In Re Ramone R.
Elvina R. appeals from an order summarily denying her modification petition under
We affirm the denial of the
BACKGROUND
Ramone was born in May 2002. On July 16, 2003, the San Francisco Department of Human Services (DHS) detained Ramone and placed him in emergency foster care after Elvina brought him to an emergency room with severe burns on his lower body. According to the detention report, Elvina claimed the burns occurred while Ramone was with his father‘s cousin, but this account was soon proven false. (Elvina could not identify the cousin‘s address, and said the cousin had taken Ramone for a visit with his father in jail, but there was no jail visitation at the time.) Ramone had first degree burns on his torso and right arm, and second and third degree burns on his feet, ankles, and genitals. The burns appeared to be a day or two old and were consistent with immersion in scalding water.
It was discovered that earlier in July, Elvina had taken Ramone to an emergency room in Los Angeles, where it was determined that he needed antibiotics. Elvina did not want him admitted, became belligerent with hospital staff, and fled the hospital with Ramone still attached to an intravenous tube. Ramone had been hospitalized the previous March for an abscess. Elvina had failed to take him for his follow-up appointment, or for his routine immunizations.
Elvina reported that she was unemployed and received only MediCal assistance, but that her sister and cousin were supporting her financially. A sister said she did not know how Elvina was supporting Ramone; she thought they were receiving welfare. Elvina had been removed from her parents’ care at the age of 14. She repeatedly left her placements and associated with drug dealers, becoming involved in assaultive robbery and, allegedly, prostitution. She was adjudicated a
The disposition report filed in September 2003 stated that Elvina was now claiming Ramone had been with her boyfriend when he was burned. She said the boyfriend, whom she refused to identify, had prepared a bath for Ramone when the child crawled into the tub by himself. However, the burn pattern was consistent with dunking, not crawling. Elvina said she would attend
Elvina failed to appear for one visit with Ramone, failed to confirm another which was then cancelled, and arrived late for two others. During the first visit, Ramone was hesitant and apprehensive with Elvina, who became “irate and confrontive” when she overheard the social worker talking about discharging Ramone into foster care. At the second visit, Ramone screamed when Elvina tried to restrain him on her lap, and she became visibly frustrated. Elvina left 40 minutes before the scheduled two hours were up. Ramone was discharged from the hospital on August 11, and was doing well in a medically fragile infant (MFI) foster home. He was on antibiotics, and his burn wounds required him to wear compression stockings 24 hours a day. The Department was planning to pursue placement with Shamika L., a paternal cousin.
An addendum report filed in October 2003 stated that Ramone screamed throughout the day and night, as if he were in pain. He had a hard time making eye contact with his caregiver. Shamika L. had been unable to handle him, and he was placed in another MFI home. Elvina had been arrested and jailed after pleading guilty to a charge of child endangerment under
In another addendum report filed in December 2003, DHS said it had decided to place Ramone with a maternal aunt, Eva R., “the only relative assessed without a criminal or child abuse history.” A gradual transition was contemplated. During the combined jurisdiction and disposition hearing in mid-December, Elvina filed a waiver of her right to reunification services. The court took jurisdiction over Ramone, continued his foster care placement, and scheduled a hearing under
DHS filed a
An addendum report filed in May 2004 stated that Eva R. had made one visit, come at the wrong time for another, and never returned since or communicated with the social worker. Nevertheless, DHS now recommended that the court find a probability of adoption, with a 180-day continuance to find an adoptive home. Ramone‘s arm had been examined and it was decided not to re-break and re-set it, though such a procedure might be necessary when he was 4 years old. DHS reported that he “continued to thrive” in the MFI home, but he also continued to exhibit all the symptoms noted in the previous report.
In June, DHS moved to “suspend” Elvina‘s visitation, though she had not seen Ramone since the previous August. Elvina had been released from jail on May 9, and a condition of her probation was that she have no contact with Ramone. The social worker, Karan Sjolin, reported that in addition to his head banging and violent tantrums, Ramone‘s emotional problems included playing with his feces.
The
At the beginning of the August 23 hearing, the commissioner summarily denied Elvina‘s modification petition, ruling she had failed to make a prima facie showing of changed circumstances that might justify finding reunification services would be in Ramone‘s best interest.
Two witnesses then testified, Karan Sjolin and Judy Pekarsky. Dr. Pekarsky was the clinical psychologist who supervised Ramone‘s therapist, a psychology intern who was a doctoral student. Dr. Pekarsky had never actually met Ramone or his foster mother. Her direct testimony consisted of an offer of proof read into the record by counsel for DHS. This testimony related that the foster mother reported prolonged tantrums and smearing of feces when Ramone was alone in his crib. Dr. Pekarsky observed: “Ramone‘s behavior problems indicate that the ordinary events of his daily life are experienced as difficult and highly distressing for him. The contributors to Ramone‘s difficulties are doubtless complex and still not entirely clear. His extremely traumatic experience surrounding the burn he received and the lengthy painful and frightening medical treatment for it have certainly been highly influential in creating Ramone‘s anxiety and wariness.”
Dr. Pekarsky noted that beginning in September, Ramone would have weekly individual visits with a psychologist, and sometime in the next two months a developmental neuropsychologist would begin an assessment to “clarify” his “constitutional developmental and cognitive capacities and vulnerabilities.” She added: “It is clear that at twenty-seven months Ramone has already experienced significant traumas and difficulties and is showing obvious behavioral problems and symptoms. At this point, the introduction of any new experience which is likely to be confusing or to provoke strong feelings such as visits with [Elvina] may be expected to increase Ramone‘s distress.”
On cross-examination, Dr. Pekarsky was asked whether it would be unlikely that an adoptive family would be found for Ramone. She replied: “I don‘t think it would be easy. I certainly have been involved in cases where it‘s happened and was a good thing for the child.”
Ms. Sjolin, the social worker, testified that since the plan to place Ramone with Eva R. had fallen through, DHS was exploring the possibility of placing him with Paula H., a paternal cousin. An assessment of Paula H. had not been completed, but she had indicated she was open to adoption “if the father was okay with it.” A background check had revealed an outstanding warrant for Paula H., but that had since been “cleared up.”
Sjolin said the foster mother reported Ramone continued to have tantrums, bang his head, and play with his feces during the night. He was “standoffish, not wanting to interact,” but was “getting better with that.” The foster mother was having trouble sleeping because of “the constant head banging” at night. Child care was being provided for Ramone to give the foster mother some respite. A communication evaluation had been done for Ramone a year earlier, concluding he had moderate to severe language delays. Speech
In closing arguments, counsel for Ramone conceded it would be difficult to place him, but noted Dr. Pekarsky‘s testimony that “she couldn‘t say it couldn‘t happen.” Counsel for the father argued it was premature to make a finding that adoption was probable, in view of Ramone‘s difficult behaviors and the fact that DHS had not provided a recent speech assessment or developmental evaluation. He asked the court to continue Ramone in his foster placement. Elvina‘s counsel contended there was no evidence to support a finding that adoption was probable, and asked the court to make a finding under
Counsel for DHS disputed the notion that a child with special needs like Ramone “has no probability of adoption.” She asked the court to grant DHS‘s request for 180 days to “finalize its assessment of the paternal cousin who previously had not been ruled out but whose assessment was stopped because of the bench warrant,” which now “seems [to have] been lifted.” Counsel noted it was “not . . . until today that we have heard that [the] maternal aunt, . . . Eva R., is again interested,” and the “maternal grandfather again today through mother‘s counsel is letting the Department know about possibly being interested again.”
The court ruled that Ramone‘s adoption was probable, though he would be difficult to place. It said his current problems did not preclude this finding, “because the very argument of some of those that were opposing this recommendation have put forth the names of individuals that are actually interested in adoption.” The court was unwilling to “prolong the matter by setting [it] over for a long-term placement.” The court agreed with Ms. Sjolin‘s assessment that changing placements would be harmful for Ramone: “If he‘s going to be going to a place we feel will be permanent, so be it. We will begin a transition period. We‘re not going to be bouncing him from place to place, that would be the worst thing that could happen to him.”
The court also granted DHS‘s visitation motion, finding it would be detrimental to Ramone to have visits with Elvina. Elvina offers no arguments on appeal against this ruling.
DISCUSSION
1. The Modification Petition
(1) We review the summary denial of Elvina‘s
Elvina‘s petition fell well short of establishing the kind of prima facie showing that might have merited a hearing. It was not verified, in violation of
Even taken at face value, those allegations would not amount to a prima facie case for providing reunification services. The fact that Elvina was out of jail was itself not necessarily in Ramone‘s best interest, given that she had been in jail for her role in his severe burn injuries. Her desire to provide Ramone with a stable home was irrelevant, absent any suggestion she was able to do so. Her insight into his personality was of questionable value, given her history with him and the fact that she had not seen him for a year. Her completion of anger management and parenting classes, which were conditions of her probation, were new circumstances but by themselves did not support a finding that Ramone‘s interests would be served by beginning reunification services at this late stage in the dependency proceedings. Similarly, Elvina‘s willingness to participate in services was not a compelling consideration at this point in the process.
(2) On the eve of a
2. The Section 366.26, Subdivision (b)(2) Order
(3)
In such a case, “the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. . . . At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) or (3) of subdivision (b). For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child‘s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” (
(4) It is noteworthy that only two of the three permanent placement options outlined in
DHS contends the
(5) Elvina contends the
(6) The exception to the usual rule of postdisposition appealability created by the Jacob S. court may have been a sensible one when it was announced. However, it no longer pertains after the Legislature amended
(7) Elvina correctly contends the court was required to find a probability of adoption by clear and convincing evidence.
(8) We review the court‘s decision for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318 [27 Cal.Rptr.2d 595, 867 P.2d 706]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [93 Cal.Rptr.2d 644]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶ 8:99.6, pp. 8-49, 50.) We must accord the trial court a high degree of deference. (Ibid.) (9) Here, however, there was simply no evidence suggesting Ramone would probably be adopted. DHS implicitly concedes the point by offering no argument to the contrary. Nothing in the reports submitted by DHS below or in the testimony of the witnesses at the
When it made its findings, the court referred to the arguments of counsel suggesting other family members were interested in taking Ramone. These arguments were not evidence, however, and even if credited they established no more than the kind of last-minute volunteerism that is not unusual at
Elvina argues the court should have invoked the exception to adoptability provided in
DISPOSITION
The order denying the
McGuiness, P.J., and Corrigan, J., concurred.