In re G.P.
- Reporters:
- ,
- Before:
- Huffman
Andrea R. St. Julian, under appointment by the Court of Appeal for Defendant and Appellant Y.Z.
Valerie N. Lankford, under appointment by the Court of Appeal for Defendant and Appellant Jose P.
Tilisha Martin, under appointment by the Court of Appeal, for Minors.
Y.Z. (Mother) appeals a juvenile court order terminating her parental rights to her children, G.P. and A. P., and choosing adoption as the appropriate permanent plan under
Jose P., the presumed father of G.P. and A.P. (Father), joins Mother‘s arguments and maintains his due process rights were violated when the court terminated his parental rights without having made a detriment finding as to him.
We conclude the court‘s findings under
On September 26, 2011, the San Diego County Health and Human Services Agency (Agency) filed petitions on behalf of G.P. and A.P., ages five and two respectively. Filed under
In the September 26, 2011 detention report, social worker James Marcuzzo reported this was not G.P.‘s first dependency experience. He was taken into protective custody in May 2008 when his parents were arrested, both for possession of dangerous drugs and probation violations. Drugs and drug paraphernalia were found in the family home accessible to the child. Mother ultimately reunified with G.P. after successfully completing her case plan. However, Father remained in prison. Mother also had a prior dependency case with her oldest child, Angelica M., in 2002. The case began with family maintenance while Mother and Angelica lived in the KIVA2 substance abuse program.
According to Marcuzzo, on September 15, 2011, the Agency became concerned Mother may have been producing methamphetamine in her home. Chula Vista police investigated the home 11 times during the year, the majority of which were for suspected drug use on the premises. During an interview Mother claimed, however, the maternal grandmother and the children had made false allegations against her because of her history of drug use. She also disclosed she had video cameras set up outside her home because of her fear of retaliation, the result of prior involvement with criminal activity and the “Mexican Mafia.”
Marcuzzo reported when he interviewed Mother she presented as a person who was drug free. However, though she claimed she had not been using illegal substances, both Mother and her boyfriend tested positive for methamphetamine with drug levels consistent with chronic binge use. Mother then acknowledged she had been using drugs three times a week during the previous six months, generally just prior to the children returning home from school.
Marcuzzo reported he also interviewed G.P. on September 15 at the Palomar Elementary School. G.P. reported he lived with his mother, brother, and “[P]apa Mike.” He also reported “Grandpa Rick” visited regularly, but he did not like “Grandpa Rick” because he made him smoke a cigarette. G.P. described the cigarette as red and white and “as long as a pen.” The child also reported all the adults smoked “small cigarettes and the big cigarette” that was hard, yellow and purple, and made out of a bottle.
Mother appeared at the detention hearing held September 27, 2011, and filed parentage inquiry questionnaires for both G.P. and A.P. in which she identified Father as the boys’ father. The court did not follow the Agency‘s placement recommendation, but, instead, ordered the children detained at the Polinsky Children‘s Center or in an approved foster home.
In the October 19, 2011 jurisdiction and disposition report, social worker Loretta De Cunzo reported the Agency had placed G.P. and A.P. with their maternal aunt Natalie Z. and it appeared they were appropriately cared for. De Cunzo also reported Mother disclosed Father was incarcerated in a federal prison in Indiana until May 2019 on drug charges involving a Mexican drug cartel. However, De Cunzo was unable to verify Father‘s whereabouts through the federal and state prison locators.
De Cunzo had no doubt Mother loved her children yet her continued drug use placed G.P. and A.P. at serious risk of harm. Therefore, De Cunzo recommended the court continue the children in out-of-home care and order Mother to participate in reunification services. De Cunzo recommended Mother participate in a case plan comprised of general counseling, a psychological evaluation, parenting education, and substance abuse services, including an outpatient substance abuse program, attendance at a minimum of two 12-step meetings weekly, and on demand drug testing.
The court held the jurisdiction and disposition hearing on October 19, 2011, and found the petition allegations true and also found the Agency had made reasonable efforts
In the six-month status review report dated April 17, 2012, De Cunzo reported that Father‘s whereabouts remained unknown and G.P. and A.P.‘s placement with Natalie continued to be appropriate. In the meantime, Mother entered the South Bay Women‘s Recovery Center in October 2011 where she completed seven of 14 parenting classes and attended drug treatment three times weekly. However, during the reporting period Mother missed several treatments and failed to drug test four times. She did, however, drug test on April 9, 2012, with negative results.
On February 9, 2012, Mother completed a psychological evaluation with Christopher Carstens, Ph.D. Carstens diagnosed Mother as being amphetamine or amphetamine-like dependent as well as having parent-child relationship problems. Though Carstens acknowledged that people do sometimes recover completely from methamphetamine abuse, he expressed concern that, because of Mother‘s comments, she was not committed to long-term sobriety or long-term avoidance of people who lead her to substance abuse. Carstens opined that could change over the ensuing six months.
The court held the six-month review hearing on April 17, 2012, found Mother had made some progress with the provisions of her case plan, and ordered the Agency to provide her with six additional months of services. The court also continued the children‘s placement with Natalie.
According to De Cunzo, the Agency granted Mother short unsupervised visits in late August 2012. In earlier supervised visits, Mother was observed to be loving and affectionate towards G.P. and A.P. She provided snacks, gave both children individual attention, and took their lead in play activities. De Cunzo noted what while Mother had made a good start at addressing her drug use through treatment and negative testing, she had not yet demonstrated she had gained insight into the cause of her drug use. De Cunzo opined Mother needed to explore her triggers and red flags and develop a viable relapse prevention plan. Nevertheless, Mother reported if she could not reunify with G.P. and A.P., she wanted them placed with either of their maternal aunts, Natalie or Claudia E.
In the March 21, 2013 status review report, social worker Christina Morse stated the children‘s caregiver, Natalie, telephoned her to report Mother had been beaten up by her ex-boyfriend Michael E. Additionally, Natalie disclosed Michael had transported G.P. and A.P. to her home on January 1 in violation of the court‘s no contact order issued in September 2011. When contacted, Mother denied she had been involved in a domestic
On January 18, 2013, Morse met with Mother at her home. During the ensuing conversation Mother acknowledged Michael had contact with G.P. and A.P. during the Christmas holiday and disclosed that she and Michael had gotten married in April 2012 while he was still in prison. Mother agreed to have no further contact with Michael or any of his friends or acquaintances and to obtain a restraining order as soon as possible. She also agreed to participate in domestic violence treatment when referred and to submit to a drug test that day, but later claimed she could not test because she lost her identification.
On January 21, 2013, Mother informed Morse of a second domestic violence incident with Michael that occurred the day before. Mother reported Michael had held her in her home against her will and would not allow her to open the door when Chula Vista police arrived. Police eventually forced their way into the home and arrested Michael. According to Mother, the court issued her a temporary restraining order earlier that same day.
On February 25, 2013, Morse met with Mother to discuss her relationship with Michael. Mother claimed Michael sought help from his probation officer but received none. She also claimed Michael loved her, wanted to be with her and the children, and
In the April 4, 2013 addendum report, Morse reported Mother completed the South Bay Women‘s Recovery Center‘s drug program on November 2012, and although the center offered her recommended aftercare, she rejected the offer. Morse attempted to contact Mother to request she drug test but was unsuccessful. Additionally, after completing one domestic violence treatment group class, Mother failed to return to the program.
The court held the 18-month permanency review hearing on April 4, 2013, and found Mother had not made substantive progress with the provisions of her case plan. Thus, there was not a substantial probability G.P. and A.P. would be returned to Mother‘s physical custody within the subsequent six months because to do so would be detrimental to the children‘s physical and emotional well-being. The court found the Agency had offered or provided Mother reasonable services, terminated services, continued the children‘s placement with Natalie, and scheduled a selection and implementation hearing.
The court held a special hearing on April 25, 2013, appointed counsel to represent Father as he requested, and arranged for him to appear telephonically. The court found it was not required to make a detriment finding as to Father because Father had not requested custody of the children, and Father‘s counsel told the court that such a finding would not be appropriate. The court ordered Father have supervised visits with G.P. and A.P. in accordance with the rules and regulations of the facility in which he was incarcerated. The court also ordered telephonic visits with the children be supervised.
In the July 31, 2013
Yang reported G.P. and A.P. were typically ready and waiting to go to their visit and left their caregivers willingly. When they arrived at the visits, the children appeared happy to see their mother, smiled and yelled “Mommy.” At the first visit, Mother forgot
For the third visit, Mother brought pizza and juice. Throughout the visit, Mother followed each child‘s lead in play and both children were talkative. Yang opined G.P. and A.P. were comfortable in their mother‘s presence. At the end of the visit, the children kissed and hugged Mother goodbye, but neither displayed any emotional distress when they separated or during the ride back to the caregiver‘s home.
Yang concluded G.P. and A.P. were likely to be adopted if the court terminated parental rights. The children were specifically adoptable because their maternal aunt, Claudia, living in Nevada, was very interested in adopting them and had begun the process of obtaining an out-of-state contingent home study. If, for some reason, Claudia could not adopt G.P. and A.P., there were 19 approved San Diego County families interested in adopting the boys together.
Yang noted this was the second dependency G.P. and A.P. had been through because of the same protective issues, and the Agency remained concerned for the children‘s safety. While Mother did complete a drug treatment program, she could not identify any of the 12 steps of the recovery model, though she claimed she had worked on the first three steps. Therefore, Yang recommended the court identify adoption as the children‘s preferred permanent plan.
Yang concluded the benefits of adoption outweighed the benefits of maintaining the relationships G.P. and A.P. had with Mother. Adoption provided the children with safety and the stability of being a permanent part of a family. Therefore, Yang recommended the court terminate all parental rights and order adoption as the children‘s permanent plan.
In the July 31, 2013 addendum report, Yang reported that Father had requested his mother, Mrs. V., and sister, Mrs. C., be assessed for G.P. and A.P.‘s possible placement. After several unsuccessful attempts at contacting Mrs. V. and Mrs. C., a relative home assessment worker learned from Mrs. C. that she and Mrs. V. lived together and were unable to care for G.P. and A.P. Yang also reported Claudia continued to work with the State of Nevada to complete her home study for placement. Yang reported she asked the
In the August 29, 2013 addendum report, Yang reported her observations garnered from Mother‘s three visits with G.P. and A.P. over the previous 45 days. On the first visit, the children greeted Mother by asking if she had brought food. However, as was the case on several occasions in the past, Mother had not done so, claiming she had run out of time. When later in the visit Mother asked G.P. for a hug, he ignored her and continued to read a comic book. On the next visit, Mother was 20 minutes late, claiming she had to stop at the store to pick up food. However, on the last visit, Mother once again failed to provide snacks for the boys, prompting G.P. to ask Yang if she had a granola bar. G.P. later asked Mother to buy them a snack from the office vending machine. While Mother was gone, the boys spoke with their attorney‘s investigator and talked about the time they spent with Claudia and their cousins.
Yang reported Claudia had not completed Nevada‘s ICPC3 requirements to have G.P. and A.P. placed in her home. Additionally, Yang discussed permanent plan options with the children‘s caregiver, Natalie, who expressed interest only in assuming legal guardianship of the boys if Claudia could not adopt them.
On September 27, 2013, the Agency filed supplemental
According to the September 27, 2013 detention report, in June, Natalie reported she and her boyfriend Isaac were not interested in caring for G.P. and A.P. long term. At that time it was unclear if the ICPC for Claudia would be approved, and Natalie said she and Isaac would assume guardianship of the boys only if it was not. In late August, Yang informed Natalie the ICPC was not complete, but for Relative Home Assessment (RHA) to approve the boys’ placement with her, she and Isaac would have to find another residence. Yang explained RHA could not approve the placement because Natalie lived on the same property as Mother, who had a criminal and child protective services history. Additionally, the boys’ maternal grandmother, who also lived on the same property, refused to cooperate with the Agency and submit to live scan testing.
Yang reported during the first week in September 2013 Natalie informed her she and Isaac could no longer care for G.P. and A.P. Natalie explained Isaac had lost his job and they could not afford to move from the family property, which she partially owned and where she did not have to pay rent. However, Natalie expressed her willingness to work with the Agency to find G.P. and A.P. “the most permanent placement” available. On September 24, Natalie reported though she and Isaac wanted to continue to care for the children, Isaac was beginning to train for a new job in Texas the next day and the children had to be removed immediately. Natalie said once Isaac completed his 90-day probationary period, she would join him in Texas and within 30 days find a suitable residence for the family. She wanted G.P. and A.P. placed in foster care, but returned to
The court held the detention hearing on the
In the October 8, 2013 addendum report, Yang reported since August 29 she had observed four visits between the children and Mother. Visits were held weekly and after August 29 had been increased from one hour to two. Prior to two visits, G.P. said he no longer wanted to visit with Mother. A.P. expressed similar feelings before a visit in October. However, with minimal encouragement, the children agreed to attend visits. Yang explained that Mother brought snacks and toys to the visits. The children typically ate snacks while talking about their week. Once finished, G.P. usually ran to the monkey bars and played alone or with other children at the park. On the second visit, Mother asked G.P. to spend the last 10 minutes of the visit with her, but he refused, and on the third visit, A.P. wanted to be alone for the last 20 minutes of the visit.
Yang noted that while Mother had demonstrated some parenting skills during visits with G.P. and A.P., she had not been a parent to the children for the previous two years. Although G.P. and A.P. appeared to enjoy visits with Mother earlier in the dependency, Yang observed their feelings had begun to change. She opined the children
On October 8, 2013, the court held the combined jurisdiction and disposition hearings on the Agency‘s
According to her curriculum vitae, Yang held a bachelor‘s degree in both human development and psychology and a master‘s degree in social work. She became employed by the Agency as a protective services worker in October 2012 and since has completed the 131-hour Public Child Welfare Training Academy instructional program as well as 106 hours of Agency generated instruction, including but not limited to specialized training in such disciplines as permanent placement assessment, visitation for adoptions, guardianship training, and investigation.
Per her stipulated testimony, Yang was assigned this case on April 26, 2013. Once she was able to reach Mother and arrange visitation, Mother visited with G.P. and A.P. once weekly for one hour. She did not ask for additional visits until August 29 nor
Yang‘s stipulated testimony included that the boys were in a foster home with parents who had no criminal or child protective services history, had an approved adoptive home study, and wanted to adopt G.P. and A.P. However, they were not interested in guardianship. According to Yang, the foster parents were willing to facilitate ongoing contact between the boys and their biological relatives including Mother.
Yang also would have testified that on their first night in the foster home G.P. and A.P. asked to telephone Natalie but not Mother. She opined G.P. saw Mother more as a friendly visitor than as a parent. Though G.P. showed affection toward Mother at visits, he rarely initiated it and separated easily from her when visits ended. Though A.P. appeared closer to Mother than G.P., he too separated easily when visits were over.
Yang stated G.P. and A.P. would not have been greatly harmed if they could no longer have contact with Mother. In that regard, Yang opined the benefits of adoption outweighed those of maintaining the children‘s relationships with Mother. In reaching her opinion, Yang considered, among other things, the boys’ ages, the fact that this was their second trip though the dependency system, that Mother failed to reunify with another child, Mother‘s drug history, and her recent contact with her husband, Michael. Yang believed G.P. and A.P. deserved a permanent plan of adoption, not long-term foster care.
The court then proceeded to the selection and implementation hearing and received all evidence previously received for the purpose of the
After considering the evidence before it as well as oral argument from counsel, the juvenile court found G.P. and A.P. were both generally and specifically adoptable and that the children would be adopted if parental rights were terminated. The court further found the beneficial relationship exception to adoption found in
On November 14, 2013, Father and Mother filed notices of appeal.
DISCUSSION
I
SECTION 387
Mother and Father argue the court erred in making true findings on the Agency‘s
When the Agency seeks to change the placement of a dependent child from relative care to a more restrictive placement, such as foster care, it must file a supplemental petition under
Under
In determining whether the child‘s placement with a relative is appropriate,
“(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs.
“(2) The wishes of the parent, the relative, and child, if appropriate.
“(3) The provisions of Part 6 (commencing with
Section 7950 ) of Division 12 of the Family Code regarding relative placement.“(4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in
Section 16002 .“(5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect.
“(6) The nature and duration of the relationship between the child and the relative, and the relative‘s desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful.
“(7) The ability of the relative to do the following:
“(A) Provide a safe, secure, and stable environment for the child.
“(B) Exercise proper and effective care and control of the child.
“(C) Provide a home and the necessities of life for the child.
“(D) Protect the child from his or her parents.
“(E) Facilitate court-ordered reunification efforts with the parents.
“(F) Facilitate visitation with the child‘s other relatives.
“(G) Facilitate implementation of all elements of the case plan.
“(H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative.
“(8) The safety of the relative‘s home. For a relative to be considered appropriate to receive placement of a child under this section, the relative‘s home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309.”5
If the court finds the previous disposition is no longer effective or the placement with the relative is not appropriate, then, in a separate disposition phase, the court must determine whether removal of the child from his or her placement is required. (
We review a decision to remove a child from a relative caretaker under the substantial evidence test. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.) We evaluate the evidence in the light most favorable to the trial court‘s determinations, resolve all evidentiary conflicts in favor of the prevailing party, and indulge in all reasonable inferences to uphold the trial court‘s findings. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)
In its section 387 supplemental petition, the Agency alleged on or about September 23, 2013, the placement with the relatives was no longer appropriate in view of the criteria in section 361.3 in that the relative caregivers asked that the child be removed as they could no longer care for the child. The factual basis of the supplemental petition is that Natalie stated she could no longer care for G.P. and A.P.
We are satisfied that the juvenile court‘s findings of fact are supported by substantial evidence. Following the September 27, 2011 detention hearing, the Agency placed G.P. and A.P. with Natalie, who cared for the children along with her boyfriend, Isaac. However, in June 2013, Natalie told the Agency that she and Isaac were not interested in caring for the children long term. At that time, Natalie‘s sister, Claudia, residing in Nevada, had expressed interest in adopting the boys and had initiated the process of obtaining an out-of-state contingent home study. However, in late August, as the ICPC process continued, it became unclear if Nevada would approve Claudia‘s home study for placement because of the result of Claudia‘s live scan. Natalie then informed the Agency she and Isaac would assume guardianship of G.P. and Armando if Claudia could not be approved to adopt the boys.
At the beginning of September 2013, the Agency requested Natalie participate in TDM to discuss G.P. and A.P.‘s placement. Shortly thereafter, Natalie explained Isaac had lost his job and they had to remain on the family property, where they paid no rent.
Later in September, Isaac informed the Agency that he had received a job offer in Texas, was starting training there within the next few days, and there would be nobody to care for G.P. and A.P. while Natalie was at work. Isaac was explicit that the boys needed to be removed in the very near future.
The next day, Natalie spoke with Yang and told her that the Agency had to remove G.P. and A.P. by the next morning. She confirmed that there would be nobody at home to care for G.P. and A.P. while she was at work, and despite Yang‘s attempt to explore other options for childcare, Natalie insisted she had no viable alternative. She said she wanted the children placed in foster care, but once she and Isaac were settled in Texas in about four months, she wanted the boys returned. However, she also expressed her willingness to work with the Agency to find G.P. and A.P. “the most permanent placement” available.
Mother and Father argue the juvenile court did not consider Natalie‘s and Isaac‘s desire that G.P. and A.P. be placed with them once they got settled in Texas. This argument requires us to reweigh the evidence. We cannot do so. (See In re S.C., supra, 138 Cal.App.4th at p. 415.) Mother and Father‘s contention also ignores the ambiguity in the record regarding Natalie‘s and Isaac‘s desire to care for the boys on a long-term basis.
II
THE BENEFICIAL RELATIONSHIP EXCEPTION
The juvenile court may terminate parental rights if there is clear and convincing evidence of adoptability. (
“The parent must do more than demonstrate ‘frequent and loving contact [,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child‘s life.” (In re Derek W. (1999) 73 Cal.App.4th 823, 827 the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.’ ” (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
We review the juvenile court‘s ruling under the substantial evidence test. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, Mother argues her parental rights should not have been terminated given the beneficial nature of her ongoing relationship with G.P. and A.P. The Agency acknowledges that Mother had regular visitations with the boys. Nonetheless, the Agency asserts Mother did not establish that the boys would benefit from continuing their relationship with her. (See Autumn H., supra, 27 Cal.App.4th at pp. 575-577.) Examining the evidence in the light most favorable to the order, we agree with the Agency.
Yang, who observed Mother during her visits with G.P. and A.P., opined that Mother was more of a friendly visitor than a mother to the boys. In addition, Yang noted that although Mother did exhibit some parenting skills such as feeding the boys, taking them to the restroom, and playing with them, she had not been a parental figure in the boys’ lives in two years. Yang also reported that more recently G.P. indicated he no longer wanted to visit with Mother. A.P. expressed similar feelings as well. Further, when Mother asked G.P. to spend the last 10 minutes of a visit with her, he refused. During the last 20 minutes of two subsequent visits, A.P. acted in a similar manner and simply wanted to play by himself. On the way home from a visit in October 2013, A.P. told Yang that he did not want to be touched or talked to.
In addition, the record shows that Mother has struggled to overcome her drug addiction. Although she completed a drug treatment program, she rejected the program‘s recommendation that she participate in aftercare, and she proved incapable of identifying any of the 12 steps of recovery despite her claim that she worked though through the first three steps.