In Re Cynthia C.
Pursuant to
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
Sharon C., the minor‘s paternal aunt and de facto parent, appeals from the juvenile court‘s order of December 13, 1996, denying her petition for modification under
We partially publish our opinion because we decide an issue of first impression — whether, when there has been no ordered placement with a specific caretaker,
I
This case comes before us via an extremely convoluted route, with alternating turns of elation and disappointment, joy and despair — a rocky road leading ultimately to a child‘s separation from the only adult caretakers she had known since birth. We recount the factual and procedural history at some length.
SSA filed a dependency petition on Cynthia‘s behalf on March 2, 1992, alleging the father‘s incarceration and both parents’ drug and alcohol abuse. At the detention hearing, SSA approved of the minor‘s placement with William and Sharon. In July, Cynthia was declared a dependent. SSA was vested with custody of the minor for suitable placement. The court ordered a reunification plan for the parents and granted William and Sharon de facto parent status.
Cynthia‘s mother and father failed to complete any aspect of their service plan. At the 12-month review hearing on July 13, 1993, the court terminated their reunification services and scheduled a permanency hearing under
Unfortunately, about the same time, disturbing information surfaced. There were child abuse registry reports (CAR‘s) alleging physical abuse of the couple‘s four minor sons, who shared the family residence.2 Additionally, William, unemployed and receiving disability income as a result of a back injury, was involved in protracted litigation which the social worker perceived as “undermin[ing] the stability of the family and lead[ing] to family tensions.”
Therefore, in November, SSA, expressing second thoughts, noted “family issues . . . preclude recommending [Cynthia‘s] adoption” by William and Sharon. But recognizing the “close bond” and the aunt and uncle‘s “unwavering” commitment to their niece, the agency again recommended long-term foster care, to provide the couple “sufficient time to satisfactorily resolve their interpersonal family problems.” William and Sharon had already begun counseling; they agreed with the plan, “participating willingly and without resistance,” hoping they would soon be reconsidered as adoptive parents. SSA believed there was an excellent prospect for that eventual outcome. At the November 10
By April 1994, things were going well with the aunt and uncle and SSA again recommended the couple be assessed as an adoptive home for Cynthia. But the rosy glow was short-lived. By June, William and Sharon had discontinued their counseling due to more problems, and their therapist opined she had “not seen [them] long enough in couples counseling to fully assess their ability to continue to provide the kind of stability required of prospective adoptive parents.” SSA recommended, and the parties stipulated to the court‘s finding, long-term foster care remained the proper plan.
November brought some improvement. William and Sharon had begun “consistent” participation in counseling to enhance their marital stability. There had been no “notable incidents of concern” within the family for some time, and “the problems that led to the original referral for counseling appear[ed] to have stabilized considerably.” The therapist now opined Cynthia would benefit greatly from the relatives’ adoption of her. SSA, giving William and Sharon credit for their continuing struggle to overcome the problems which had delayed the adoption process, once more recommended adoption as the permanent plan, including consideration of William and Sharon as potential adoptive parents. The court agreed and scheduled another hearing under
In April 1995, in a supplemental court report for the permanency hearing, SSA reported that a psychological evaluation for adoptive assessment purposes had not yet been completed, but anticipated the results would be positive. It stated, “There is no doubt that [William and Sharon] will raise this minor with a great deal of love and concern.” It found “no [apparent] reason why [the couple would] not receive an approved home study enabling the adoption of the minor.” Nonetheless, the agency expressed certain reservations, noting, “There has been a significant amount of difficulty in getting [William and Sharon] to complete the home study. There are still several documents outstanding and the home study has not yet been approved. [The couple] den[ies] any ambivalence about adopting, reporting instead that there have been many outside stresses in their family that have
Nonetheless, SSA recommended terminating Cynthia‘s parents’ rights, freeing the minor for adoption and referring her for adoptive placement. Accordingly, on April 5, 1995, the court made the requisite findings and entered orders terminating parental rights, selecting adoption as the minor‘s permanent plan, and approving SSA‘s continued discretion to place Cynthia with her relatives or “any other adult deemed appropriate.”
In September‘s periodic review, SSA reported William and Sharon were in the process of adopting the minor. On December 8, the couple petitioned for adoption.4
Once again, matters took a turn for the worse. In January 1996, Billy, Jr., reported to the police that his father had punched him in the face and held him down while his older brother, Nicholas, repeatedly hit him. SSA, substantiating the report, noted Cynthia witnessed the incident, which frightened her. Further investigation revealed Billy, Jr.‘s nonattendance at school due to a local gang‘s “contract” on him and one of his friends. In addition, William and Sharon reported their two younger sons were exhibiting “extremely oppositional” behavior. The social worker, believing the family‘s dysfunction was far more serious than previously known, opined it would not be in the minor‘s best interests to remain with her aunt and uncle.
Cynthia was removed from the residence on February 2, 1996. William and Sharon agreed with SSA‘s approval of placement with another aunt and uncle. But Cynthia‘s stay at that home was brief: The relatives did not comply with procedures to become licensed foster care providers.5 On February 18, the minor was placed in a foster home. William and Sharon were given eight hours unmonitored visitation weekly.
In March, Sharon submitted to the court an 18-page, handwritten letter, explaining the circumstances of the precipitating incident, describing the
William and Sharon did not file another petition for writ. Rather, on April 19, 1996, they petitioned the juvenile court under
The
After completing his evaluation, the psychologist commented on several areas of family dysfunction and recommended implementation of four programs, including family therapy sessions, to gain a better understanding of the chain of events leading to family disruption, and individual counseling for William, Sharon and Billy, Jr., to address issues specific to each one. He was concerned the aunt and uncle might not be able “to provide a setting in which a child would be protected from not only severe forms of discipline, but, also the emotional trauma which might occur in a home where such discipline or physical violence is observed.” On the other hand, he noted there could be serious psychological consequences if Cynthia were permanently removed. He did not want the minor returned to William and Sharon until some progress was made. He suggested gradually increased visitation privileges, with the caveat that if another incident occurred, the couple should not be considered as an adoptive placement.
The
Unfortunately, another bump in the road was encountered en route to the next hearing. At the end of September, William and Sharon separated, announcing their intention to dissolve the marriage. William moved out with one son (Michael); Nicholas, at age 18, apparently was on his own; and David and Billy, Jr., remained with Sharon, who was unemployed, receiving no financial support from William, and in the process of applying for public assistance. Due to a conflict in representation, the couple‘s attorney was relieved. At the court‘s suggestion, Sharon‘s new counsel withdrew the
The next untoward development is reflected in an SSA report for the November 5 hearing: Cynthia returned to her foster home from a visit with her aunt and cousins, holding her “private area” and complaining about pain in her side; she also had decreased appetite. Questioned by her foster mother, she said her “brother” David and a neighbor boy had “touched her privates.” In a subsequent interview with the social worker, the minor stated the boys forced her into David‘s bedroom, where they both touched her “privates” over her underwear and David showed her his “wiener.” She further reported Nicholas, left alone with her to babysit, touched her “privates” with his “wiener.” SSA recommended restricting visitation to one monitored hour per week and prohibiting David and Nicholas from any contact, noting, “[Sharon] failed to protect the minor in the past and is unwilling to believe the minor‘s statement.”
On December 3, Sharon filed a new
At the December 13 hearing, Sharon testified she wanted a service plan designed to help her get Cynthia back. She said she had been attending family counseling with William and three of the sons until the previous September 26, but had not engaged in the individual counseling required under Widerynski‘s recommendations because she was in the process of “moving to a different county.” She disagreed with Widerynski‘s opinion she suffered from depression and anxiety; nonetheless, she said she was willing to begin participating in the recommended counseling in the future if that was what she had to do to obtain the minor‘s return.
Sharon, David and Billy, Jr., were staying with Sharon‘s sister and brother-in-law and their five children. Sharon was not ready for Cynthia‘s return until she could “get into [her] own house,” which she expected to do “probably sometime in January.” The court observed “that creates a problem” because it was required to rule on the state of the evidence then before it. Upon renewed questioning, Sharon testified it would be possible for Cynthia to live with her right away in the sister‘s home, although she acknowledged her two sons already had to sleep in the living room.
Sharon had seen the minor 13 times over the previous 3-month period. When she picked up Cynthia or dropped her off, she was sometimes accompanied by David or Nicholas, but she never allowed either of the boys to be alone with the minor. She did not believe the child‘s molestation disclosure; she said Cynthia was in her care at the time of the alleged sexual abuse and had not been alone with the boys. She was not concerned about Cynthia being alone with her sister‘s sons, but agreed it might be a good idea not to leave her alone with David or Nicholas under the circumstances.
After considering Sharon‘s testimony and various SSA reports, the court determined a bonding study would not be helpful because “that‘s always been assumed since the child was removed from the home . . . the child . . . was very attached and probably remains attached to [William and Sharon].” In fact, the court observed, it was the obvious attachment which had prompted it to order the broad-scope psychological evaluation of William and Sharon and their sons.
The court then turned to “the real issue” of whether the child should be returned to Sharon that day and whether Sharon was entitled to “any sort of plan or reunification” to facilitate the return. It found the de facto parent had no such entitlement; further, it found Cynthia would suffer detriment if
II
Sharon contends SSA had to file a
First, the appeal is not untimely. In juvenile dependency cases, an appeal must be filed within 60 days of the challenged judgment or order. (
With regard to the waiver issue, we have rarely seen a record as convoluted and at times confusing as this. One thing is clear, however: From the moment Cynthia was removed, Sharon pleaded for relief. Inter alia, she delivered a poignant handwritten note to the court. She then filed a petition
III
We turn to the merits. Sharon argues SSA had to file a supplemental petition under
This interpretation is bolstered by rule 1430, which identifies different procedures for changing, modifying or setting aside orders made by the court, depending upon the particular circumstances.
SSA became aware of an incident of physical violence involving William and Billy, Jr. It learned Cynthia had witnessed the incident and was frightened. It further learned Billy, Jr., was not attending school because of a gang‘s threats, raising additional concerns about the safety of the home. Finally, William and Sharon themselves reported “extremely oppositional” behavior by their two younger sons. The social worker, finding far more serious family dysfunction than previously realized, decided the placement was unstable and potentially dangerous. SSA had no duty to file a
Moreover, Sharon‘s status as a de facto parent does not give her a right to the minor‘s continued placement with her.
Sharon protests she was uniquely related to Cynthia as a “psychological mother with whom the child had lived for five years.” For that reason, she claims, she “should have been entitled to reunification services.” We find no legal thread in the fabric of the argument. By definition, a de facto parent is “a nonparent who has undertaken the parental role on a day-to-day basis, `seeking to fulfill both the child‘s physical needs and his [or her] psychological need for affection and care‘. . . . [Citation.]” (In re Kieshia E., supra, 6 Cal.4th at p. 75, italics added.) Sharon cannot show she comes within some sort of special category entitling her to rights superior to those of all other de facto parents.
Sharon also asserts removal without notice and a hearing violated her statutory rights under
IV-VI*
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The orders are affirmed.
Sills, P.J., and Bedsworth, J., concurred.
A petition for a rehearing was denied November 17, 1997, and appellant‘s petition for review by the Supreme Court was denied February 3, 1998.