In re David B.
Filed 6/29/12 In
re David B. CA1/2
OFFICIAL REPORTS
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION TWO
In re DAVID B., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY
SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
DEANNA J.,
Defendant and Appellant.
A132472
(Alameda County
Super. Ct. No.
OJ09013716)
We last reviewed this dependency
case when Deanna J., the mother of David B., petitioned for an
rule 8.452) to vacate an order terminating reunification services and setting a
hearing to select a permanent plan under Welfare and Institutions Code section
366.26.
2011, A130538)), we rejected mother’s claims that substantial evidence did not
support findings of (1) a substantial risk of detriment were David returned to
her, or (2) that reasonable reunification services had been provided by real
party in interest Alameda County Social Services Agency (the agency). Here, Deanna J. appeals the juvenile court’s
orders denying her section 388 petition and terminating her parental
rights. We affirm.
BACKGROUND
Reunification
We first recount the circumstances
leading to the termination of reunification services. In early November 2009, a week after David was born,
the agency petitioned for dependency under subdivisions (b) and (g) of section
300 based on inability to care for him due to mother’s histories of substance
abuse and mental health problems, and continued mental instability. She had recently been “5150’d†under the
Lanterman‑Petris-Short Act (LPS) (§ 5150 et seq.) three times in as
many months, had a history of suicidal
threats and depression, and was diagnosed with bipolar and schizoaffective
disorders. The father was unwilling to
take David, already having assumed care of three older children he had with
mother, and was in the process of divorcing her. The allegations were sustained at a jurisdictional
hearing soon afterward. Mother was
absent but represented by counsel and was already receiving services. A further LPS commitment for her delayed
jurisdiction to January 2010, when the court declared dependency and ordered
reunification services for both parents.
Mother
was present for a six-month review hearing in July 2010, where the court
followed social worker recommendations to continue providing reunification
services to her for another six months, while discontinuing them to the
father. The father had effectively
surrendered the three other children to mother’s care in February, and she was
living at an “outreach ministry†where she planned to stay for a year. Her son Daniel had been diagnosed with autism
and required special care. Mother was in
partial compliance with her case plan.
She was progressing in mental health treatment with a psychiatrist and
therapist, was generally good about keeping appointments, and took her
medications. She had completed a
parenting course, had clean random drug tests, and had satisfactory visits with
David. David was well bonded in his
foster placement.
The
12-month review hearing was held in November 2010, and the social worker now
recommended terminating reunification services and adoption of a permanent plan
for David because mother had in effect abandoned her children—all four of
them. At the start of October, without
informing the agency, she had left her housing program, left her three
nondependent children in a custody arrangement with the case manager there, and
moved to Mississippi. She called the child welfare worker (CWW)
afterward to say she would be staying with a cousin, would take advantage of
family support and housing available to her there, and might move to Louisiana.
The
move came before mother’s ability to parent David and her three other children
together could be assessed, disrupted her visitation and parent-child
relationship with David, and left the CWW unable to see a substantial
probability that David could safely be returned to her care within another six
months. Mother loved her children, but
her unannounced departure raised questions about her judgment. Meanwhile, David needed stability and
permanency, and an adoption assessment had found him adoptable. He had adjusted to his placement, building a
relationship with his foster parents and other family members. Mother did not attend the hearing but
participated by phone. She disagreed
with the recommendation but understood the court’s limited alternatives, and
her counsel suggested placing David with a relative in Mississippi but also
recognized that there were competing interests.
The
court terminated reunification services for mother, finding in part no
substantial probability that David would be returned to her custody prior to
the expiration of 18 months from the date David was originally removed.
Our opinion denying mother’s writ
petition upheld challenged findings of detriment from return and reasonable
services, noting in part that David’s infancy at initial removal made the
default period of services six months (§ 361.5, subd. (a); In re Derrick S. (2007) 156 Cal.App.4th 436, 444-445), whereas
mother had effectively had 12 months, and that extending services any
further was neither promising nor practical with mother having left the
state.
the Plan Hearing
In December 2011, pending our
decision, David was removed from the foster parents who had cared for him since
January 2010 (the W.’s). This was done
because the foster mother, since August 2010, had been oddly insisting that
David had seizures, low weight, and other medical problems when repeated
medical observation, hospitalization, and tests did not bear out those
problems. There was also concern that
the foster mother, who had always resisted mother’s visitation, had been
fabricating reasons to frustrate reunification. The court ultimately denied efforts by the
W.’s to achieve de facto and adoptive parent status. Those are not issues posed by this appeal,
but the upshot is that David did not return to their care.
David was placed with new foster
parents (the S.’s) starting in mid‑December 2010, at 13 months old, and
had to form new caretaker relationships.
He made a good transition, was healthy, did not display the previously
reported medical problems, and began building attachments to his new foster
family.
In February 2011, the agency
proposed terminating parental rights and selecting adoption as the permanent
plan. Mother was “in reluctant
agreement†with adoption but preferred it be by her out-of-state relatives. Assessment of those relatives had begun for
potential adoptive homes, and the S.’s were also interested in adoption. Mother had not visited David since leaving,
but she called CWW Laura Luo, and the new foster mother, to check on how he was
doing. Father had ceased all contact
with David, and there is no direct challenge on this appeal to the eventual
termination of his parental rights.
Mother filed a section 388 petition
in April 2011, seeking to modify the orders terminating services and setting
the plan hearing, and instead order David (1) returned to her care in
Mississippi, with dependency dismissed, (2) returned to her care there under
family maintenance “with courtesy supervision,†or (3) placed with mother’s
relatives in Mississippi. The asserted
benefit for David under any of these options was to let him “grow up in his
natural family and have a relationship with his biological relatives.†The changed circumstances cited were that the
first foster mother had falsified his medical condition, interfering with
mother’s visitation; that mother had moved to Mississippi, stabilized on her
medication, sought a therapist, and secured affordable housing and family
support; and that she had her three older children in her care there. With her petition came a change of stance on
the adoption plan, from reluctant agreement to disagreement. An 18-month status review hearing later that
month left all operative orders unchanged.
The plan selection hearing
(§ 366.26), which had been stayed pending our decision on the writ
petition, proceeded on May 12, 2011, with mother traveling from Mississippi to
testify as to both plan selection and her modification
petition. And the matter was
continued to June 1 to allow investigation by the agency into the situation in
Mississippi should the court opt to grant modification. At the conclusion of the hearing that day
the court made its ruling, in light of the following facts.
Mother’s
situation was shown by documentary evidence and her testimony. She had moved to Mississippi because she
lacked family support in the Bay Area, had gone through a divorce, home
foreclosure and bankruptcy, was offered support by family in Mississippi, felt
unable to find affordable housing here (housing being an element of her
reunification plan), and feared loss of her other three children—14-year-old
daughter F.B., and twin boy and girl D.B. and G.B., nearly five years old. She rued leaving, knowing it
would jeopardize regaining David, but felt she had no way out and was unaware
yet of the problems David had while with the W.’s. Since November 2010, she had rented a
three-bedroom house in Ocean Springs, Mississippi, for $580 a month plus
utilities, several doors down from homes where two first cousins lived, and her
three older children had moved there in December. She was disabled and not currently working,
but had no problem with food, clothing or housing. She received child support, had help from
family, and was with her children when they were not in school. She was still looking for therapists for them
and would find one for David if he were returned to her. Her autistic son had special services
(unspecified) through the Autism Society of America and school district. She was seeing a therapist and another doctor
to manage her bipolar disorder, was stable, with monitored lithium levels, and
was taking Abilify and Trazadone daily. As alternatives to David being returned to
her, a cousin in her neighborhood, and another relative two hours away in
Louisiana, were being assessed under the Interstate Compact on the Placement of
Children (ICPC) (Fam. Code, § 7901). Mother had a visit with David under agency
supervision four days after her testimony but had not otherwise seen him in the
seven months since leaving. She had
telephoned the foster mother perhaps four times, had been in contact with CWW
Luo, and had spoken to David twice over the telephone.
Mother was aware of the agency’s
position against modification and serious reservations expressed in a recent
letter by Shalini Venktash, a senior case manager with long experience in
working with David through the SEED (Services to Enhance Early Development)
Program at Children’s Hospital and Research Center in Oakland. But mother’s testimony was apparently
emotional and convincing as she expressed love for David, her regret at the
circumstances and her own shortcomings, yet appreciation for what had been done
for David, support for his current foster parents, and an ultimate desire that
the court do what was best for David.
Attorney Marcie Neff, counsel for
David, was moved by the close of mother’s May 12 testimony to change her
position and support David going to her in Mississippi. Counsel for the agency, acknowledging “very
credible,†“genuine,†and “commendable†testimony by mother, adhered to the
agency’s position, based in part on the SEED Program position as articulated by
Venktash.
Venktash’s views were fully stated
in a final letter report filed two weeks later.
She had provided weekly infant-parent psychotherapy for the six months
before mother left, overlapping weekly parental and developmental guidance to
the W.’s for six months before David’s removal from that home, and since then,
the same guidance to the S.’s. Venktash
recounted David’s history of disruptions and loss of caregivers that began with
separation from mother soon after birth, then three months with a first foster
family that ended abruptly at their request, then life with the W.’s from ages
three to 14 months that ended abruptly when he was placed with the S.’s. Thus he had three abrupt changes in
caregivers in his first year of life, plus five months of unnecessary medical
treatments, hospitalizations, medications, and emergency room visits during the
W.’s’ inaccurate reports of seizure activity.
On the prospect of a further change
from the S.’s to mother at 19 months of age, Venktash wrote that, while
placement with biological parents is usually the first choice if at all
possible, this would “come at a serious cost to the child†at this point. This was a critical time in his life for
forming attachment relationships to “create deep, broad and far reaching
consequences that directly affect young children’s capacity for learning, their
sense of themselves as lovable and having agency in the world, and belief of
the world as a safe place.†His current
attachment figures were the S.’s, while mother was “a relatively unfamiliar
person in his lifeâ€; and “[i]n these formative years, when this sense of self
and others is being formed, each disruption, each move creates exponential risk
that the child cannot regain ground in gaining a firm and healthy sense of
himself in the world and in relationship to others.†Trying to cope with disruption and loss of
caregivers can require a child using all
his energies to create safety or adapt, “leaving little room for anything
else,†and forestalling development in all areas, including the brain. Examples of adaptive behaviors are excessive
dependence on caregivers, or avoiding them and being overly absorbed in
exploring the inanimate world. David
evidenced such behaviors when he came to the S.’s, showing a withdrawn affect,
clinginess, anxiety in separating from Mrs. S., and confusion in where to look
for comfort and security. He had trouble
sleeping and would wake up often throughout the night, something the S.’s eased
by sleeping in the same room with him.
David appeared to respond to stress by withdrawing and appearing
detached from adults, acting as if he did not need them, when his actual needs
were the opposite—signals that are difficult for caregivers to read.
Through much work with the S.’s,
Venktash wrote, these symptoms had eased, bringing many positive developmental
changes, including using more single words, jabbering with the S.’s, using them
for comfort, smiling and laughing more, and giving clear signals of his
needs. “[I]t is in his relationship with
[them] that David is able to show increased focus and expansion in his play
skills. David entered this caregiving
relationship with a compr[om]ised sense of himself based on his previous
experiences and it is within this attentive, responsive and sensitive
caregiving that David has shown improvement.
It should be expected that if there is yet another change, he would at
minimum regress to his previous behaviors and more likely they would be
magnified, and perhaps new behaviors may emerge; as once again he may feel his
world shaken up.†Should the court decide to place David in mother’s care, it
was “imperative to consider a carefully planned transition that will decrease
the impact of stress on David.†She
urged a minimum of four weeks of gradual and increasing transition time.
An addendum report by CWW Luo took
essentially the same tone in urging termination of parental rights, and Luo
recounted a visit she observed between mother and David. The S.’s brought David to the room, and he
did not notice mother at first. With the
S.’s in the room, he was able to interact with mother, and she was able to
follow his lead. When she offered to
lift him up to see trucks on the highway, however, he hesitated and tensed up a
bit, allowing her to pick him up but then “squirming down†after a few seconds
and asking for the S.’s to pick him up.
He watched as Mr. S. left the room and went out to greet him when he
returned. He refused to hug or give a
high five to mother while Mr. S. was gone, but did give mother a high five when
held by Mrs. S. “[I]n David’s mind,†Luo
wrote, “his foster parents are his primary caregivers, while his mother,
although she may not feel like a complete stranger to him, is at the most
somebody that looks and/or feels somewhat familiar to him.â€
At the foster mother’s home the next
day, Luo saw that David called Mrs. S. mommy, climbed on her lap, “scrubbed her
face and hair,†and looked comfortable with her. She was loving and nurturing yet firm when
setting limits, and David looked to her frequently for assurance.
Luo had gotten contact information
from mother from Mississippi but, as of the writing nearly two weeks later, had
not heard back yet from mental health providers and lacked information about
treatment content and goals. She had
learned that the older daughter was doing well in school. Daniel was enrolled in a special education program
two days a week, and was reportedly “ ‘smart [and] funny but extremely
impulsive and disregulated,’ †having little control over his own
behavior. School staff noted that he did
not mind mother. His twin sister was
home days, awaiting enrollment in Kindergarten, and was also a very active
child.
Luo noted again the lack of
opportunity to assess mother with the children already in her care, who had
experienced much disruption and instability themselves and would be adjusting
to being with mother full time again.
“For David, he would have to start from ground zero and he would need
tremendous help from the birth mother and from some level of therapeutic
support probably for a long time.â€
Uncertainties about the stability and care he could receive with mother
made the benefit of placement with her “highly questionable,†yet he needed
stability, permanency and consistent suppport.
Currently, he was with foster parents that had “provided for him and
state[d] their commitment to provide whatever he needs, including on-going
therapeutic support,†and Luo did not believe it was in his best interest to
return to mother’s care. The S.’s were committed to continued work with the
SEED Program therapist, as well as “very open†to future contact with the birth
family.
Mother appeared by telephone at the
continued hearing on June 1, 2011, and David’s counsel, Neff, began by saying
that she had been moved by mother’s “unselfish love†and “very emotional
testimony†at the last hearing, but now regretted having given her any false
hope. Having since had a long talk with
Venktash, Neff could no longer advocate David going to mother. His “relationship and emotional attachment
issues†made her unwilling to expose David to “risk what is already a really
fragile situation.†Mother’s counsel
urged that modification be granted but that, if it were not, mother be allowed
to have postadoption contact with David, and counsel for the agency conveyed
her understanding that the S.’s were in fact willing to allow mother continuing
contact.
The court seconded Neff’s view of
mother’s testimony, but denied modification.
Having praised mother’s testimony as “extremely compelling,†the court
stated: “I find the family history
extremely compelling also, but the decision has to be made and it has weighed
very heavily on my consc[ience] and my legal authority as a judge and my
humanity as a person, and this has got to stop now. [¶] I
believe that the best thing for your son under the circumstances is that he be
adopted.†The court added: “I am so sorry because I am sure this hurts
you terribly, which is the last thing that I want to do; but I have read so
many reports and felt so frustrated about the circumstances that this little
guy has been in and finally he seems like he’s in a place where he is loved and
nurtured where he will be safe and adored and I know that that’s what you want
for him, too.†The court praised mother
for her integrity but denied her petition, adding hope that she would have a
continuing relationship with David. The
court’s form order indicates that denial was because “[t]he proposed change or
order . . . does not promote the best interest of the child.†The court also terminated parental
rights.
Mother challenges the denial of her
section 388 petition. “A juvenile court
order may be changed, modified or set aside under section 388 if the petitioner
establishes by a preponderance of the evidence that (1) new evidence or changed
circumstances exist and (2) the proposed change would promote the best
interests of the child.
[Citation.]†(
799, 806.)
As indicated in our first opinion,
timing is important here. David’s
infancy upon removal presumptively limited services to six months
(§ 361.5, subd. (a)(1)(B)), and the petition came 18 months after removal,
and six months after the termination of a year of reunification services and
the setting of a plan hearing. Until a
section 366.26, hearing is set, a parent’s interest in reunification is given
precedence over the child’s need for stability and permanency, but the focus
afterwards shifts to the child’s needs, casting on the parent the burden to
support the proposed change. (
419-420; In re Stephanie M. (1994) 7
Cal.4th 295, 317; In re Mary G.
(2007) 151 Cal.App.4th 184, 204.)
The ruling is committed to the trial
court’s sound discretion, not to be overturned unless an abuse of discretion is
clearly established. We ask only whether
the trial court exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination, and cannot substitute our own
decision for that of the trial court when two or more inferences can reasonably
be deduced from the facts. (
Mother’s having established a change
of circumstances seems undisputed on appeal, and ample evidentiary support for
that implicit finding compels us to accept the agency’s apparent concession on
the point. The problem is the best interest
prong of the section 388 test. Yes, as
mother points out, section 388 provides an important escape mechanism of due process protection in the dependency scheme
for important changes arising between the termination of services and final
determination of custody. (
1497, 1506; In re Kimberly F. (1997)
56 Cal.App.4th 519, 528; see generally In
re Marilyn H. (1993) 5 Cal.4th 295, 309.)
But: “It is not enough for a
parent to show just a genuine change
of circumstances under the statute. The
parent must show that the undoing of the prior order would be in the best
interests of the child.
[Citation.]†(
on her petition and could not muster much support for the best interests
element. On appeal, she asserts only
that “it would be in David’s best interest to grow up with his mother and
siblings and with his natural family.â€
Mother’s status as a natural parent did not alone satisfy the best
interests test of section 388. (
181, 192.) And she never established
that David had a significant relationship with any of his siblings, or other
relatives, or even a strong relationship with herself.
Mother’s argument amounts to an
optimism that, somehow, it would prove to be in David’s best interests over an
extended period of time to get to know her, his siblings, and his extended
natural family. The court, however, had
to decide what was in David’s best interests at the time of the ruling. David needed stability, permanence, and
support then, and he was getting all of those things from the S.’s, who also
wished to adopt and were very open to having his contact with mother and the
biological family continue on. Not only
that, but overwhelming evidence shows that three abrupt separations from
caregivers in about a year’s time had left the 19-month-old with serious
attachment difficulties that were likely to worsen or, at the very best, send
him back to square one. This would
happen even with the most loving and nurturing new caregiver, and it made any
further change of placement very risky for him.
Some of the disruption in caregivers was certainly not mother’s fault,
but that was how the court had to assess the case.
The grave risk posed by another
disruption also answers mother’s reasoning that some of CWW Luo’s concerns
about David getting adequate therapy or other care could have been overcome, or
that placing him with relatives, or with mother under a program of family
maintenance (perhaps under the ICPC), might have ameliorated those
concerns. The fundamental point was that
it was a further disruption in caregivers, in David’s particular situation,
that posed the biggest risk and would throw him back to square one. SEED Program case manager Venktash’s
recommendations for a careful transition and long therapeutic support was a
backup position to minimize trauma and loss to David if the court
should be no further disruption.
No abuse of discretion is shown in
the denial of the section 388 petition, and since mother’s only arguments
against the ensuing orders terminating her parental rights are based on the
section 388 error predicate (Kimberly F.,
supra, 56 Cal.App.4th at pp. 535‑536),
we must affirm the ensuing orders as well.
The orders of June 1, 2011, denying
the section 388 petition, terminating parental rights, and selecting a
permanent plan of adoption are affirmed.
_________________________
Richman,
J.
We concur:
_________________________
Haerle, Acting
P.J.
_________________________
Lambden, J.
name="_ftn1" title="">[1] Further unspecified section references are to the Welfare and
Institutions Code.
