education institution and in obtaining financial aid, where appropriate. [] (5) Assistance in maintaining relationships with individuals who are important to a child who has been in out-of-home placement in a group home for six months or longer from the date the child entered foster care, based on the childs best interests.

The court may terminate jurisdiction if the county welfare department has offered these required services and the child has refused the services. ( 391, subd. (c).) In determining whether to terminate jurisdiction over a child in long-term foster care, the issue to be addressed is the best interest of the child. The court does not review the original basis for exercising jurisdiction under section 300 . . . . The burden of proof on the issue of termination rests with the party seeking to terminate jurisdiction and the decision whether to terminate jurisdiction falls within the sound discretion of the juvenile court. (In re Robert L. (1998) 68 Cal.App.4th 789, 793-794.) However, termination of dependency jurisdiction should not place the child in circumstances where there is existing and reasonably foreseeable future harm to the welfare of the child. (Id. at p. 794; see also In re Holly H. (2002) 104 Cal.App.4th 1324, 1333.)

In this case, the social worker referred Bobby to the ILP and complied with section 391 in providing documents, information, and assistance to him. Bobby declined to avail himself of the services and workshops offered to him, which were intended to assist him in moving toward an independent adult life. At the time of the hearing, Bobby had again been referred to the ILP and its services would continue to be available to him if he chose to utilize them. He had medical insurance which would cover his ongoing therapy and medication. The social worker had assisted him in completing an application for transitional housing, although it was unclear that he would need this since he was apparently able to continue living with the defacto parent. The social worker had twice applied for Social Security benefits on Bobbys behalf but the applications had been denied because he was found to be ineligible. He had been able to secure part-time work on his own and the ILP services could further assist him in this regard. His failure to complete high school was evidently due to his own lack of effort and not any barrier to learning. Years of reports indicated that, when Bobby performed poorly in school it was because he did not do the work, had a poor attitude, socialized in classes rather than working and had unexcused absences, but, when he did engage in coursework, his grades were good. The social worker is required to assist the child in educational endeavors where appropriate, but section 391 does not require that the department assure the dependent obtain [a] high school diploma. (In re Tamika C. (2005) 131 Cal.App.4th 1153, 1163.) Unlike the dependent in Tamika C., appellant did not attend class and was unwilling to use services offered to him. (Id. at p. 1168.) Bobbys testimony established that the determination of when, if ever, he achieved a high school diploma was wholly in his hands.

Based on the evidence presented, the juvenile court properly concluded that termination of the dependency would not place Bobby in circumstances where he would be at risk of harm. Indeed, the court found Bobby would have the same services available to him if the dependency was terminated and he had the ability to access any other necessary services on his own if he chose to do so. This is not a case of a dependent child who lacks family or resources and will be left on the street to fend for himself, but rather of a dependent child who, while living with relatives, has chosen not to use the services available to prepare himself for a productive adulthood.

While the facts here do not present a situation as extreme as in In re Holly H., supra, 104 Cal.App.4th 1324, where the dependent child rejected nearly all offers of assistance and a continued dependency could not be expected to prevent future harm, nor as felicitous as that in In re Robert L., supra, 68 Cal.App.4th 789, where no future harm was envisioned and the sole purpose of the dependency would have been to continue special assistance to the dependent children to complete their college education, neither do they establish justification for continuing the dependency. Unlike the dependent child in In re Tamika C., supra, 131 Cal.App.4th 1153, who willingly utilized services to the best of her ability and was unable to participate in some activities through no fault of her own, Bobby has not put forth efforts to complete school or attend ILP services, but has instead chosen to involve himself in criminal activity, which is doubtless the greatest threat to his future well-being. Continuation of dependency proceedings will not prevent this. No abuse of discretion in terminating the dependency appears.

Bobby argues that termination of the dependency leaves him a legal orphan and increases the potential of future harm. We note that this dubious and speculative question was not raised in the juvenile court and has been forfeited. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) In any case, should Bobby be troubled by this state of affairs, the Legislature has provided a remedy for him in section 366.26, subdivision (i)(2), which describes a procedure to reinstate parental rights for a child in his position.

II

Appointment of Counsel

The defacto parent contends the court abused its discretion in failing to appoint counsel for her because it erroneously believed that it lacked the discretion to do so.

Appellants argument is correct. The juvenile court does have discretion to appoint counsel for a defacto parent and should have considered the issue. (Cal. Rules of Court, rule 5.534(e)(2).) However, because remand is not required, we need not address the matter further.

Disposition

The orders of the juvenile court are affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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