In re P.S.
Filed 7/6/12 In re P.S. CA6
NOT TO BE PUBLISHED IN OFFICIAL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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
In re P.S., et al., Persons Coming Under the
Juvenile Court Law.
H037768
(Santa Clara County
Super. Ct. Nos. JD-018467;
JD-018468)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND
CHILDREN'S SERVICES,
Plaintiff and Respondent,
v.
O.S.,
Defendant and Appellant.
Appellant O.S. is
the father of two daughters, P.S. and P.S.2, who have special needs because of
various disabilities. The juvenile court
found in essence that he was unable to care for them following their mother’s
abandonment of them, subsequent incarceration and entry into
FACTS AND PROCEDURAL BACKGROUND
The parents were
born in Sierra Leone and separately immigrated to the United States in 2002. They met in San Jose.
P.S. and P.S.2 are their twin daughters.
When they were born, the mother was living in New York and appellant in San Jose.
On September
11, 2007,
San Jose Police placed P.S. and P.S.2, who were then 18 months old, into
protective custody after placing the then 19-year-old mother in detention under
Welfare and Institutions Code section 5150.
The police could not locate appellant, the then 25-year-old father. The
mother tested positive for methamphetamine and marijuana. The
parents were not married to each other.
On September
13, 2007,
the Santa Clara County Department of
Family and Children’s Services (Department) filed petitions pursuant to
section 300, subdivision (b) (failure to protect) on behalf of P.S. and
P.S.2. The petitions alleged that the
mother had psychological and drug abuse problems and that appellant presented
domestic violence and alcohol abuse concerns.
The juvenile court detained the girls on September
13, 2007,
putting them in emergency foster care.
The mother
ascribed her problems to the difficulties involved in raising the girls by
herself. Appellant did not help her with
caregiving or financial support. She was
also depressed about the death, in 1999, of her mother. She believed her father’s sisters had
arranged her mother’s death by having a voodoo spell cast over her.
Appellant had a
record of alcohol-related arrests and allegations of petty crimes on public
transit. Initially he told the social
worker that he wanted to quit drinking, but later he denied having alcohol or
domestic violence problems.
The Department
recommended not placing the girls with appellant. It troubled the Department that he suspected
the mother’s drug use but did not intervene to protect the children. On the one hand he would state that the
mother was unfit to rear children, and on the other he would suggest that she
be allowed to take the girls to New York.
He acknowledged having virtually no idea how to rear children. He also acknowledged that he would not be
able to care for the children without significant help from the paternal
grandmother and an aunt. The
grandmother, however, had had her own child and some grandchildren removed from
her home by child welfare authorities
following allegations of physical abuse.
In addition, the mother stated that the grandmother had kicked her in
the stomach when she was five months pregnant and had tried to poison her.
The children were
placed in a foster home. P.S. had
faciocranial abnormalities that required evaluation. The parents were visiting the children with a
few exceptions.
After contested
2007, the juvenile court sustained the section 300 petitions after striking the
allegations describing appellant.
Appellant then
started participating in some case plan services, but not parenting classes,
for which he claimed to have insufficient time.
He visited the children successfully.
He drug tested, but only when he wished to. He claimed that he was attending some
Alcoholics Anonymous meetings and he had a mentoring sponsor; but the sponsor’s
account of their interactions was not entirely consistent with appellant’s.
The mother was
not engaged in services and had stopped visiting the children. Once she offered no reason, another time she
explained that she had been assaulted, and a third time she reported a
miscarriage.
The juvenile
court conducted a disposition hearing on January 14, 2008. It ruled that placing the girls in
appellant’s care would present a risk of harm.
It ordered reunification services for the parents.
After the
disposition hearing, appellant refused to engage in a case plan because he felt
that the girls’ situation was the mother’s fault. The mother’s whereabouts became unknown.
Appellant changed
his mind and announced his willingness to start his case plan after meeting
with a social worker on February 27, 2008.
A report for the six-month review hearing scheduled for May 6, 2008,
related that appellant had made some progress on his case plan. He was visiting the children regularly but
seemed baffled by the drug‑testing requirements even though he wished to
abide by them.
At the 12-month
review hearing, held on November 5, 2008,
the juvenile court adopted the Department’s recommendations to return the girls
to appellant with family maintenance services.
Appellant found it difficult to
cope with the time demands presented by the different service providers and
resulting appointments, but wanted the girls back with him. He planned to have his girlfriend care
for the children while he worked, and a paternal aunt who lived in the home
would help. The paternal grandmother
moved out of the home, which the Department was insisting on before it would
let the girls return to appellant.
The girls had
been diagnosed with developmental delays and were receiving public services
accordingly. P.S. was being assessed for
craniofacial surgery. The mother was
located; she was in the county jail.
The juvenile
court set an interim review hearing for November 19, 2008. A report for it related that the children had
been returned to appellant and a social worker visited him weekly. The social worker had requested that a public
agency provide round-trip transportation for the services the girls
needed. Even so, the children missed
many appointments because appellant was “too tired from work,†“overslept,†and
“could not dress the children on time,†and the “girlfriend was not willing to
help.â€
As of December
17, 2008, appellant’s girlfriend had moved out of the house and the paternal
aunt planned to do the same, leaving him without the support he had stated he
needed. Shortly after, appellant lost
both his job and his residence. A social
worker proposed a family shelter but appellant did not believe it would be good
for the girls. Instead, on January 1,
2009, he requested that the girls be taken into protective custody. A team decision meeting resulted in a plan
to place the children with the maternal grandparents in New York. Appellant planned to move to New York once
the children were placed there.
The Department
filed section 387 (i.e., supplemental) petitions on behalf of the children and
the juvenile court detained them on January 6, 2009. They were again placed in foster care.
On March 6, 2009,
the juvenile court set a section 366.26 hearing (i.e., a hearing to formulate a
permanent plan for the children).
The Department
prepared a report for the section 366.26 hearing, which was scheduled for June
22, 2009. The mother remained in
jail. The foster mother for the girls’
half-sibling, S.S., who was the third child of the mother in this case,
requested placement of the girls with her and was willing to become their legal
guardian. They had speech impairments
and cognitive difficulties but were making progress, and the Department opined
that adoption was a suitable outcome for them.
It tentatively recommended that adoption be the permanent plan and that
the section 366.26 hearing be continued to find an adoptive home.
In the face of
this, appellant filed a section 388 petition (i.e., a petition to modify a
prior juvenile court order) on July 1, 2009,
requesting that the girls be placed with him.
He stated that he had stable housing
with his sister, was working, was attending a drunk‑driving class, and
had almost completed an associate of arts degree.
The juvenile
court scheduled a hearing for July 30, 2009.
The Department filed opposition.
It reported that appellant still lived with his girlfriend and only
planned to move in with his sister. He
had obtained temporary employment at a department store, but if the job ended
it would be unlikely that he could pay the rent his sister would require. He had just started attending school and was
juggling classes, work, spending time with his other children, and visiting
P.S. and P.S.2. Appellant was looking
for someone to support him financially.
He had not been able to cope with the girls when they were returned to
him before and the Department opined that it was not in their best interest to
be placed with him.
On September 21,
2009, the Department placed the girls in the same concurrent home as their
half-sibling S.S.
The Department
wrote a report for the interim review hearing scheduled for October 15,
2009. Appellant had cancelled every
visit with the children for more than six weeks. He would cancel after the children had been
brought to the visit site, upsetting them.
The mother remained in jail.
Two months later,
in an addendum report written for a hearing scheduled for December 15, 2009,
the Department reported that appellant had visited the girls inconsistently,
for a total of 10 times in six months.
Initially this would cause the girls anxiety, but they adapted and came
to view appellant as someone who visited from time to time, not as a caregiver,
let alone their father. Appellant did
not understand the girls’ disabilities and resisted the idea of mental health
services for them. The Department
recommended that parental rights be terminated and that the girls continue with
the plan of adoption by their foster parents.
The sections
366.26, 387, and 388 proceedings were held concurrently on December 15, 2009. During them, the parties stipulated to
suspend the contested hearing and decided that appellant would submit on the
section 387 disposition to expand placement to foster care and withdraw his
section 388 petition requesting placement of the children, and the parties
would enter into a guardianship plan with the girls’ caretaker. The juvenile court ordered weekly
unsupervised visits for appellant.
According to a
status review report for a section 366.3 (children’s situation following a
permanent plan) hearing scheduled for June 9, 2010, on December 23, 2009, the
mother left jail and entered a residential substance abuse program—but not for
long, because she assaulted another individual and was jailed for violating
probation. She was again pregnant. She stated that she would visit appellant for
food and lodging and that he had suggested they become a couple again so the
girls could be returned to them.
Appellant stated that he did not know the mother’s precise circumstances
but would give her food when she visited.
The guardians
maintained their commitment to the children, who were “really happy†living
with them. The children continued to
receive public services to address their needs, including occurrences of
aggressive behavior.
A day before the
section 366.3 hearing scheduled for June 9, 2010, the Department submitted an
addendum report. When a social worker
called appellant’s cell phone number on June 1, 2010, the mother answered. She had been released from jail on
May 20, 2010. The social worker
could hear appellant in the background.
When the social worker asked him about this, he lied about it; also, he
suggested that the children might have lied about being alone with the mother
on one occasion. This bothered the social worker, who wrote that appellant “made
decisions to send [the] children with their mother unsupervised. It could have been a very dangerous
situation.†A social worker
watched appellant during a visit on June 7, 2010, and observed poor parenting
skills. He did not interact with the
girls, who watched television or spent time with extended family members in
another apartment. They threw food and
objects and appellant ended the visit early.
Shortly
afterward, appellant left California, and on August 18, 2010, the juvenile
court adopted a recommendation that as long as he was gone he could make
supervised phone calls to the extent that doing so was workable.
On December 30,
2010, the girls’ counsel filed a section 388 petition requesting that a new
section 366.26 hearing be set to terminate parental rights. Counsel alleged: “The children’s father . . . moved
to the East Coast in June of 2010. He
has not had an in‑person visit with the children since then and phone
contact has been sporadic and inconsistent.†The juvenile court scheduled
a hearing for February 16, 2011.
The Department
wrote a status review report for that hearing.
Appellant was now living in Maryland.
He would phone the girls; the report described his calling pattern as
“[i]nitially . . . not very consistent.â€
assessing the logistics of deporting the mother to Sierra Leone but had not
decided when to do so. She had given
birth to her fourth child, another half-brother to the girls. This child, J.S., was, as had been her three
other children, taken from her by the child welfare authorities, and the
Department eventually placed him with the guardians. The girls, as before, were “really happyâ€
living with the guardians.
When the social
worker spoke to the mother, the mother was upset that appellant had moved out
of state because before, when he was in California, he had let her see the
children when they had unsupervised visits with him. Appellant “wanted a relationship with her,â€
she stated. The Department recommended that a new
section 366.26 hearing be set.
The Department
submitted additional reports for the February 16, 2011, hearing addressing the
girls’ section 388 petitions and appellant’s circumstances. On or about July 2, 2010, appellant went to
Maryland to help an aunt, who, following in her husband’s footsteps, would
later be deported to Sierra Leone. He
was taking care of the aunt’s house and personal effects. He had hoped to return within a week. While on the east coast, appellant
encountered one Nichole J., whom he had known since 2007. They fell in love and agreed to marry, and
appellant moved into the home of Nichole J.’s mother.
Between July 2,
2010 and August 6, 2010, appellant’s phone number changed twice and sometimes
either appellant did not answer the phone or Nichole J. answered it.
The week that
appellant hoped would suffice to resolve his aunt’s logistical issues turned
into months and he remained in Maryland.
In February of 2011, appellant and Nichole J. came to California
and met with a social worker. He said he
was unemployed but would look for work.
He asserted that he and Nichole J. together could rear the girls.
Appellant and
Nichole J. visited with the girls on their fifth birthday,
February 8, 2011. This was
appellant’s first visit with them since June of 2010. He told them that he would have a party for
them at a family restaurant on February 11, 2011, with family members. The girls were brought to the restaurant that
day, but appellant was not there. A
social worker tried to call him, but his phone had been disconnected. He later e-mailed and called to say that he
had forgotten the time. The social
worker rearranged the party for February 15,
2011, and it occurred.
On March 29,
2011, appellant filed a section 388 petition requesting that the girls be
placed with him permanently or, failing that, temporarily along with
maintenance services. He stated that he
was living with Nichole J. and
her mother and was working.
The juvenile
court set May 9, 2011, for a hearing to consider the parties’ various
applications.
The Department
filed a response in opposition to appellant’s section 388 petition. It asserted in essence that appellant had the
same unrealistic plans now as he had in 2008, when he failed to fulfill his
obligations despite being given enormous logistical support from the
Department, resulting in little or no benefit to the girls. It did not appear that he had a plan for
dealing with the girls’ disabilities, nor that he was taking steps to avoid
relapsing into the abuse of alcohol or illegal drugs. Appellant’s
“life situation is almost identical to [what it was] . . . in late
2008,†the social worker summarized in the Department’s opposition
papers.
“Placing the children with the father is risking the stability
that they now experience,†she concluded.
On May 9, 2011,
the juvenile court denied appellant’s section 388 petition and scheduled a
section 366.26 hearing for August 31, 2011.
The Department
filed a report for the section 366.26 hearing in which it recommended
adoption. P.S. and P.S.2 had been in the
care of the guardians for almost two years, along with their two
half-siblings. They continued to have
developmental delays, qualifying them for social services. The
P.S.’s faciocranial problem was non–life-threatening but needed to be watched;
eventuality. The guardians continued to
pursue education and health services for the girls. The girls had a strong bond with their
guardians, loved them and were loved by them, and saw them as their primary
caregivers. The guardians also planned
to adopt the girls’ two half-siblings.
Appellant visited
the girls at the San Jose Children’s Discovery Museum on July 20, 2011. The visit was fraught with difficulties
caused by appellant: he could not pay
for everything and asked the social worker to subsidize him, and he initially
failed to feed the girls’ half-brother S.S. (the social worker ended up buying
lunch for S.S.) and another son who was the product of a different union. That son “asked the father for food and
[appellant] simply smiled.†Finally he
fed that son at his expense, but less generously than the girls despite the
son’s request to be treated equally, so the social worker asked everyone to
share. The mother could not go on this
trip. She was in federal prison awaiting
deportation proceedings.
Appellant asked
the social worker for an additional visit the next day, before his flight to
the east coast was scheduled to leave.
The social worker made arrangements and asked appellant not to tell the
girls about the impending visit so as not to disappoint them. He told them anyway and then failed to appear
for the visit.
The section 366.26 hearing produced the following testimony:
The main social
worker had been assigned to P.S. and P.S.2 since January 24, 2008. She had little criticism of appellant
personally but doubted he could be a parent to his daughters, as opposed to a
“friendly visitor.†P.S. and P.S.2 were
specifically and, she thought, generally adoptable despite their intellectual
deficits. The guardians occupied a
parental role. Adoption by the guardians
was in the girls’ best interests—it would provide permanency and
stability. If the relationship between
appellant and the girls were severed it would not be detrimental to them;
certainly they would not suffer great harm.
On appellant’s
behalf, other witnesses—appellant himself, two social workers, and
Nichole J.—testified either explicitly or in essence that appellant
occupied a parental role in relation to the girls. On
rebuttal, the main social worker testified, accurately as to quantity, that the
two other social workers had “observed the interaction with the father and
children only one time for one hour . . . . And I have been on this case from January of
’08.â€
The juvenile
court then announced its decision. It
found by clear and convincing evidence that the girls were specifically and
generally adoptable and were likely to be adopted. Regarding the statutory exception to the
termination of parental rights that is the subject of this appeal, it found
that appellant had not maintained regular visitation and contact with the
girls. Regarding appellant’s claim that
others created barriers to his visits (notably, of course, telephone
conversations that he perceived to be interrupted, prematurely ended, otherwise
improperly curtailed, or thwarted altogether by the girls’ maternal
guardian—see ante, page 8, fn. 4),
the court believed the Department’s version of events and found that his
telephone visits had not been interfered with.
The juvenile
court found the relationship between appellant and the girls to be positive but
fall short of a parent-child one and that the benefit of maintaining it was
less in the girls’ best interests than adoption would be. Under a preponderance of the evidence
standard, terminating appellant’s parental rights would not “greatly harm†the
girls. The court terminated appellant’s
parental rights and freed the girls for adoption. It is from the order implementing that
decision that O.S. appeals.
DISCUSSION
With regard to dispositions in juvenile dependency cases, the best
interest of the child controls. (
Cal.App.4th 529, 534.) Adoption is the
preferred alternative. (§ 366.26, subd.
(b), (b)(1), (b)(2), (b)(5).)
“ ‘The permanent plan preferred by the Legislature is
adoption. [Citation.]’ [Citation.]
‘ “The Legislature has decreed . . . that guardianship is
not in the best interests of children who cannot be returned to their
parents. These children can be afforded
the best possible opportunity to get on with the task of growing up by placing
them in the most permanent plan and secure alternative that can be afforded
them.†’ †(
Cal.App.4th 725, 732.)
As noted, appellant claims that the juvenile court erred by not finding
applicable the parent-child beneficial relationship exception to the adoption
preference set forth in subdivision (c)(1)(B)(i) of section 366.26. That provision permits a juvenile court to
choose an option other than adoption when the parent has “maintained regular
visitation and contact with the child and the child would benefit from continuing
the relationship.†(Ibid.)
We recently held that review of a court’s
determination of the applicability of the parental or sibling relationship
exceptions under section 366.26 is governed by a hybrid substantial
evidence/abuse of discretion standard. (In
re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) As we explained, “Since the proponent of the
exception bears the burden of producing evidence of the existence of a
beneficial parental or sibling relationship, which is a factual issue, the
substantial evidence standard of review is the appropriate one to apply to this
component of the juvenile court’s determination. Thus, . . . a challenge to a
juvenile court’s finding that there is no beneficial relationship amounts to a
contention that the ‘undisputed facts lead to only one conclusion.’ [Citation.]
Unless the undisputed facts established the existence of a beneficial
parental or sibling relationship, a substantial evidence challenge to this
component of the juvenile court’s determination cannot succeed. [¶]
The same is not true as to the other component of . . . both the
parental relationship exception and the sibling relationship exception[, which]
is the requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that
termination would be detrimental.’ (§
366.26, subd. (c)(1)(B), italics added.)
A juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not
primarily a factual issue. It is,
instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance of the relationship in terms
of the detrimental impact that its severance can be expected to have on the
child and to weigh that against the benefit to the child of adoption. [Citation.]
Because this component of the juvenile court’s decision is
discretionary, the abuse of discretion standard of review applies.†(Ibid.)
The juvenile
court correctly ruled that appellant does not qualify for this exception. Substantial evidence supports its findings
that he failed to visit the girls when present in California and failed to
maintain adequate telephone contact with them when on the east coast. Not every time, to be sure—he sometimes
visited and phoned them. But his record
of paying attention to them was, if marginally better than spotty, not what a
capable parent ordinarily would show.
In addition, other substantial evidence supports the
juvenile court’s decision that the beneficial relationship exception should not
be exercised in her case.
“If severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that the child would
be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.†(
Cal.App.4th 567, 575.) But to qualify
for that exception he had to do “more than demonstrate ‘frequent and loving
contact’ [citation], an emotional bond with the child, or that [he] and [his]
child find their visits pleasant. [Citation.]
Rather, [he] must show that [he] occup[ies] ‘a parental role’ in the
child's life.†(In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parent-child relationship must “promote[] the well-being of the child to such a
degree as to outweigh the well‑being the child would gain in a permanent
home with new, adoptive parents.†(
Appellant cannot meet this standard.
He does not come close to meeting it.
When he appeared interested at all in exercising the role of the girls’
father, he fell well short of providing the care they needed, even with a high
degree of logistical support from the Department’s staff and others. We have spent considerable time reviewing the
record, as no doubt the juvenile court also did. The record shows an individual with a variety
of interests that would attract his attention from time to time and then be
eclipsed by others. The girls were one
of those interests, but appellant’s wavering and inconsistent attention to them
was itself child-like at times and hazardous at others—risks evinced by
appellant’s desire to receive child-rearing help from the girls’ paternal
grandmother, who had a record of physical child abuse, and his making possible
visits by their mother, from whom the girls had been removed for good reason,
without supervision by Department staff.
As the juvenile court observed during a hearing on May 9, 2011,
appellant “makes promises that he can’t keep.
That hurts the children . . . . The thing that the children need the most in
their lives right now is stability, and the love and care. And the guardians are providing
. . . more than that.†It has
been said in the juvenile dependency context that “childhood is brief; it does
not wait while a parent rehabilitates himself or herself. The nurturing required must be given by
someone, at the time the child needs it, not when the parent is ready to give
it.†(In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) This is certainly true here: the girls need their parents’ full attention
and full awareness of their mental and physical challenges.
We do not doubt that appellant feels a tie to his children and loves
them. He desires to be around them in
the right circumstances. But that is not
enough. The girls are in the status they
are in—removed from their parents for good reason, placed with a welcoming and
caring foster family that wishes to adopt them, and found to be adoptable—because
of the mother’s and appellant’s numerous parental lapses, which required the
Department to rescue them more than once.
The conclusion stated in Debra M.
applies fully here: appellant “has shown
little evidence that [he] currently can provide anything for [the girls] except
many promises and occasional visits.
Expressions of love and concern do not equate to the day to day care and
devotion the average parent expends on behalf of children.†(In re
Debra M., supra, 189
Cal.App.3d at p. 1038.)
Turning to the other prong of the standard of review, the juvenile court
did not abuse its discretion (In re
Bailey J., supra, 189 Cal.App.4th at p. 1315) in
finding that appellant had not shown a “compelling reason†(§ 366.26,
subd. (c)(1)(B)) to qualify for the exception.
He did not demonstrate that the girls would be “greatly harmed†(
ending her parental rights, and the positive nature of some of their contacts
was insufficient by itself. (
generally and specifically adoptable and there is no dispute that their
guardians were prepared to adopt them.
They had reared them for an extended period already, and done so
satisfactorily.
Substantial evidence supports the juvenile court’s finding, in essence,
that the relationship did not “promote[]
the well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents.†(In re
Autumn H., supra, 27
Cal.App.4th at p. 575.)
CONCLUSION
The order is
affirmed.
______________________________________
Duffy,
J.
WE CONCUR:
______________________________________
Rushing,
P. J.
______________________________________
Premo,
J.
record of a related case, O.S. v.
Superior Court (H036903), an unsuccessful writ action brought by
appellant. We took judicial notice of
the record in that case on our own motion on December 27, 2011.
statutory references are to the Welfare and Institutions Code.
