In re
Filed 7/18/12 In re Regina B. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SEVEN
In re REGINA
B., a Person Coming Under the Juvenile Court Law.
B237286
(Los Angeles
County
Super. Ct.
No. CK79000)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DEREK B. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of
County, Rudolph A. Diaz, Judge. Affirmed as to Derek B; dismissed as to F.L.
Aida
Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant
Derek B.
Lee
Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant
F.L.
John
F. Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
A
father appeals from the dependency court’s orders following a permanency review
hearing pursuant to Welfare and Institutions Code section 366.22, terminating
the father’s reunification services
and placing his “medically fragile†daughter in a long-term living
arrangement. We affirm.
FACTUAL AND
PROCEDURAL SUMMARY
In
August 2009, the Department of Children
and Family Services (the Department) received a referral alleging
four-year-old Regina B. and her seven siblings were at risk of general neglect.
has “cerebral palsy with spastic quadriplegia, profound mental retardation,
seizures,†and a “g-tube.†She is blind,
in a special wheelchair with leg braces and is non-verbal. She is “medically fragile.†An earlier case had been closed after Regina’s
mother M.W. voluntarily placed Regina
in a long-term medical care facility.
M.W. was “overwhelmed†and wanted Regina
placed “immediately.†However, since
placing Regina in the facility and visiting her once in April, M.W. had made no
further contact with Regina or the facility, and the pediatric surgery clinic’s
repeated attempts to reach M.W. to obtain necessary authorization to replace
Regina’s g-tube were unsuccessful. The
other seven children and M.W. reportedly lived with F.L., the father of five of
Regina’s siblings. The Department tried to reach Regina’s
father Derek B. without success.
In
September, the Department received a call from Regina’s
maternal aunt who said four of the children (Shan. L., 13; Sham. L., 12; F.L.
Jr., 7; and M. L., 6) were living with a cousin in Kern
County but she did not know the
whereabouts of M.W.’s other three children (G.L., 11; Aaliyah B., 3; and Joseph
W., 8 months); she said M.W. was “strung out on drugs.†M.W. had left the children with her mother
who is disabled with Alzheimer’s disease so this cousin had brought the
children to her home. The social worker
contacted the two eldest children who said their mother left them and their
siblings alone and unsupervised for extended periods of time; Shan. could not
remember the last time she had seen her mother.
M. L. said their mother’s cousin and their uncles took care of
them. Sham. said G. L. was with her
“auntie,†Joseph was with his father (Christopher M.) and Aaliyah was with her
father Derek.
Later
that month, Derek contacted the social worker and reported M.W. was homeless and
on drugs (crack cocaine); he said M.W. had left Aaliyah with him in July. He said he had been released from prison in
April so he had not participated in reunification services. When the social worker asked Derek about the
circumstances of his incarceration, the phone was disconnected and when she
tried to call him back, the call went to voicemail. The Department had received numerous
referrals regarding the family dating back to 1998.
The
Department filed a Welfare and Institutions Code section 300 petition on behalf
of the children alleging M.W.’s medical neglect of Regina,
general neglect of her siblings and substance abuse placing the children at
risk. (All further statutory references
are to the Welfare and Institutions Code.)
The Department alleged Derek had failed to provide for Regina’s
and Aaliyah’s support.
At
the September detention hearing, Derek
was found to be Regina’s and
Aaliyah’s presumed father. The
dependency court found a prima facie case for detaining the children, and over
the Department’s objection, released Aaliyah to her father’s custody.
In
the October jurisdiction and disposition report, the Department advised the
court of efforts to contact M.W. When
the social worker called her cell phone number, Derek answered. He denied living with M.W., indicating he
only had contact with her when she called.
The older children confirmed M.W.’s drug use and failure to supervise
them. Derek said M.W. had lost her house
and became homeless when Regina was
placed in the medical care facility; he claimed M.W. had only used drugs for
two or three months. He denied he had
failed to provide for Regina and
Aaliyah and said he was doing what he could.
The
Department next reported that Derek had a 34-year criminal history, with felony
convictions for robbery, assault with a
deadly weapon on a police officer or firefighter, multiple convictions for
possession or purchase of cocaine base for sale, possession of a controlled
substance, obstructing or resisting an executive officer and tampering with a
vehicle. He said he had been in prison
four or five times, and the last time was in 2006-2007. He said he had a 2009
conviction for the federal offense of conspiracy to distribute drugs for which
he was sentenced to four years probation and was supervised through the
Department of Probation in Inglewood. He did not have his own home. He and Aaliyah were living with his sister
and her three children in a three-bedroom apartment, and Aaliyah slept with his
sister and a cousin. In the Department’s
assessment, Derek “[wa]s really not prepared to be a parent.†Although he had numerous drug arrests, he had
never participated in drug treatment or counseling. He denied using drugs or alcohol. Regarding his criminal record, he said,
“[W]hat black man growing up in the ghetto doesn’t have a criminal history?†It was suggested he would benefit from drug
treatment, parenting classes and extensive individual
counseling to address his pattern of criminal behavior. Aaliyah was detained and placed in foster
care.
At
a hearing on October 20, the Department informed the court Aaliyah had been
detained and an amended petition would follow; the court ordered monitored
visitation for Derek with Regina at
the medical facility. Derek said he was
in touch with M.W. and would have brought her to court that morning if he could
have. In the first amended petition, the
Department alleged Derek’s 34-year history of substance abuse, cocaine use,
status as a registered controlled substance offender and criminal history
rendered him incapable of providing ongoing care for his children and placed
them at risk of harm. In the accompanying
report, the Department advised Derek had admitted to the lengthy criminal
history; the social worker had been unable to follow up with him because he was
not at the paternal aunt’s home and his phone had been disconnected.
At
the October 23 hearing, Derek’s counsel requested Aaliyah’s placement with the
paternal aunt with whom she had been living; Derek had moved out. He said he would be homeless if he could not
live with her. Later, the Department
advised the court that when it tried to assess the paternal aunt’s home for
Aaliyah’s placement, the aunt would not allow the social worker into her home,
saying she was unable to take full responsibility for her. She said she wanted to wait to see if Aaliyah
would be returned to Derek; if not, she said, she would allow the assessment
and placement in her care.
In
its December report, the Department advised the social worker had interviewed
M.W., and she denied smoking or using drugs or alcohol. She said she met Derek in 2002, but denied
she was with him when he was selling drugs and said she was raising all of her
children on her own; she said she did not get any help from anyone. She said she was “tricked†into placing Regina
in the medical care facility and then stopped receiving the money she had been
receiving for Regina’s care so she
was homeless. She said Derek did take
care of Aaliyah, communicating with her all the time and buying her new
clothes. Derek denied having a substance
abuse problem. He said he was “just a
petty crook in the streets,†“only trying to make ends meet, but I won’t be
doing anything else illegal.†“[Y]ou
make mistakes to earn a quick buck in the streets.†He said he did struggle with the police
officer, “but how could you not struggle?
I was wrong, served time, paid my debt, and I am a new man. I received probation because I am a new
man. I can’t discuss the case because it
is sealed.†He said he knew how to care
for Regina, knew how to administer
her medications in her g-tube, how to feed her, how to work her nebulizer. He said he knew her body temperature cannot
change on its own, she has a “very weak immune system†and “[h]er bed has to be
spotless.â€
Derek’s
probation officer told the social worker he could not disclose certain and
specific information regarding his probation terms and services because “there
are problems with probation releasing information to outside agencies,†but
said Derek had been in full compliance since his release from jail. Derek had attended a parenting class but the
facilitator said Derek had slept through the meeting; Derek was asked not to
return because he could not identify any behaviors he needed to change and the
program did not assist parents involved with the Department. He was not enrolled in any other parenting
classes. He was enrolled in but had not
yet attended individual counseling. The Department recommended Aaliyah’s
continued placement.
Regina
was hospitalized with a high fever, coughing and heavy secretions. She had previously been hospitalized with the
same symptoms and pneumonia for two weeks in August, two weeks in October and
11 days in November. Doctors were
planning to perform a tracheotomy to help with Regina’s
breathing and extra secretions. Regina
was receiving special education services twice a week.
The
Department filed a second amended
petition in December. At the time of
the interim review report filed that month, the pediatrician (Dr. Soberano) at Regina’s
medical care facility (Gerelyn Pediatrics) indicated Regina
would not be readmitted due to her repeated hospitalizations and need for a
higher level of care; she required “deep suctioning and 24-hour licensed nurse
care†which Gerelyn Pediatrics was unable to provide. M.W. was refusing to cooperate with the
Department. She came to a November
meeting with Derek but stayed in the car while he participated. She did not appear for subsequent
appointments and efforts to contact her were unsuccessful as her listed phone
number was out of service and her address could not be verified. The Department noted Derek’s criminal history
did include violent offenses, and the social worker was awaiting a return call
from Derek regarding specifics on his enrollment in parenting and participation
in counseling. Derek had reported that
he had visited Regina twice since
her hospitalization and was in communication with her doctors.
As
of January 2010, Regina remained
hospitalized but was scheduled to be discharged to Totally Kids in Sun
Valley. The social worker
was still attempting to confirm Derek’s enrollment in court-ordered
programs. He was visiting both Regina
and Aaliyah frequently. At the
adjudication hearing on January 25 and 28, the dependency court declared the
children dependents within the meaning of subdivisions (b), (g) and (j) of
section 300, and the matter was continued for a contested disposition
hearing.
As
of March, Regina had received a
tracheotomy tube to help with her breathing, had been placed with Totally Kids
and was doing well. Derek had not
visited her since her placement. Aaliyah
was placed in a foster home with her half-sisters, Shan. and G.L. Derek had been referred for on-demand drug
testing and all results were negative.
He was reportedly cooperative in the S.E.A. Parents Helping Parents
program. He had completed 11 of 20
sessions. He was seen by a Dr. Clark at
Kedren Community Mental Health for weekly individual counseling who said he
would write a progress letter regarding Derek’s attendance. The Department recommended Aaliyah’s return
to Derek’s custody. The dependency court
ordered Aaliyah’s release to Derek on condition that he continue participating
in court-ordered services with negative drug testing results.
At
the disposition hearing in April, the children were declared dependents. The dependency court ordered Aaliyah placed
with Derek under the Department’s supervision and ordered Regina
placed under the Department’s supervision for suitable placement. Derek was ordered to continue random drug
testing with completion of a drug program upon any missed or dirty test, and he
was ordered to complete parenting and individual counseling to address the
issues leading to the children’s detention, including his 34-year criminal and
drug history. The dependency court
advised, “Before there can be reunification, the parents will have to
demonstrate the ability to meet the physical and emotional needs of the
children and the ability to provide stable and appropriate housing.â€
In
May, Regina was hospitalized again.
According to her treating physician’s report, she was a “severely
neurologically impaired, former 30-w[ee]k preterm girl with cortical blindness,
seizure disorder, static encephalopathy, gastrostomy and tracheostomy tubes,â€
and she was now febrile with nasal flaring and “convulsing all four extremities
with incessant coughing.†Dr. Lin noted
spending 90 minutes coordinating services for her. It was anticipated she would be discharged
once she could remain afebrile and “off a ventilator with good respiratory
status.†Later Regina was discharged to
Totally Kids.
As
of the Department’s status review report in October, Derek had completed
parenting classes in June and was participating in individual counseling. He continued drug testing with negative
results, and his probation officer had confirmed his continued compliance. However, Derek was arrested in September for
making criminal threats and filed a complaint against police because they had
strip searched him; he said he was only charged so he could be searched and
then charges were dropped. He said he
received a letter two weeks later indicating he was being charged with domestic
violence, and officers had seen him grab M.W. by the arm. In January 2010, he had been charged with a
misdemeanor domestic violence offense, but he provided the social worker with a
copy of a dismissal of those charges.
M.W. said there had been a misunderstanding; they had been arguing and
someone called the police.
According
to the latest police report, M.W. said Derek “approached her angry†because she
had not called him. She said they had an
“off and on†dating relationship for the last seven years. He grabbed her with both hands and pushed her
against the wall, saying, “You make me take this to the next level.†She told officers this was the phrase he had
used in the past before physically assaulting her. Two weeks earlier, she said,
he had used the same phrase before causing a laceration to her lip with his
fist. At the time of the current
incident, he had been pushing her toward the alley, saying, “Let’s go to the
alley so I can set you straight.†M.W.
told police she was in fear for her safety and was relieved the witness had
called the police. Although no charges
were ultimately filed, the social worker could not confirm whether M.W.’s
non-cooperation was the reason.
The
social worker further reported Derek and M.W. had been seen together in the
courthouse, with Derek attempting to hold her hand. The Department expressed concern about
Derek’s relationship with M.W., particularly with Aaliyah in his custody, given
the unresolved domestic violence issues and M.W.’s continued drug use. Aaliyah was doing well in Derek’s care and
said she like living with him and going to kindergarten.
Regina
remained at Totally Kids, and “despite her medical condition,†remained
stable. During visits with Regina, the
social worker observed her to be “well cared for†there, with good personal
hygiene, staff “very attentive to her needs,†and her room “always well kept
and clean.†She reportedly appeared
“happy†but was “not able to respond.â€
Given her overall condition, Totally Kids remained the “appropriate
plan,†and the Totally Kids facility ensured Regina’s medical, social and
therapeutic needs were met. The social
worker with Totally Kids (Melanie Ellis) reported that Derek needed to complete
an independent 48-hour training in order to care for Regina but the training
would not be scheduled until Derek found a “back-up helper.â€
Ellis
reported Derek visited three times per week and was “very active†and
participated in Regina’s care, asking many questions in this regard. Derek said he was still living with his
sister but was in the process of finding his own home and looking for a backup
caregiver so he could begin his 48-hour training.
As
of the review hearing in October, the Department’s counsel noted prior
incidents of domestic violence involving M.W. and Derek, and it appeared they
were in a relationship. Two weeks
earlier, M.W. was under the influence of drugs and Derek was with her at the
time. In light of the circumstances,
the Department requested an order for Derek’s participation in domestic
violence counseling which the children’s counsel joined. Noting this new information was “a concern,â€
the dependency court ordered Derek to complete a domestic violence
program. Derek was found to be in
partial compliance with his court-ordered services. He was advised that failure to participate in
and make substantial progress in court-ordered treatment constituted prima
facie evidence that return to his care would be detrimental. The matter was continued to November for
12-month review. (§ 366.21, subd. (f).)
Derek
was given referrals for domestic violence counseling in late October, and he
told the social worker a maternal aunt would be his backup caregiver for Regina
but he could not give her a name.
In
its November status review report, the Department informed the court Derek had
not completed the “necessary medical training†and had not found appropriate
housing. Although he was “making
significant progress,†the Department stated, “he is not ready to care for
[Regina] due to [her] significant[,] fragile medical condition.†The Department recommended another six months
of reunification services for Derek.
Derek requested a contested hearing.
As
of the January 2011 progress report, the Department indicated Derek was to
start domestic violence counseling that month.
He and a prospective backup caregiver (Shameka K.) had completed half of
the 48-hour nursing and respiratory training to care for Regina, and they were
to complete the remaining 24 hours in January.
The Department reported Regina could not leave her current placement due
to her ongoing medical condition. Even
if Derek completed the remaining 24 hours of training, the Department could not
recommend Regina’s placement with Derek as he had just enrolled in a domestic
violence program and did not have appropriate housing. He was living with his sister and said there
was no room for Regina.
At
the January hearing, the Department’s counsel said Regina was a “very special
needs child,†with “a myriad of serious and potentially life-threatening
medical conditions,†who had been hospitalized throughout the pendency of the
case. She said Derek was living in his
sister’s apartment, and she had already expressed she was unable to care for
Aaliyah, a child with no medical
disabilities or specialized needs.
She said Derek’s ongoing relationship with M.W. involving domestic
violence and lengthy criminal history was “really distressing,†particularly
because there was “absolutely no disclosure†by Derek. Therefore, he appeared “pseudo-compliant,â€
but progress was lacking. She requested
an order for Regina’s continued suitable placement with Totally Kids with
continued services for Derek.
Regina’s
counsel joined in the Department’s request, emphasizing her numerous medical
conditions and arguing the “quality of care [Regina] require[d wa]s very high,â€
but it appeared Derek was not in a position to provide such care.
Derek’s counsel
argued he was in full compliance and Regina should be placed in Derek’s
custody. The dependency court applauded
Derek’s desire to be as involved in Regina’s life as he had demonstrated. However, the court emphasized, “[Y]our two
children are situated differently.â€
Regina is a “very medically fragile child.†As his own counsel had acknowledged, Derek
did not have room for Regina and he still needed to complete a 52-week
program. The dependency court ordered
Regina to remain suitably placed, with family preservation services for Derek
to include assistance in paying for and getting a bigger apartment for him and
Aaliyah with room for Regina. Reunification
services for M.W. were terminated. The matter was continued to March.
Meanwhile, in
January, the Department filed a section 342 petition as to the children after
Shan. disclosed her mother’s former boyfriend (Joseph’s father Christopher) had
sexually abused her. Derek told the
social worker he knew the allegations were true. He said he knew for a fact M.W. made her
eldest daughter “do sexual things for Christopher,†and said he (Derek) “got
[M.W.] on tape confessing everything that happened.†He said he had told her he would tell the
social worker if she did not get help for her “crack habit†but she never
did. He said the social worker only knew
about the reported incident that had occurred in 2008, but said it was not the
first time, and he recounted a number of other instances of drug use and sexual
conduct involving Shan. with Christopher and other minors in front of the
children, including while M.W. was giving birth to Joseph at home in the next
room, but he (Derek) said nothing until Shan. disclosed the abuse in 2011. (Christopher denied the allegations; he said
Derek had a problem with the baby conceived while he (Derek) was in prison,
said he would “put us through hell,†and “caused this thing to snowball like
this.â€
In another
interview, Derek reiterated that he had knowledge of the sexual abuse and said
Shan. performed oral sex on Christopher.
He again described another sexual incident involving Shan., Christopher
and M.W. together, saying he (Derek) had lived with the three for a time.
In its March
status review report, the Department said Derek was attending individual
counseling and participating in domestic violence counseling. In February, the Department had agreed to
provide $3600 toward move-in fees and first month’s rent to assist him in
finding a home, and the landlord was expected to receive the money “in the next
couple of weeks.†Derek and his backup
caregiver had completed the 48-hour training, and he continued to visit Regina
three times a week for three hours.
Family preservation services were to start. A meeting was scheduled for March 15 to help
Derek obtain medical equipment and in-home nursing. Once home, Regina would receive Social Security
Income (SSI), In Home Supportive Services (IHSS) and Cal-Works assistance;
Derek was already receiving Cal-Works assistance for Aaliyah. Derek said Regina would stay at Totally Kids
until his home was ready. The Department
recommended Regina’s placement with Derek once he obtained appropriate housing
and a home of parent order could be made.
Upon Regina’s
counsel’s request, the dependency court set the matter for a contested 18-month
permanency review hearing. (§
366.22.) Regina’s counsel noted there
was no information from any treating professionals addressing the level of care
Regina needed and said it was critical to understand what Regina needed in
terms of 24-hour care as she was non-verbal and non-ambulatory.
Later that month,
the social worker and her supervisor met with Totally Kids staff and Regina’s
attending physician to discuss her care.
Dr. Weiss said Regina had made a lot of progress and was doing
well. A discharge planner was reportedly
helping Derek assemble necessary medical equipment and supplies, and Regina
would qualify for 16 hours of in-home nursing care. It was anticipated Derek would move into his
new home on March 24 and Regina’s anticipated discharge date was May 13. Totally Kids staff provided the following
list of physician’s orders. Regina was
to (1) have her vital signs checked every four hours, then every six hours if
stable; (2) have her g-tube cleaned every eight hours; (3) have her tracheotomy
tube and site cleaned daily; (4) receive water flush before and after
administration of medication and have her g-tube placement checked for patency
prior to feeding and medication administration; (5) have her diaper changed and
be cleaned and wiped with petroleum jelly applied after every diaper change;
(6) have her g-tube flushed with 155 ml of water every four hours for
hydration; (7) receive all of her medications through her g-tube; (8) have a
gastric residual checkup every hour; (9) have her g-tube connector changed
weekly; (10) have her tracheotomy tie changed daily within one hour after a
shower or bath; and (11) be suctioned every two hours. The Department continued to recommend
Regina’s discharge and placement in Derek’s custody.
At the contested
hearing in April, Regina’s counsel withdrew her request for contest. Derek’s counsel said the Totally Kids medical
team would be able to release Regina earlier than May; they were only waiting
for the dependency court’s orders. The
Department wanted to assess Derek’s new home later in the month so the matter
was continued to May 5 for the assessment to take place. According to last minute information for the
court, medical equipment was to be delivered to his home on May 9 for Regina’s
discharge on May 11, but the Department reported Derek had not made himself
available for the Totally Kids social worker (Ellis) to make a home assessment on
April 21 as scheduled. The matter was
continued to June 23.
On May 10, the
Department reported Totally Kids had delivered the necessary medical equipment,
but Ellis had concerns about Derek’s ability to care for Regina. She said Derek was rushing the situation and
was not doing his part. She said he did
not have a plan for Regina’s transportation and was concerned with his housing
as he only provided $600 toward his $1200 rent.
Derek’s counsel told the court Derek had a plan and had secured a van
for Regina’s transportation. She said
the issue of Derek’s payment of rent would not be a problem as long as Regina
would be released to his custody because he would get money for the month of
June for her care.
Regina’s counsel
said she had to express her ongoing concern about the circumstances and said
she was not convinced Derek was ready to take on Regina’s day-to-day care. The court was also “concern[ed]†with the
uncertainty surrounding the landlord’s willingness to allow Derek to remain
awaiting further payment and with his transportation for Regina. The matter was continued to the following
day.
In another last
minute information for the court, the Department reported receipt of a letter
from Totally Kids indicating Derek had procured a van that was inadequate for
Regina’s transportation. The transport
coordinator (Ana Castillejo, LVN II) said there were several problems and she
was “extremely concerned.†The van was “extremely
dirty inside and out,†was “full of dust†which was extremely bad for a patient
like Regina with a trach, there were many loose and dirty tools, clothes,
laundry, boxes and other items scattered, the doors were not functional and
handles were missing, and there was no car seat. Totally Kids would transport Regina in her wheelchair,
but Derek did not have the ability to transport the wheelchair and did not have
an appropriate car seat for Regina who cannot hold herself up. Castillejo believed the van was “very unsafe
and harmful to Regina’s health†and was not comfortable with Regina going home
in the van the following day. The air
conditioner did not appear to be working, but Regina needed air conditioning to
prevent heat-manifested seizures. The
Department was unable to recommend Regina’s placement in Derek’s custody.
Noting the
Department’s change of position, Derek’s counsel asked to set the matter for
contest, and the matter was continued to June 14. In a further last minute information for the
court, the Department reported Totally Kids’ unwillingness to release Regina to
Derek’s care because of the unsuitable van he had presented for this
purpose. In addition, he had failed to
make himself available for a family preservation services appointment on May 24
and did not want to reschedule or participate in services. Further, his new home was in Lancaster and he
did not have a backup caregiver there.
His backup in Los Angeles was not close enough to help in the event of
an emergency. He was dependent on the
income to be received for Regina’s care to pay his rent and other monthly
obligations. The Department again said
it could not recommend Regina’s return to Derek’s custody.
In August, the
Totally Kids social worker (Ellis) reported Derek’s new local backup caregiver
(Tracy P.) had not kept scheduled appointments for the necessary medical
training. Derek had met him at a
consignment store and asked him to help with Regina. He had also asked a family member of another
resident at Totally Kids to be his backup caregiver. The Department opined Derek did not understand
the seriousness of Regina’s medical care as demonstrated by the “randomâ€
selection of a local backup caregiver.
In addition, the Department’s investigator had learned M.W. was living
in Derek’s van. There were also concerns
about Derek’s care of Aaliyah who was “sometimes hungry.†The Department requested additional time to
investigate and could not recommend Regina’s return.
At the hearing on
August 23, M.W. said she was homeless, only saw Derek when she ran into him on
the street and could not remember the last time she had seen him. She denied living in his van and said she
lived in an alley. She said she did not
know how she knew about the day’s hearing, stating, “I don’t remember,
sweetheart. I’m being honest with
you. I smoke drugs, so I don’t remember,
you know.†Derek testified to his
knowledge of Regina’s care and visitation and said he lived down the street
from a pediatrician who would be Regina’s new doctor.
He said his house
had a ramp, Regina had her own room with a refrigerator, the home had air and
all medical equipment necessary would be delivered. He said he had proper transportation as
well. He said his refusal regarding
family preservation services was a misunderstanding and he would now accept
those services. The hearing was
continued to September.
In another last
minute information, the Department reported Tracy P., Derek’s backup caregiver
had not yet completed medical training.
The Department expressed concern about Tracy P. and wanted to complete a
background check on him. The Department
said Derek had shown poor judgment in attempting to transport Regina in an
unsuitable van, refusing family preservation services and depending on the
money he would receive for her care for his rent.
In September,
Melanie Ellis, the social worker at Totally Kids, said she had sent Derek a
letter at his Lancaster home address and it had been returned, but his landlord
confirmed he was there. Derek said he
had a friend living there to make the rent, but the friend would move out once
Regina was released to him. The social
worker reminded Derek his backup caregiver still needed to submit a background
check.
At the September 9
hearing, Derek testified that when he was told his backup caregiver in Los
Angeles was too far away, he asked Tracy P. who was one of the first people he
met in Lancaster. He met him through a
friend at a thrift store and Tracy would give him rides; he was not
“random.†He also testified about his
white van and said M.W. had never been inside the van, and he had never given
her a ride in it.
The Department
then called a witness (Gloria Apt) in court that day who had seen Derek and
M.W. in the van in the parking structure.
She testified she had been an attorney involved with the case for some
time and knew the parties. She could see
Derek driving the van with M.W. sitting in the passenger seat.
Ana Castillejo,
the transport coordinator with Totally Kids, testified regarding all of her
concerns with the white van, particularly the fact that Derek had believed he
could transport Regina in such a dusty, dirty and unsafe van after receiving
medical training on Regina’s care.
Although she did not see Regina on a daily basis but only when Regina
needed transport, she did not believe Derek was “stepping up,†citing as an
example an incident where Regina was drooling, and Castillejo had to show him
how to wipe Regina’s mouth because he was hesitating and would not care for
Regina in Castillejo’s presence.
Melanie Ellis
testified she had been working with Regina for two years. Derek had been visiting Regina once every two
weeks and would spend about 30 minutes with Regina. In the beginning, as reported, he had been
visiting more often. She testified Derek
did not assume Regina’s care when he visited.
She also said Live-Scan background documents submitted for Tracy P. were
not valid, and she had concerns about him.
When he arrived at Totally Kids, he did not know he was scheduled for
training and did not know Regina’s name.
She said Derek had finished his training, but it was suspended for a
time after he exchanged words with a nurse.
Regarding her comment in the reports that Derek was “active,†she was
not saying he was active in Regina’s care, but rather active with attending
visits, training appointments and family counseling meetings.
Derek said his
visits with Regina had only dropped off because he had moved and it had been
easier to visit when he lived in Los Angeles.
He said he had appropriate transportation. He acknowledged Apt’s testimony had been
accurate. He said, “Yeah, I forgot, I
dropped [M.W.] off down at the bottom, downhill,†and she was only in his van
for a minute or two.
The Department’s
and Regina’s counsel argued any order placing Regina in Derek’s care would be
harmful to her care, her well-being and her life. Regina’s counsel said that although Derek had
testified he understood what was required for her care, he had not demonstrated
that understanding based on his action.
Derek’s counsel said he had completed all court-ordered services and the
Department was trying to make him look bad.
The dependency
court stated, “I can’t see releasing [Regina] to [Derek] today. There’s just too much at risk here, and we
are way beyond the 18-month date.†In
fact, the court observed, it had been 24 months. Initially, the court had been “quite
impressed†with Derek, but “as circumstances have developed,†the court had
“concerns about [Derek’s] credibility.â€
“I don’t think he’s ready to assume the responsibility, and I do think
that Regina’s at risk to do so.â€
Accordingly, at the 18-month permanency review hearing (§ 366.22), the
court found continued jurisdiction was necessary as Derek had not demonstrated
the capacity and ability to complete the full objectives of the treatment plan
and provide for Regina’s safety and terminated
Derek appeals.
Derek says the dependency court’s
order finding him unable to assume Regina’s care is not supported by
substantial evidence. We disagree.
As the
interest in Regina was initially impressive, but when it came time to follow
through and demonstrate the understanding and ability to care for such a
medically fragile child, Derek failed to do so, especially as evidenced by the
van he believed he could use to transport Regina—even after completing training
(and acknowledging his own awareness of) her special needs. Compliance is not the sole concern when
considering a child’s return. (
689, 704.) Derek’s demonstration of only
limited awareness of Regina’s true need supported the dependency court’s
decision. Moreover, the court expressly
noted Derek’s lack of credibility in light of his misrepresentations and
conspicuous omissions to the court throughout the proceedings. “[T]he question whether to return a child to
parental custody is not governed solely by whether the parent has corrected the
problem that required court intervention; rather, the court must consider the
effect such return would have on the child.â€
(In re Joseph B. (1996) 42
Cal.App.4th 890, 901.) In light of the
risk to Regina as supported by this record, Derek has failed to demonstrate
prejudicial error. (Ibid.)
Derek also says services must have
been inadequate if Regina could not be returned to his care after he completed
them. Again, he misses the point. The problem is not with Derek’s training but
rather with his failure to appreciate the seriousness of Regina’s medical
needs, even after receiving such training.
The order is properly affirmed. (
at p. 901.)
DISPOSITION
The order challenged in Derek’s
appeal is affirmed. F.L.’s appeal is
dismissed as abandoned. (
pp. 843-846.)
WOODS,
J.
We concur:
PERLUSS,
P. J. JACKSON,
J.
name="_ftn1" title="">
[1] Appointed
counsel for another father (F.L., father of Shan. L., Sham. L., F.L. Jr., G.L.
and M.L.) filed an opening brief but “was unable to find any arguable issuesâ€
with respect to the dependency court’s orders.
Pursuant to In re Phoenix H. (2009)
47 Cal.4th 835, the brief set forth the applicable facts and law, and F.L. was
advised he could request permission to file his own brief, but he failed to do
so. Therefore, F.L.’s appeal is
dismissed as abandoned.
name="_ftn2" title="">[2] As
Derek B. appeals from the dependency court’s orders with respect to his
daughter Regina only, this factual and procedural summary focuses on
information relevant to Regina and Derek.
