In Re Lynna B.
DEAL, J.*
Gloradon M. appeals from a judgment declaring her minor child, Lynna B., free from the custody and control of the natural parents under
On April 5, 1977, Donald and Rosemary H., respondents, on behalf of Lynna, a minor born on December 6, 1970, filed the petition to free Lynna. Respondents had been appointed as guardians of the person of the minor child on August 31, 1973, by the Superior Court for Mendocino County.
A closed hearing was held on June 24 and 30, 1977, and the court filed its memorandum of intended decision on July 1, 1977. No objections to the proposed findings of fact were filed, and on September 14, 1977, the court signed and filed its findings of fact and judgment freeing Lynna from the custody and cоntrol of her natural parents. Notice of entry of judgment was mailed to each of the natural parents on November 3, 1977. Gloradon‘s notice of appeal was timely filed on December 21, 1977. The default of Delbert C., the natural father, was taken, and he does not appeal.
Appellant assigns as error (1) the insufficiency of the evidenсe to support the judgment; (2) the failure of the court to consider less drastic alternatives; and (3) the admission into evidence of privileged and irrelevant information and records.
STATEMENT OF FACTS
Lynna and her twin sister, Dawn, were born prematurely on December 6, 1970; the birth certificates indicate that the father was unknown. At the time, Gloradon was living in Mendocino County with her mother and a brother. Lynna was born with a congenital heart defect, and Gloradon became overwhelmed by caring for this sick infant along with Dawn and an older child, Eric, born on December 7, 1968. After discussing her problems with Dr. Waring, Gloradon suggested a temporary placement of Lynna in another home. Dr. Waring contacted Jean Sullivan, a social worker with the Mendocino County Department of Social Services, Child Protective Services Division. Sullivan arranged for a voluntary placement оf Lynna with respondents, who “had a special talent with children who had physical disabilities.” Respondents had been licensed since 1964 as foster parents to have a maximum of six children; they have three children of their own, the youngest of whom is fifteen.
On May 26, 1971, Lynna was released from the hospital to the respondents. She was to remain with them until she had developed sufficient stamina to undergo corrective heart surgery and had recuperated. Gloradon visited Lynna on June 4, 1971, for the first time, for about an hour and a half. Mrs. H. kept a diary on each of her foster children and regularly logged the contacts by Gloradon, who was authorized by Jean Sullivan to visit Lynna once a week. In 1971, Gloradon further visited Lynna on June 11, June 26, July 9, July 16-19, August 13, September 24, October 12 and December 24. With the exception of the three days, all the visits were in the home of the respondents, who accommodated Gloradon‘s plans for visitation “day or night.” Jean
In 1972, Gloradon visited Lynna three times: May 31, August 5, and October 9; she called on March 20 and on November 24. On December 9, when Lynna was ready for surgery, Mrs. H. tried to reach Gloradon through her mother, who finally located Gloradon through the sheriff‘s office. Gloradon returned the call and, as agreed, she came to Mendocino County on January 12, 1973, to sign the necessary medical consents.
On January 25, 1973, Lynna‘s heart surgery was performed at Stanford Hospital. Gloradon chose not to be present, and Mrs. H. had a message left with her mother when the surgery had been successfully completed. Respondents stayed in Palo Alto for about two weeks to be near Lynna during this period. There was no contact by Gloradon until April 9, 1973, when she visited Lynna at respondents’ home. Gloradon telephoned on April 13, May 11, and on May 20 at which time Mrs. H. told her that Lynna was ready to go with her. Gloradon denies that she was told Lynna could go with her. Gloradon telephoned on July 18, and October 15; she visited on September 3 and on September 20, with friends, for about five minutes. On August 31, 1973, respondents were appointed guardians of the person of Lynna; they wanted the appointment because of their inability to reach Gloradon for medical consents when Lynna needed treatment. Gloradon gave her consent which was motivated, at least in part, by her fear that Lynna would be made a dependent ward of the Sonoma County Juvenile Court as Eric and Dawn had been in July 1973. Gloradon testified that she had had no legal advice and did not understand the import of the guardianship proceedings.
There is some conflict about the reasons for the 1973 dependency proceedings for Eric and Dawn. Tension among Gloradon‘s family members had mounted as a result of the terminal illness and funeral of a brother. Wanda, a sister, testified. She was “angry at” her mother, brothers and sisters for not providing proper care for the ill brother. Gloradon had left Eric and Dawn for a few days, and Wаnda called the
On November 23, 1973, the Sonoma County Juvenile Court placed Eric and Dawn with the respondents after the placement with the grandmother did not work out. Eric remained with respondents until June 20, 1975; Dawn remained with them until January 23, 1976. Lynna and Dawn fought with each other for about two months; therеafter the three children adjusted well with each other. Gloradon spent Christmas 1973 with the three children at respondents’ home.
During 1974, Gloradon visited the children 26 times which complied with the twice-a-month visitation schedule allowed by Sonoma County; she usually took them out of respondents’ home. Gloradon moved in with the parents of Jim M. around January 1974, and in February, she and Jim were married. Their first child, David, was born in October 1974. Gloradon and Jim took Eric, Dawn and Lynna for a two-week visit during Christmas 1974. Respondents were again considering the return of Lynna to her mother, but the bruises on Dawn after the children were returned from Christmas vacation changed their thinking. The physician who examined Dawn reported the abuse to the child protective services, and termination of dependency for Eric and Dawn was postponed.
From January 1, 1975, until June 20 when Eric was returned to his mother, there were five visits and four calls from Gloradon. After Eric left, Lynna refused to go out with her mother, apparently out of fear that she would not be returned to the respondents. Respondents sought professional counseling from several sources about Lynna‘s refusal to go with her mother and were advised by each not to force the child. From June 1975 until January 23, 1976, when Dawn was returned to her mother, Gloradon had nine visits out of the home with Dawn; she saw Lynna on each of these occasions.
In 1976, from January 23 when Dawn was returned until December 31, Gloradon telephoned Lynna five times and visited twice: On December 4
In 1977, Gloradon called on April 11, when she was served with “the papers.” She also testified that she had telephoned a number of times during the years, but that messages were taken by the mother of Mrs. H. and the calls weren‘t returned. Mrs. H. refuted this.
Respondents filed the petition to free Lynna because “they wanted what was best for Lynna” and were worried about the lack of stability in the arrangement. Their action was triggered by a conversation between Mrs. H. and Gloradon in December 1976 when Gloradon stated that “she had heard if she could find a couple that wanted to adopt Lynna she could sign papers and there wоuld be nothing I could do about it.... I might never see her again....” Gloradon testified that she was discussing the possibility of having her husband adopt all three children.
Respondents love Lynna and want to take care of her as their own. They would continue to allow her to visit with her mother and natural family. Gloradon testified that she had always wanted Lynna to be returned to her and that she had delayed at first because of her concern for Lynna‘s health and later because of her financial inability to retain counsel. Gloradon‘s sister, Wanda, testified that Gloradon had settled down and was a fine mother. Jim M. testified that he does not distinguish Eric and Dawn from his natural children, David and Jacob, and that he would feel comfortable with Lynna. He believes that Gloradon is capable of being a good mother to all five children. He has been employed since April 1977 and is grossing $711 per month. They receive AFDC benefits for Eric and Dawn of $56 a month. The Sonoma County probation officer reported that Jim and Gloradon have lived in a rented home since October 1975 and that the home is small, but adequate to accommodate another child.
(1) The judgment is based on
(2), (3)
(4a) Appellant asserts that there is not substantial evidence to support the findings of the trial court and the judgment must be reversed. We disagree.
Appellant‘s first assignment of error is that Lynna, at the time of trial, had not “been cared for in [a] foster [home] under the supervision of the juvenile court, the county welfare department or other public or private licensed child-placing agency for two or more consecutive years.” She contends that the order appointing respondents as guardians of the person of Lynna on August 31, 1973, terminated the foster placement and substituted probate court supеrvision for that of the juvenile court and the welfare department.
A petition under
(7a) Appellant has cited no cases, and we can find none, holding that appointment as guardian terminates the status of the petitioner as a foster parent. We have determined that guardianship does not changе the nonbiological relationship between foster parent and child any more than it would change the blood relationship between a relative and the child. (8) A foster parent has been defined as “one who, although not legally related to the child by direct parental blood ties, nor decreed a parent in formal adoption proceedings, assumes the role of parent.” (Katz, Legal Aspects of Foster Care (1971) 5 Family L.Q. 283, 285 (ABA Section of Family Law); cf. In re Antonio F. (1978) 78 Cal. App.3d 440, 453 [144 Cal. Rptr. 466], holding that placement of the children in the home of an aunt does not qualify as foster care under
(7c) We conclude that the trial court properly found that Lynna had been in foster care since May 26, 1971, and impliedly found that she had been supervised by a specified agency.
(4b) Appellant next argues that the evidence is insufficient to support the court‘s finding that placement of Lynna with her natural mother would be detrimental to the child.
Appellant seeks to annul Dr. Martin‘s testimony by pointing out that he had advanced similar considerations about Dawn on the final review of her deрendency proceedings. Dr. Martin indicated that he had not resisted Dawn‘s return as vigorously because “her attachments had been broken for a long period of time. She had suffered many untoward things
The report of the Mendocino County Probation Department recommended that the petition freeing Lynna be granted. Jean Sullivan, Dorothea Proctor, and each of the respondents testified about Lynna‘s relationship with the respondents, her adjustment in their home and her relationship with appellant.
The court had substantial evidence on which to base its findings that it wоuld be detrimental to Lynna to sever her relationship with respondents and to return her to appellant. (See In re Marcos S., supra, 73 Cal. App.3d at p. 782; In re D.L.C. (1976) 54 Cal. App.3d 840, 849 [126 Cal. Rptr. 863].)
Because the concepts and the evidence overlap, we will treat as one the compound third requirement in
In specifying certain attributes of the parent-child relatiоnship that the court must consider, the Legislature has indicated the seriousness of an irrevocable order depriving a parent of the custody and control of a child. (12) The onditions for a freeing order are more onerous than the one condition of “detriment to the child” required by
(13) The legislative intent is equally clear that “`The purpose of the statute is to protect children.... The interest sought to be protected is
(14) Appellant did not request special findings in the trial court. She now requests the reviewing court to segregate and classify the evidence on which the trial court made its findings in the statutory language on each of the four conditions. It is not our province to do so. We do not think that the Legislature intended a strict and rigid adherence to the formula set forth in
(11b) Ronald S. Nesset, deputy probation officer from Sonoma County, submitted a report on the mother‘s circumstances and concluded that he could “discern no relevant reason why [appellant] could not perform in an adequate parental role to young Lynna....” Elaine Jersild, a public health nurse for Sonoma County, submitted a letter on appellant‘s behalf. Both she and Audrey Gunther, a psychiatric social worker with the Sonoma County Mental Health Services, testified in favor of Lynna‘s return to appellant. They confirm that appellant has made commendable progress in overcoming earlier emotional inadequacies and that Gloradon and Jim are apparently providing a stable hоme for the other four children. Nesset, Jersild and Gunther did not personally interview Lynna or observe the interaction between appellant and Lynna.
(15) Appellant is now able to provide a “house” for Lynna, but it would be paradoxical to require the child‘s return for this reason in spite of the finding that it would be detrimental to her. In using the word “home,” the Legislature intended a broader meaning: A place where one lives with his or her family, a place where one feels secure with its familiar conditions, circumstances and associations. The record does not reflect that Lynna has been in appellant‘s present house; Dr. Martin‘s
Appellant visited Lynna regularly only during the period that Eric and Dawn were with respondents. For two and a half years prior to that period her contacts had been minimal, even during the time that Lynna underwent heart surgery. After Eric‘s return to appellant in June 1975, Lynna would not accompany her mother away from respondents’ residence. Appellant offered no evidence to show that she had made any efforts to overcome the child‘s reluctance or to gain the child‘s confidence. From January 1976 when Dawn was returned to appellant until the time of the hearing in July 1977, appellant had visited Lynna twice, both visits being in December 1976.
There is no evidence that appellant ever sent Lynna a letter or a postcard to assure her of appellant‘s affection and concern. Except for the presumption of gifts at the December 1976 birthday party and Christmas celebrations, the record is devoid of any mention of gifts from appellant to Lynna. Appellant did make one $25 payment through the district attorney‘s office in April 1975. Appellant protests that it would “have indicated a gross mismanagement of her limited resources, resulting in deprivation to the children residing with her” to have sent clothing and gifts to Lynna. From the child‘s point of view, appellant‘s failure to provide such contacts might very well be interpreted as a lack of concern.
(16) As stated in In re Norma M., supra, 77 Cal. App.3d 110, 116: “The statute requires a finding that the parents have failed and are likely to fail in the future to provide such a home and family relationship. Of course, no one can predict the future with absolute certainty. The trial judge is called upon, in these cases, to simply determine the likelihood of whether the parent will in the future make a marked change in his or her behavior pattern in relation to the child. Unquestionably the parents’ `track record’ prior to the hearing is the best indication of such a likelihood.” (Italics in original.) As reflected in the record below, appellant‘s inability to evoke in Lynna any of the “natural” child-to-mother responses is indicative of the flaw in their relationship. Although appellant is Lynna‘s biological mother, she is a stranger to Lynna. The trial court could properly conclude that there was little likelihood that the relationship would be reestablished.
(17) Although the standard of proof for the trial court is clear and convincing evidence, the appellate court need only determine whether there was substantial evidence to support the trial court‘s findings. (11d) In the case before us, there is substantial evidence to support the court‘s findings that appellant has failed and is likely to fail to provide a home for the minor, to provide care and control for the minor, to maintain an adequate parental relationship with the minor, and to maintain continuous contact with the minor.
USE OF CHILD PROTECTIVE SERVICES FOR REUNITING FAMILY
(18) This court has recently reiterated the principle advanced by appellant “that before state action may be undertaken to involuntarily terminate the natural relationship of parent and child, less drastic alternatives, such as provision for child protection services, must first be explored.” (See In re Heidi T. (1979) 87 Cal. App.3d 864, 874 [151 Cal. Rptr. 263].) The failure to consider or offer such services before instituting a section 232 proceeding, however, does not automatically deprive the court of jurisdiction to entertain or grant the petition. (See In re Susan M. (1975) 53 Cal. App.3d 300, 310-312 [125 Cal. Rptr. 707], in which the court fully explores the place of child protective services in
(19) Although appellant did not raise the issue in the court below, she urges on appeal that the trial court abused its discretion in failing to consider such services and that the efforts at reunification must be properly evaluated in the probation report prepared in accordance with
Appellant did not request a finding on the issue, and no finding was made. There is, however, substantial evidence to support the implied findings that services were considered and offered and that further efforts at reunification would be unproductive. Jean Sullivan, the social worker with the child protective services, tеstified that services were offered to appellant, but that she was unable or unwilling, or both, to utilize them. The dependency proceedings for Eric and Dawn were not terminated until January 23, 1976, which gives some indication that efforts at reunification of Lynna with appellant until that time would have been fruitless. After that date, appellant‘s contacts with Lynna were meager and sporadic. Appellant did seek counseling to aid in securing the return of Eric and Dawn to her custody and to help them readjust. The record reflects a passivity, if not disinterest, on her part toward working for Lynna‘s return. The services are voluntary (In re Jeannie Q. (1973) 32 Cal. App.3d 288, 298-300 [107 Cal. Rptr. 646]), and should not be forced on an unwilling or disinterested parent. The trial court did not abuse its discretion in failing to order such services and in failing to postpone the proceedings to explore the possibility of Lynna‘s return to appellant.
Although not contending that the probation report with its attachments was inadmissible, appellant argues that it was “inadequate” to support the court‘s judgment. Appellant‘s objection goes to the weight of the evidence which is in the province of the trial court. (In re Heidi T., supra, 87 Cal. App.3d at p. 875.) There was substantial evidence apart from the report to support the court‘s findings and implied finding on services.
(20) Appellant contends that the trial court committed reversible error in allowing Dorothea Proctor, a social services practitioner for the County of Sonoma, to testify. Mrs. Proctor was the caseworker for Eric and Dawn in the Sonoma County Juvenile Court dependency proceedings during the period that the children were placed with respondents. The court sustained appellant‘s objection to testimony concerning Eric and Dawn, on the grounds that information obtained by Mrs. Proctor in the course of her supervision was not relevant and was privileged. Mrs. Proctor was allowed to testify about her discussions with appellant concerning Lynna and about her observations of Lynna during her supervision of Eric and Dawn. She observed that Lynna stayed very close to Mrs. H. on a visit in August 1974, yet spent most of her time with Mrs. Proctor on a visit to appellant‘s home in January 1975 when Lynna was visiting her mother. She further testified that appellant had asked for Mrs. Proctor‘s removal as the caseworker and that appellant was “difficult to get hold of.”
Appellant claims that the evidence was not relevant and therefore inadmissible under
Mrs. Proctor, using her notes made at the time of the interviews, testified about the interpersonal relations between Lynna and her foster parents and betwеen Lynna and her natural mother‘s family. Her observations reveal the quality of those relations and assist the trier of fact in determining the issues raised under
(21a) Appellant cited no authority for her claim of privilege during the trial. On appeal, she relies on
At the time of the hearing, Eric and Dawn were receiving benefits under the aid to families with dependent children program (AFDC), which is partly funded by the federal government. (See
(22) Generally, the privilege for official information (“information acquired in confidence by a public employee in the course of his [or her] duty,”
(21b)
(23) The legislative purpose in providing for confidentiality of public social service records is to protect the right of privacy of the recipient of such benefits. (Cf.
The judgment freeing the minor child from the custody and control of her natural parents is affirmed.
Racanelli, P.J., and Newsom, J., concurred.
A petition for a rehearing was denied May 24, 1979, and appellant‘s petition for a hearing by the Supreme Court was denied July 19, 1979.