In Re Rico W.
GATES, J.
Sri D. appeals from the judgment declaring her four children, Rico, Ferna, Rebecca and Robin, free from her custody and control pursuant to
Viewed in the light most favorable to the judgment as required by the usual rule governing appellate review (In re Angelia P. (1981) 28 Cal.3d 908, 924 [171 Cal. Rptr. 637, 623 P.2d 198]), the evidence1 establishes that on August 14, 1979, Rico and Ferna were adjudged to be dependent children of the juvenile court. Just two weeks аfter the court terminated its jurisdiction on October 10, 1979, Rebecca was declared to be a dependent child as a result of her having been hospitalized from “malnourishment and/or failure to thrive.”
While that order was still in effect all four children were removed from appellant‘s home and placed in foster care in June 1981 and on March 16, 1982, were declared dependent children under
After the children were removed from their custody, appellant and Warren began attending counseling sessions, but the reports received by the department of public social services (DPSS) up to the time children‘s services worker Sherry Martin took over the case in November 1981 “were not favorable....” Since DPSS had previously determined that reunification would not be possible without therapy and parent effectiveness training, Martin made a number of additional referrals and worked with appellant and Warren in structuring the foster home visits. Among those with whom appellant consulted, commencing in July 1982, was clinical psychologist Richard Skultin. To the degree appellant made some improvement in her emotional stability as a result of hеr sessions with him, it was not the type of progress required for her to be able to protect the children. For example, appellant and Warren continued to engage in sexual activities in front of the children and showed a lack of understanding “as to what was appropriate as far as sexual activities in front of and with children.” In addition, appellаnt and Warren pitted the children against one another and denied love if the children did not do exactly as they wanted. They brought gifts for
In October 1982, the juvenile court informed appellant and Warren “they would have three more months in which to show that thеy could make progress in therapy. That at the end of that three-month period a decision would be made as to the referral to adoptions. [¶] The very next visit that they had with the minor, Rico, the father molested him in the foster home. The next visit they had with the minors, Rebecca and Robin, he molested Rebecca.”
The night Rebecca was molested, she “woke [her foster parents] up screaming” and said “she was afraid that Warren was going to get in her bed.” She told her foster mother she “always slept in [Warren‘s] bed” and added, “he would play with [her] pee pee in the dark.” Although there has been no suggestion that appellant was an active participant in these incidents, Rebecca said “her mother was watсhing and did nothing” when she had been molested at her parents’ home.3 Moreover, appellant was present when the children were molested in their foster homes.
Following allegations by both foster parents that Warren had molested the children during monitored parental visitations on October 22 and 29, 1982, DPSS concluded family reunification was not feasible and reсommended that all parental visitation cease and that the matter be referred to the department of adoptions. On November 5, 1982, the court issued its order terminating appellant and Warren‘s visitation rights and on February 4, 1983, referred the matter to the department of adoptions for “adoptive planning.”
On March 7, 1983, Warren was convicted of three сounts of lewd conduct with a child under 14 while occupying a special position of trust (
On September 22, 1983, the department of adoptions filed its petition seeking to have appellant‘s children declared free from the custody and
Additional evidence revealed that each of the children had progressed spiritually, socially and emotionally after their placement in foster homes, although the changes in Robin were less dramatiс than with the older ones. Rebecca became “more relaxed ... more expressive” and ceased having frequent nightmares. Ferna came “to see herself more as a person rather than an object....” Rico became more sure of himself and less fearful of things around him. His behavior problems diminished and his performance at school improved. A strong bond had developed between appellant‘s children and their foster parents and the children consistently expressed their desire not to return to appellant. Both foster families were desirous of adopting their respective foster children and their applications to that end had been approved in the event the сhildren were made available for adoption.
Martin reiterated her position, based upon her contacts with the children, appellant and Warren, and her conversations with the various therapists who had seen appellant and Warren, that therapy had not proven successful in altering appellant and Warren‘s behavior, that reunification could not succeed and that the children should be referred for adoption. Appellant‘s own therapist, Skultin, testified to the difficulty in evaluating “what was potentially possible in reuniting this family” because “there seemed to be a considerable, considerable need to protect the children from possible future abuse and molestation.” He also expressed the opinion that appellant had done great bodily harm to the children and that the possibility for such behavior still existed after her treatment. Although Skultin believed it was possible many of appellant‘s problems could be rectified with continued therapy, he indicated ”it would be a long road.” (Italics added.)
Appellant testified her parents had disciplined her in Indonesia by tying her to a treе and allowing her brothers to throw stones at her. She indicated that through parenting classes she had learned such methods of discipline are improper and acquired more appropriate parenting skills.
We know of no mandate from our highest court requiring an express finding that termination of parental rights is the least detrimental alternative for the welfare of the children. (5) On the contrаry, it is well-settled that in order to award custody of a child to a nonparent, without the consent of the parents, the juvenile court must “render a finding that an award to a parent would be `detrimental to the child’ and that such an award to a nonparent was `required to serve the best interests of the child.‘” (In re B.G. (1974) 11 Cal.3d 679, 695 [114 Cal. Rptr. 444, 523 P.2d 244]. See also In re Angelia P., supra, 28 Cal.3d at p. 925; In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 495-496 [146 Cal. Rptr. 623, 579 P.2d 514]; In re Richard E. (1978) 21 Cal.3d 349, 356-357 [146 Cal. Rptr. 604, 579 P.2d 495].) (1c) At most, it would appeаr the least detrimental alternative standard is but a “more precise formulation” of the best interest of the child standard. (In re Angelia P., supra, at p. 929 (conc. and dis. opn. of Bird, C.J. See also In re Angelia P., supra, at p. 917 (majority opn.); In re Carmaleta B., supra, at pp. 489, 495-496.)
The juvenile court here expressly found, in accordance with its duty, that “it would be detrimental to the minors to be returned to their parents; that it is in their best interest that the petition be granted; and that an award of custody to a non-parent is required to serve the best interests and welfare of the minors.” This decision clearly represents “the least detrimental alternative” for appellant‘s four children. (6) (See fn. 8.), (1d) At the time judgment was entered the children had been in foster homes in excess of
Insofar as appellant relies upon
(2b) We find no reasonable basis for appellant‘s claims that the trial court failed to distinguish between the individual acts and interests of appellant and Warren or that it erroneously believed if the petition were not granted, the childrеn would be returned to the parents.
Contrary to appellant‘s second contention, the testimony of her own therapist was itself sufficient to support findings that appellant had neglected or cruelly treated her children in the past and would continue to do so in the future. (In re Carmaleta B., supra, 21 Cal.3d at p. 493.)
In addition, of course, child abuse includes not only a parent‘s own physical abuse of his or her child, but also a failure to protect the child from harm caused by others. (In re Angelia P., supra, 28 Cal.3d at p. 924.) Notwithstanding the fact that appellant‘s three oldest children had reported to their foster parents and therapist that they had been sexually molested by Warren, that appellant herself had advised DPSS of Warren‘s misconduct and that Warren was ultimately convicted for engaging in such acts, appellant adamantly refused to deal with this issue during therapy and maintained at trial that Warren had never molested any of the children. Although appellant allegedly had been living apart from Warren since his conviction, when asked whether she planned to live with him again in the future, she responded, “I don‘t know.”
Appellant‘s attitude may well hаve convinced the court she did not appreciate the necessity of keeping the children apart from Warren and therefore could not be relied upon to live away from him if the children were returned
(3b) Appellant‘s third contention also fails.
(4b) In support of her final contention appellant cites four instances in which her counsel allegedly “failed to perform with reasonable competence.” (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal. Rptr. 855, 659 P.2d 1144].) If, in fact, the Fosselman standard is appropriately applied in evaluating the effectiveness of counsel in proceedings to terminate parental rights (In re R.S. (1985) 167 Cal. App.3d 946, 969 [213 Cal. Rptr. 690]; but see In re Michael S. (1981) 127 Cal. App.3d 348, 364 [179 Cal. Rptr. 546]), appellant mаy not succeed with her claim absent a showing that “it is reasonably probable a determination more favorable to [her] would have resulted in the absence of counsel‘s failings.” (People v. Fosselman, supra, 33 Cal.3d at p. 584.) This she has failed to do.
Appellant first charges her attorney failed to object to the appointment of a representative of the county counsel‘s office to represent the interests of her children. Given our conclusion that the children‘s interests were adequately represented, appellant‘s counsel cannot be deemed ineffective for this omission.
Appellant next asserts counsel should have requested the trial court to make findings of fact. Assuming such a failure does constitute an omission “significantly affecting [appellant‘s] rights” (In re David C. (1984) 152 Cal. App.3d 1189, 1206, including fn. 9 [200 Cal. Rptr. 115]), a proposition we consider debatable, it is not reasonably probable a result more favorable to appellant would have been arrived at had counsel insisted on such findings.
Appellant also argues counsel should have objected to and moved to strike evidence of Warren‘s criminal conviction. Apparently appellant‘s theory in this regard is founded upon the decision in In re Sonia G. (1984) 158 Cal. App.3d 18 [204 Cal. Rptr. 498], where the court held parental rights may not be terminated under
Finally appellant relies upon counsel‘s failure to object to the admission of hearsay regarding Mary K.‘s allegations that Warren molested the children during visitation. DPSS social worker Martin testified during cross-examination by appellant‘s counsel that she believed appellant “was a party to the setup that allowed the molestation to take place.” Martin relied heavily upon Mary K.‘s written account of appellant and Warren‘s visit with Rebecca and Robin on October 29, 1982, in forming this opinion. In an attempt to convince the trier of fact “[t]here was not one bit of evidence” to support Martin‘s position that appellаnt “was somehow instrumental in bringing about the molestation,” appellant‘s counsel asked Martin to read those portions of Mary K.‘s letter upon which she had relied. This reflected an informed tactical decision on counsel‘s part and not a lack of competence.
The judgment is affirmed.
Roth, P.J., and Beach, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied August 13, 1986.
Notes
[*] Reporter‘s Note: Opinion deleted on direction of Supreme Court by order dated June 25, 1986.