Opinion
E034125.
10-10-2003
COLLEEN C., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Alvarenga and Drake and William E. Drake for Petitioner. No appearance for Respondent. Alan K. Marks, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Real Party in Interest.
Petitioner Colleen C. ("Mother") challenges an order of the superior court terminating reunification services and visitation, and setting a "selection and implementation" hearing pursuant to Welfare & Institutions Code, section 366.26. We find no error and deny the petition.
All subsequent statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS
The minors, two year old Kaylee H., and her brother, six year old Jacob H., were taken into protective custody by the Department of Childrens Services ("Department") on May 20, 2002. The children had been found by a sheriffs deputy wandering in the parking area of a motel. They were dirty, smelled bad, and inappropriately dressed. The door to Mothers motel room was locked and the curtain closed, so that she could not have been supervising the children.
Witnesses indicated that the children were often in the parking lot unsupervised, were commonly filthy, that Mother refused to bathe or feed them, and that she called Jacob "asshole" and "bastard" and Kaylee "little bitch." It was also reported that Mother threatened to shoot the children for being "bad," and that Jacob would often hide from her. On one occasion, Mother locked the children outside during a rainstorm. Jacob also had numerous unexcused school absences.
At the time the children were taken, drug paraphernalia was found in Mothers room. The room was also filled with moldy food, wet clothes, and trash, enough to fill six 22-gallon trash bags. Neighbors and relatives alike reported that they believed Mother was using methamphetamine; her former husband informed authorities that Mother had used the substance when they were together. Before the jurisdictional/dispositional hearing (§§ 355, 358), another witness also reported that while "strung out on drugs," Mother had stated that she planned to have Father killed for his Social Security money (presumably benefits which would go to the minors) and that she would then secretly kill the children so she could control the money. According to her former husband and other relatives, Mother had functioned capably as a parent for some time, but over the last few years she had received and lost a modest inheritance, lost her home, and become estranged from her family.
Not the father of the minors. This man, John C., and Mother had two older children, who were then living with John C. Some time after the pair separated, John C. had "picked up" these children from Mother when he learned that Mother was essentially homeless, and that the children were not in school and were playing in busy streets.
The minors were placed with their paternal grandparents and Mother was briefly incarcerated for child endangerment. By the time of the jurisdictional/dispositional hearing (§§355, 358), Mother had been released, but she did not appear and apparently had not made contact with the social worker or the Department. Reunification services were ordered at the hearing, which took place on Friday, June 21, 2002.
Father participated in services and visitation to some extent but did not complete his reunification plan. He has not challenged the order terminating services.
This order became largely moot, because Mother did not contact the social worker for almost a year, during which time her whereabouts were not known to the Department. Meanwhile, the minors were thriving in an environment which was not only physically and emotionally supportive, but also gave them the opportunity to become acquainted with numerous paternal relatives. Kaylee, however, had sleep disturbances and nightmares; she was also very "clingy" and required constant attention.
At the six-month hearing (§ 366.21, subd. (e)) in December 2002, services were ordered continued, but apparently only because Father at the time was making some progress in his reunification plan. Mother had not been located although an "absent parent" search had been initiated.
By the time the 12-month hearing approached (& sect; 366.21, subd. (f)) plans were being made for the minors to be adopted by a relative family. This hearing was originally scheduled for June 23, 2003. On June 10, Mother contacted the social worker and informed her that she was now "clean and sober" and wished to regain custody of the children. She admitted that she had been "strung out on drugs" for most of the previous year and that she had not visited the minors although she was fully aware of their placement and in fact lived only a few blocks away. Mother also expressed the belief that the minors had been removed from her custody solely because Jacob had not been going to school. Mother was willing to drug test, although the test could not be performed that day because she did not have identification, but she insisted that she did not need counseling or other treatment for a drug program.
The family "wishe[d] to remain anonymous" so the precise relationship is not clear.
At that time, Mother asked to visit the minors, but the social worker refused because Mother had not been drug tested. At the original hearing date of June 23, the social worker asked the court to suspend visitation, and the court did so. Subsequently, the court was provided with a report by a licensed clinical social worker in which the latter gave the opinion that it would be detrimental to the children to reintroduce Mother into their lives. It was the writers opinion that Mothers abusive conduct had placed the minors at risk of severe and long-term emotional harm, and that her reappearance at this time would tend to undo the good work provided by the caretakers and the minors extended family with respect to instilling a sense of safety and security.
At the hearing, most of the testimony tracked the information in the filed reports. Mother had entered a drug treatment program and had completed two or three negative drug tests. She testified that she had been clean and sober for 77 or 78 days and was halfway through a parenting class. Although she had not visited the minors during the year before June 10, she had attempted to deliver Easter gifts to them through a friend, but the caretaker grandmother apparently declined them.
What happened to the bags is not clear, as a hearsay objection was sustained to this line of questioning. It was not disputed that Mother did try to have them delivered.
The trial court terminated reunification services and also confirmed the termination of visitation, finding that it would be detrimental to the minors. This petition followed.
DISCUSSION
Mother makes several claims of error, which we discuss seriatim.
A.
Mother first contends that the trial court erred in refusing to extend an additional six months of reunification services, a refusal which was based on its finding that there was no substantial probability that the minors could be returned within that time period. (§ 361.5, subd. (3).) Mother argues that because she had begun work on her reunification plan by entering drug treatment and beginning a parenting program, the trial court should have extended services to the maximum permitted. We must uphold a factual finding of the dependency court if it is supported by substantial evidence. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024.)
Section 361.5, subdivisions (a) (1) and (2) provide a presumptive limit of six months of services for the parent of a child under three (such as Kaylee) and 12 months for an older child. Services may be extended up to 18 months, but only if the court finds that there is a substantial probability that the child or children will be returned to the parent within that period. (§ 361.5, subd. (a)(3).)
The 18-month limit in this case began on the date of the jurisdictional hearing, June 21, 2002. (§ 361.5, subd. (a)(3).) By the time of the 12-month hearing on July 30, 2003, less than five months remained. The court was entitled to weigh Mothers current activities against her previous inaction. (In re Brian R. (1991) 2 Cal.App.4th 904, 918.) Although, as the trial court noted, Mothers recent efforts were to be commended, she had not established that she could maintain a sober lifestyle; her history of drug use went back several years, and she had been a dysfunctional parent at least since the time when John C. felt compelled to take his children with him. Parenthetically, her remarks to the social worker concerning the reason the minors were taken obviously reflect that she had made no strides whatsoever with respect to understanding the minors emotional needs or the effect her conduct might have had on them. Nor did she have a suitable residence for the minors, and there was no evidence concerning any source of income or firm plans to establish a home.
Mother testified that she was living with a friend and that she was trying to "move . . . to get my own place;" she stated that her current residence was suitable for visits.
Furthermore, section 366.21, subdivision (g) (1) allows the court to find a "substantial probability" of return to the parents custody only if all of specified conditions are met, one of which is "the parent . . . has consistently and regularly contacted and visited with the child." It is undisputed that Mother walked away from the minors for over a year with neither visitation nor contact. Thus, a finding of "substantial probability" would have been legally improper. This leads to the final factor in support of the ruling which was actually made—that it would have been difficult for Mother to re-establish a relationship with the minors in the time remaining. Neither child inquired after her and both were reaping the benefits of a warm, supportive family setting. When asked to draw pictures of their "family," neither included Mother. The trial court was justified in entertaining grave doubt that the minors could have been returned to Mothers custody within the 18-month period without severe detriment.
We find no error in the termination of services.
Ironically, it seems probable that services would have been terminated at the six-month hearing as to both minors (see section 361.5, subdivision (a)(3), on terminating services after six months with respect to all members of a sibling group if any one of the siblings is under the age of three years) but for Fathers attempts at reunification at that time. By the 12-month hearing, when Mother appeared, Father had dropped out of the picture.
B.
Next, Mother attacks the finding that reasonable reunification services were offered. It is quite true that services should not, and may not, be terminated if the parent was not offered reasonable assistance in the first place. (§ 366.21, subd. (f); Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011.) However, we draw all reasonable inferences in favor of the trial courts finding that adequate services were offered. (In re Julie M. (1999) 69 Cal.App.4th 41, 46.)
The Department asserts that Mother waived any such argument because she did not object to the finding. She did argue that the denial of visitation was improper. We will deal with the argument on the merits.
Mothers challenge to the services rests solely on the social workers refusal to allow her to visit the minors when she resurfaced in June 2003. We find it obvious that any failing in this respect was de minimis in the context of this case. Having willfully ignored the minors and whatever reunification services the Department was prepared to provide for over a year, Mother cannot posit reversible error on a denial of access to the minors when she belatedly reappeared.
It does not appear that Mother intends to challenge the ruling of the trial court suspending visitation on June 23. See section C, infra.
Petitioners reliance upon In re Precious J. (1996) 42 Cal.App.4th 1463 (Precious J.) is inapposite, to say the least. In that case, termination of services was reversed because the Department had failed and refused to take the minor to visit her incarcerated mother. Mother claims that her "situation is nearly identical to that of the mother" in Precious J., although she concedes that she was not incarcerated. This difference, of course, is enormous. Insofar as her situation was analogous to that of the mother in Precious J. after she reappeared and was denied a visit, as we stated above, this was a trivial misstep by the Department (if a misstep it was).
C.
Finally, Mother objects to the order terminating visitation with the minors pending the "selection and implementation" hearing under section 366.26. She argues that because at that time, her only real hope of avoiding the termination of parental rights will depend on whether she has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(A)), it is essential that she be permitted to visit the minors in the interim.
This argument turns the statutory scheme on its head. The quoted statutory exception is designed to prevent "great[] harm" to a minor by the severing of a "substantial, positive emotional attachment." (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.) We recognize, of course, that the improper denial of visitation may well erode any meaningful parent-child relationship and create a spurious basis for terminating that relationship. (See In re Monica C. (1995) 31 Cal.App.4th 296, 307.) Here, however, if any positive emotional relationship still existed between Mother and the minors at the time of their detention (which seems doubtful), its terminal erosion was accomplished by Mothers subsequent disappearance. By the time the trial court suspended visitation, there was no relationship remaining, and substantial evidence certainly supports the implicit finding that it was not in the minors best interests to permit Mother to attempt to re-establish some sort of relationship at that time in an effort to derail their eventual adoption. (See In re Daniel C. H. (1990) 220 Cal.App.3d 814, 838-839.)
The petition for writ of mandate is denied.
We concur: Hollenhorst, J., Gaut, J.