In Re Ronell A.
ALDRICH, J. —
INTRODUCTION
Father Ronald A. and mother Louise H. appeal from the juvenile court‘s rulings terminating their parental rights over minors Ronell A. and Cordero A. and ordering adoption as a permanent plan. Father contends the court erroneously (1) failed to appoint a guardian for him which guardian was necessary because of father‘s “chronic mental condition and emotional disability,” and (2) ordered the minors be adopted. In a separate appeal, mother contends the court (1) failed to rule that reasonable reunification services had been provided to her, and (2) improperly delegated to the department of children and family services (the department) discretion to determine whether visitation would occur. Because, appellants have demonstrated no reversible error, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
This family has a history of child abuse and endangerment and involvement with the department dating back to 1988. For reasons which will become clear below, father and mother see each other very infrequently. Mother and the three children, Lareal H. (who is not a child of Ronald A.), Ronell A. and Cordero A., had been living with the paternal grandparents.
With respect to the instant action, just three months after the court had terminated a previously ordered departmental supervision of the minors, the department again filed a petition. An amended version was entered on January 15, 1993, naming all three children.1 The petition was occasioned after Ronell, who was three years old at the time, was hospitalized suffering from third degree burns on 35 percent of his body, including his genitals, legs, feet and left hand. Ronell lost all of his skin on the affected areas and his physician gave him only a 50 percent chance of survival. Such injury was occasioned by mother who forced Ronell to take a bath in extremely hot water. Ronell‘s doctor also found facial burns and a cut upper lip which indicated Ronell “had purposely been held down in the hot bath water” anywhere from 30 seconds to 5 minutes depending on the water temperature. He explained, “the only way ... these severe burns could have been obtained were with ... somebody intentionally inflicting them on the child.” Ronell remained at the burn center for three months. Hours elapsed before anyone sought medical help. Ronell will continue to undergo skin grafts for his burns until his body finishes growing.
The petition further alleged such abuse endangered the physical safety of Ronell‘s siblings as there is a substantial risk that Lareal and Cordero would be abused as well. With respect to Cordero, the placement center to which he was sent after this incident “ha[d] seldom seen `such a traumatized child as young of age as he is‘” with the result he will need ongoing psychiatric care as soon as he is old enough to benefit by it. At the time, Cordero was one and one-half years old.
Mother was arraigned on January 15, 1993, and pleaded guilty to felony injury to a child in exchange for a sentence of six years in state prison. Mother has been incarcerated in state prison, since the inception of this case, where she remains. The minors were declared dependents of the court on February 2, 1993, and separately placed in foster care. On March 11, 1993, an amended petition was sustained as to
At the contested dispositional hearing, held on June 1, 1993, the court found by clear and convincing evidence a substantial danger existed to the physical health of Ronell and Cordero if they were returned to their parents’
Father
On April 14, 1993, the department filed a petition under
At the time the petition was filed, father was incarcerated. Earlier, father had run away from a residential drug treatment program, where he was sent as part of a court-ordered diversion plan after his arrest for possession of narcotics. This time, father has been housed at a rehabilitation center for mentally ill inmates. This center reported father “`can barely care for himself and cannot care for young children.‘” Father receives a disability payment which is sent to a payee who ensures father receives food, clothing and housing.
Before the April 26, 1993, adjudication hearing, the department‘s social worker recommended father be placed in a residential drug counseling program and ordered into an intensive parenting program. The department also recommended the court order a psychological evaluation for father to determine whether family reunification was even appropriate, as the department‘s workers had “serious concerns” that father would never be able to care for the minors. Father has never attended a parenting program in spite of court orders that he do so the previous two times the minors were made dependents of the court. Nevertheless, father had declared to the department social workers that he wanted to have his children with him and would like to visit his children while undergoing his drug treatment.
On May 6, 1993, the court sustained this petition as to the father pursuant to
Reunification Services
The court ordered father into parenting and drug counseling as well as a mental health program. As for mother, the department put together a plan under which mother was to attend parenting classes and a drug rehabilitation program.
Mother did not ask to see Ronell until September 9, 1993, nine months after her arraignment. The department arranged with his foster mother to take Ronell to Sybil Brand Institute. But, when mother learned that Ronell could not be brought into the attorney‘s room, she canceled the visit. Then, mother requested the department not contact her while in prison because she feared other inmates would identify her as a child abuser. By mother‘s six-month review she had been transferred to the Women‘s Facility at Chowchilla. The department learned mother could fulfill her reunification requirements at that prison.
In the period before father‘s six-month review, father received numerous referrals for intake at mental health centers, and admits to knowing about parenting programs. However, father never followed up on these referrals, and the department noted father “has the tendency to lose every referral given him.”
On January 24, 1994, the children‘s social worker requested the court grant the department an exception to the visitation requirements because mother “has specifically requested [the department] not contact her in prison as she fears being identified by the other inmates as a child abuser.” In February 1994, the department learned the trip from Los Angeles to Chowchilla is six hours’ driving time one way, and the wait at the prison to retrieve the inmates once the visitors had arrived was an additional one and one-half hours. Departmental reports from March and April 1994 indicate the boys’ foster mothers stated it would be a “great hardship” in both time and expense to travel the six hours one way and stay overnight to facilitate visits between the minors and their mother. The department cannot undertake to make the visits because the distance required an overnight stay which “is against departmental policy [against] any children[‘]s social worker to spend overnights with a dependent minor.”
On May 6, 1994, the six-month review hearing was held for both parents. The court found reasonable efforts to reunite the children with their father had been made but such reasonable efforts had not been made with respect to mother. Learning about the difficulty the department and foster parents had in taking the children to Chowchilla, the court authorized paternal grand-parents to take Lareal and Cordero for monthly overnight visits to the prison if they so desired, with the caveat that visits be ”with minors’ consent.” (Italics added.)
In the court-ordered progress report filed in advance of the 12-month review, the department indicated the boys were making good progress. Both Cordero‘s and Ronell‘s foster mothers indicated they wished to adopt the boys.
In July 1994, the department reported father called at the beginning of every month to arrange for a monthly bus pass but he “infrequently” used such passes to visit his children. The department then learned father had moved to San Diego in January 1994, where he did not follow up on referrals for mental health and parenting programs. Father indicated to the department that his family was pressuring him to obtain custody of the minors but that he is unable to care for them and he wants the foster mother to obtain legal guardianship as soon as possible. Father did participate in an updating of the case plan.
At the 12-month review for both parents, held on September 19, 1994, the court found reasonable efforts at reunification for mother and father had been made but that by a preponderance of the evidence it would be detrimental to return the minors to their parents and there exists no probability the minors would be returned to their parents within the next six months. The court ordered the department to provide permanent placement services pursuant to
By February 1995, father was back in prison.
In advance of the 18-month review, the department reported it was arranging a visitation schedule for the children and their mother as the
At the permanency planning hearing held on July 13, 1995, the court considered the entire file and heard testimony from the foster parents. The court also found it would be detrimental to return the children to the custody of their parents and ordered that parental rights be terminated, finding by clear and convincing evidence that the minors will be adopted. These appeals followed.
Additional facts will be discussed below.
CONTENTIONS
Mother contends reasonable reunification services were not provided to her and the court improperly delegated to the department the power to determine that visitation with Cordero was “deemed unreasonable.” Father contends the trial court erred by failing to appoint a guardian for him and by ordering adoption rather than legal guardianship as a permanent plan.
DISCUSSION
A. Mother.
1. Reasonable reunification services were provided for mother.
(1a) Mother contends the court erred in ruling at the
(2) In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all reasonable and legitimate inferences to uphold the judgment. (In re Misako R. (1991) 2 Cal. App.4th 538, 545 [3 Cal. Rptr.2d 217].) “If there is any substantial evidence to support the findings of a juvenile court,
(3) The adequacy of a reunification plan and of the department‘s efforts are judged according to the circumstances of each case. (In re Michael S. (1987) 188 Cal. App.3d 1448, 1454 [234 Cal. Rptr. 84].) With respect to the plan itself, “[e]ach reunification plan must be appropriate to the particular individual and based on the unique facts of that individual. [Citations.]” (In re Misako R., supra, 2 Cal. App.4th at p. 545.) “The effort must be made to provide suitable services, in spite of the difficulties of doing so or the prospects of success. [Citation.]” (In re Dino E. (1992) 6 Cal. App.4th 1768, 1777 [8 Cal. Rptr.2d 416].) “[T]he focus of reunification services is to remedy those problems which led to the removal of the children....” (In re Michael S., supra, at p. 1464.) “[T]he record should show that the [department] identified the problems leading to the loss of custody, offered services designed to remedy those problems, maintained reasonable contact with the [mother] during the course of the service plan, and made reasonable efforts to assist the [mother when] compliance proved difficult....” (In re Riva M. (1991) 235 Cal. App.3d 403, 414 [286 Cal. Rptr. 592], italics deleted.)
(1b) Viewing the evidence in a light most favorable to the respondent, we hold, under the circumstances of this case, the court did not abuse its discretion in concluding reasonable reunification services were provided to mother.
With respect to incarcerated parents,
Because the court did not make a finding of detriment to the minor under
Turning to the adequacy of the services, it was not feasible to arrange for telephone calls and letters between Cordero and his mother pursuant to
The department did organize a plan under which mother was to attend parenting classes and a drug rehabilitation program (
Mother appears most concerned about the department‘s efforts to facilitate visits between her and Cordero (
At the disposition hearing for mother, the court specifically ordered visitation while mother was incarcerated. Further, the record shows the department made efforts to arrange for visits but the practical realities prevented success. The long distance between Los Angeles and Chowchilla posed a tremendous obstacle to the foster parents and to the department which was itself prevented by departmental policy from escorting the children on overnight stays. Still, on May 6, 1994, the court found reasonable efforts had not been made regarding mother. As a solution, the court ordered
Failure to provide for visitation for an incarcerated parent has been found unreasonable where the prison was not excessively distant and where the inmate was allowed weekend visits in a visiting room and occasional two-day family visits in a facility resembling an apartment. (In re Monica C. (1995) 31 Cal. App.4th 296, 307 [36 Cal. Rptr.2d 910].) Also visitation plans were held unreasonable for an incarcerated parent where the prison was 40 miles from the where minor lived and the mother had substantially complied with the service plan. (In re Brittany S. (1993) 17 Cal. App.4th 1399, 1407 [22 Cal. Rptr.2d 50].) However, this case is entirely distinguishable from Monica C. and In re Brittany S. Not only is mother‘s prison a full day‘s drive distant, requiring an overnight hotel stay, insupportable expense to the foster parents and an additional one-and-one-half-hour wait for the prisoner to be brought into the visiting room, but mother canceled visits and otherwise failed to comply with the service plan.
Most important, this case is wholly distinguishable in one essential respect: unlike the two cases on which mother relies, here, mother is serving time exactly because of the abuse she committed on her own dependent child.
Equally important,
Notwithstanding the department‘s attempts, and her arguments on appeal to the contrary, in the two and one-half years between the filing of the petition and the termination of mother‘s parental rights, mother manifested little interest in maintaining contact with Cordero and failed to cooperate or avail herself of the services. In late 1993, the department arranged to take Cordero to visit his mother but noted ”Mother initially expressed no interest in seeing [the] minor. She then wanted to see [the] minor but decided against it upon learning [the department] could not bring him into the attorney‘s room for a visit.” (Italics added.) By July 1994, a year and a half after the petition was filed, mother had called the department only twice to ask ”briefly” about Cordero. (Italics added.) Moreover, mother‘s request the department not send anything to her because she did not want to be identified as a child abuser further belies her interest in pursuing reunification with Cordero. In short, mother simply showed little interest in following through with any visitation plan. “Reunification services are voluntary ... and an unwilling or indifferent parent cannot be forced to comply with them. [Citations.]” (In re Mario C. (1990) 226 Cal. App.3d 599, 604 [276 Cal. Rptr. 548]; In re Michael S., supra, 188 Cal. App.3d 1448, 1463.)6
In any event, even if the court erred in ruling the reunification services were reasonable, which is not our holding, we conclude the error would not be prejudicial.
2. Delegation of authority.
(4) Mother contends as the determination whether there should be visitation and how much is exclusively a judicial one, the department‘s “determination that visitation [with mother] at Chowchilla was `deemed unreasonable’ was tantamount to an order denying mother visitation.” Mother essentially argues the court‘s order granting the department complete discretion to determine whether visitation should occur is invalid and effectively denied mother all visits. Not so.
In pursuit of this argument, mother relies principally on the April 27, 1994, departmental report which indicated Lareal‘s caretaker balked at taking Lareal to Chowchilla because it was too far. The department concluded “At this time visitation between mother and minor [Lareal] would be deemed unreasonable....” Mother argues the court‘s ruling it was reasonable not to have offered services to mother because of mother‘s incarceration was based on the above report and that such report must also relate to Cordero. Because this appeal does not in any way concern Lareal, we fail to see the relevance of this statement to the reunification services provided to mother for Cordero. Moreover, it is irrelevant that the department reached such a conclusion. Only nine days after this report was filed, the court stated reunification services had not been provided mother and issued specific orders that Cordero be allowed overnight visits to Chowchilla. It is manifest from the record in spite of the department‘s lackluster performance the court made orders concerning visitation with mother, initially at counsel‘s request and again in May 1994. There is no delegation of discretion to the department in this case.
B. Father.
1. The court did not commit reversible error in failing to appoint a guardian for father.
(5) Father first contends the court had a sua sponte duty to inquire into whether a guardian should be appointed for father given his mental incapacity pursuant to
In In re R.S. (1985) 167 Cal. App.3d 946 [213 Cal. Rptr. 690], the court set forth a standard for determining when a guardian should be appointed in these circumstances. There, the mother contended the trial court erred in failing to appoint a guardian ad litem for her and that her counsel was ineffective for having omitted to request an examination of her competency. (Id. at pp. 978-979.) The reviewing court rejected these contentions, stating, “Notwithstanding [the mother‘s] documented mild mental retardation and her dependent personality disorder, the record here establishes that [the mother] did understand the nature of the proceedings against her and was able to meaningfully participate in those proceedings and to cooperate with her trial counsel in representing her interest. [¶] We therefore conclude that neither the trial court nor [the mother‘s] trial counsel ignored evidence that [the mother‘s] abilities were so limited that she was effectively rendered incompetent to understand the nature of the proceedings or to assist her counsel in representing her interest so as to require appointment of a guardian ad litem.” (Id. at pp. 979-980; cf. In re Christina B. (1993) 19 Cal. App.4th 1441, 1450 [23 Cal. Rptr.2d 918];
Here, it is clear father understood the nature of the proceedings against him, was able to participate meaningfully in such proceedings and cooperate with his counsel in representing his interests. (In re R.S., supra, 167 Cal. App.3d at pp. 979-980.) Not only has father had some high school education but the court had appointed counsel for father from the time of the original detention and throughout the entirety of these proceedings, and father cooperated with his attorney. Father even participated in updating the case plan.
Nor was the court unaware of father‘s condition. There was repeated testimony and reference in the file of father‘s “chronic mental illness and substance abuse.” The court also appointed guardians ad litem for the minors. In spite of all these indications, it is clear the reason the court did not act on its own initiative to appoint a guardian for father was it did not consider father incompetent. At the
Father points to the court‘s acceptance of his waiver of appearance at the
2. No abuse of discretion in ordering termination of parental rights.
(6) Father next contends the trial court should have ordered guardianships for the children in lieu of adoption as the permanent plan. Father argues an overriding preference for the preservation of the family must prevail in this case.
“At the selection and implementation hearing held pursuant to
The record here shows by clear and convincing evidence Ronell and Cordero were adoptable. Both foster mothers expressed the desire to adopt
More important, none of the circumstances enumerated in the statute exist that would justify a disposition other than adoption.
Father claims what is in the best interests of the child “is... relative.” Not so.
In this case, reunification services were terminated and father does not challenge the determination to terminate such services. The overwhelming and clear evidence shows father will never be able to provide these children with permanency and stability. In the end, “... there must be a limitation on the length of time a child has to wait for a parent to become adequate” to the task of parenting. (In re Marilyn H., supra, 5 Cal.4th at p. 308.)
Finally, father argues “Due process places a limit on the state‘s ability to interfere with extant [family] relationships....” The contention is unavailing. Our Supreme Court has recently described the objective of the dependency scheme. In In re Marilyn H., supra, 5 Cal.4th at page 307, the court explained, “Although a parent‘s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.] The state‘s interest requires the court to concentrate its efforts, once reunification services have been terminated, on the child‘s placement and well-being, rather than on a parent‘s challenge to a custody order.”
DISPOSITION
The judgment is affirmed.
Klein, P.J., and Croskey, J., concurred.