In re Juan H.
- Reporters:
- ,
- Before:
- Vartabedian, Ardaiz, Reid
VARTABEDIAN, J.
Josephine G. appeals from the order terminating her parental rights and ordering a permanent plаn of adoption for her son, Juan H.1 Josephine claims the evidence was insufficient to support a finding that Juan was likely to be adopted. Juan raises the same issue and additionally argues it would be detrimental to terminate his visitation with his mother, the court failed to consider his wishes regarding termination, and the juvenile court erred in not aрpointing counsel to represent him. The only issue we discuss in the published portion of our opinion is consideration of the child‘s wishes. We affirm.
Juan was born to Josephinе on December 8, 1987. In July of 1989, Juan was declared a dependent child of the court because Josephine had left him with an unwilling caretaker and had failed to prоvide him with food or clothing. (
Josephine partially complied with the service plan agreement and maintained visitation with Juan. The visits were appropriate, аnd Juan and Josephine had a strong bond. Because of Josephine‘s progress, Juan was returned to her custody in July of 1990. The court ordered family maintenance services be provided.
On September 11, 1990, Juan was detained after a supplemental petition was filed alleging that Josephine failed to protect Juan and failed to provide for his care and support. (
On January 3, 1991, the court ordered the Merced County Human Services Agency (the Agency) to initiate termination proceedings pursuant to
In May of 1991 the court found Josephine had a change of circumstances because of successful steps she had taken in her residential treatment program. (
Based on the six-month review report preparеd by the Agency on October 8, 1991, the court terminated reunification services at a hearing conducted on November 21, 1991. The court then proceeded to take evidence regarding termination of parental rights and adoptability of Juan at that same hearing. After hearing evidence and argument, the court terminated Josеphine‘s parental rights; it found Juan likely would be adopted.
I., II.*
.... .... .... .... .... .... .... .
III.
Consideration of Child‘s Wishes
The juvenile court “shall consider the wishes of the child” at termination proceedings. (
(1) Juan claims that, applied to all termination proceedings,
The permanency planning report did not contain a statement of Juan‘s wishes because he was too young to sufficiently understand the situation and provide a statement. At the time of the November 21, 1991, hearing, Juan was just shy of his fourth birthday.
In In re Jessie B. (1992) 8 Cal. App.4th 845 [10 Cal. Rptr.2d 516], this court rejected the mother‘s argument that
In In re Jennifer J. (1992) 8 Cal. App.4th 1080 [10 Cal. Rptr.2d 813], the appellate court held the juvenile court is not required to take in-court or in-chambers testimony from the child, even when the parents request that such testimony be taken.
“[T]he juvenile court judge in a proper сase may refuse to require the attendance and testimony of the child who is the subject of the litigation. This power derives, we believe, from a recognition of thе overriding objective of the dependency hearing — to preserve and promote the best interests
of the child. It would be a perversion of the procedure to impose upon it a requirement that the child‘s testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court. The refusal of the court to issue process requiring the attendance and testimony of the child should, assuredly, be a decision made only after a careful weighing of the interests involved.... `[F]undamental rights are implicated in dependency proceedings, and they cannot be abrogated with impunity.’ Where, however, the child‘s desires and wishes can be directly presented without live testimony, where the issues to be resolved would not be materially affected by the child‘s testimony, and where it is shown that the child would be psychologically damaged by being required to testify, we hold the juvenile court judge has the power tо exclude such testimony.” (In re Jennifer J., supra, 8 Cal. App.4th at p. 1089, fn. omitted.)
Jessie B. and Jennifer J. both recognize that a child may be too young or too frail to have the capacity to testify. By the same token, a child may be too young to understand, much less express, his or her wishes regarding the proceedings. Here, the permanency planning report indicated Juan was too young to understand or express his wishes.3 Josephine did not challenge this statement in the report. In the absence of an objection and/or evidence demonstrating otherwise, the triаl court properly relied upon the statement that Juan could not express his wishes. To the extent that the juvenile court could determine Juan‘s wishes from his behavior while in the presence of Josephine, this evidence was before the court and considered by it.
Obviously,
Although Juan was not represented by independent counsel, we fail to see how this could have affected the proper consideration of his wishes. If Juan was unable to effectively communicate his wishes to the social worker, he would also be unable to communicate with independent counsel. In such situations, the minor is protected by the mandate that the court act in the child‘s best interests. Error cannot be predicated on the juvenile court‘s failure to consider the express wishes of the child when the child is not cаpable of adequately expressing those wishes.
Appointment of Counsel*
.... .... .... .... .... .... .... .
DISPOSITION
The judgment is affirmed.
Ardaiz, Acting P.J., and Reid, J.,‡ concurred.