Opinion
B169695.
11-20-2003
HARRY R., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Mauricio Fusco for Petitioner. No appearance for Respondent. Lloyd W. Pellman, County Counsel, and Kenneth E. Reynolds, Senior Deputy County Counsel, for Real Party in Interest.
Harry R., the father of A. G., challenges an order of the juvenile court terminating his reunification services and setting the underlying dependency proceeding for a hearing to determine a permanent plan for A. G. and terminate fathers parental rights. (Welf. & Inst. Code, §366.26.) Father contends there was insufficient evidence to support the juvenile courts finding at the 18-month hearing (§366.22, subdivision (f)) that there was a substantial risk of detriment to A. G. if she were returned to fathers care at that time. We hold substantial evidence supports the courts finding, and deny the petition.
FACTS AND PROCEDURAL HISTORY
At the time of her birth in November 2000, A. G. exhibited drug withdrawal symptoms. A. G.s mother, LaRay G., tested positive for cocaine and PCP. The Los Angeles County Department of Children and Family Services (DCFS) detained A. G. at the hospital on November 16, 2000, after she tested positive for cocaine. DCFS filed a section 300 petition on November 21, 2000 and a first amended petition on December 20, 2000.
Father and LaRay G. were not married. In December 2000, father signed a paternity waiver and the court declared him to be A. G.s presumed father.
Although father had an extensive criminal history and was a recovering drug addict, he had completed a drug rehabilitation program and he lived and worked in a drug rehabilitation center. At the disposition hearing on January 23, 2001, the court granted father unmonitored visits at A. G.s foster home and monitored visits outside the home. The court also ordered DCFS to provide father with reunification services, and ordered him to complete 10 random drug tests and a parenting class. The court further ordered that A. G. be moved from her foster placement in Orange County to Los Angeles County, which was closer to fathers home.
In a status report prepared for the six-month review hearing on July 23, 2001, DCFS reported that in April 2001, A. G. had been placed in the foster home of Mildred L. to facilitate fathers visits. Father was complying with the case plan and DCFS recommended that reunification services be continued for six more months to allow father to complete his counseling and begin his involvement with the South Central Regional Center, where A. G. was attending an Early Start program. However, because of A. G.s young age and fathers serious criminal history, DCFS concluded that a family maintenance program, which would involve placing A. G. in petitioners care, was not appropriate at that time. Instead, DCFS recommended as a safeguard a "gradual return, closely monitored through frequent and relaxed visitation for the next [six] months..."
In a review report prepared for the 12-month hearing (§366.21, subd. (f)), DCFS reported that father was complying with the case plan and DCFS had approved his having weekend overnight unmonitored visits. DCFS recommended that reunification services be extended for six more months. At the 12-month hearing on December 20, 2001, the court followed the recommendation.
In May 2002, DCFS recommended that A. G. be placed in fathers home under a home-of-parent order, with continued family reunification services. At the permanency planning hearing (§366.22) on May 22, 2002, the court followed the recommendation of DCFS that A. G. be placed in fathers home under the supervision of DCFS.
On September 18, 2002, DCFS filed a supplemental petition (§387) after father contacted DCFS and requested that A. G. be returned to the home of Mildred L., because he was not able to care for A. G. properly. Father had been taking A. G. to work with him because he went to work at 3:00 a.m. and there was no child care available at that time. He also lacked funds to pay $65.00 per week for child care to Mildred L. Father stated his job was at risk, and he had moved out of his apartment due to problems with the landlord concerning repairs. Father had moved back into Canon Human Services, the rehabilitation center where he worked, at the request of the Director, who felt it would ease fathers financial burdens, which included back child support and taxes. Canon was not an appropriate environment for A. G.. Father was trying to get Section 8 housing but requested that A. G. be returned to the care of Mildred L. until he "got himself together."
In an interim review report prepared in anticipation of the January 21, 2003, contested hearing on the section 387 petition, DCFS reported that A. G. continued to reside in the home of Mildred L. and was doing well. Father was still living at Canon and had not been able to save enough money to rent an apartment. He stated that his main goal was to purchase a car. DCFS also reported that although father had shown an interest in reunifying with A. G., he had of late withdrawn from contact with his daughter, visiting only three times between September 13, 2002 and December 25, 2002. Father conceded he was still not able to care for his daughter.
Following the hearing on January 21, 2003, the court terminated its home-of-parent order, ordered that A. G. be suitably placed, and ordered DCFS to provide family reunification services. The court also ordered father to obtain appropriate housing and child care, and allowed him to have monitored visitation somewhere other than his workplace. The court continued the matter to July 22, 2003, for a permanent plan hearing. (§§321, subd. (e), 322.)
In a report prepared for the July 22, 2003, hearing, DCFS reported that Mildred L. continued to "provide a wholesome and nurturing home environment" for A. G.. Fathers visitation had been infrequent. During the six-month period of additional reunification, father had informed DCFS he was considering the possibility of moving in with his estranged wife. However, he did not mention his wife by name, and did not bring her to the DCFS office for live-scan screening. Father also had failed to provide any information concerning his efforts to find an apartment and obtain child care. His visitation with A. G. had been sporadic. He continued to work at Canon as a cook. Father told DCFS he understood he had not followed all the court orders and felt that Mildred L. was better able to care for his daughter, but he wanted to maintain visits with A. G. if she were given to Ms L. DCFS recommended a permanent plan of adoption. Ms. L. stated she was willing to adopt A. G..
At the section 322 hearing on July 22, 2003, the court ordered DCFS to prepare an assessment of fathers home. On August 13, 2002, father came to the office of DCFS with his estranged wife, Karen S., so that Ms. S. could undergo a live-scan. Father and Karen S. had been living apart for some time, but had never divorced. They had three adult children who did not live at home and a 15-year-old son who resided in the home. Ms. S. stated she was willing to care for A. G. and was well aware of her medical, developmental and mental health needs. Ms. S. submitted an affidavit stating she and father had been married for 25 years, had recently gotten back together, and wanted to raise A. G. together. DCFS assessed Ms. Ss home and concluded it met the standards for relative or non-relative extended family home approval.
The contested section 366.22 hearing was held on August 25, 2003. Mildred L., (A. G.s caretaker), Joan Tracy Rollins, the supervising social worker on the case, and father all testified. At the conclusion of the hearing, the court terminated fathers reunification services and set the matter for a section 366.26 hearing. The court focused particularly on fathers sporadic visitation during the previous six months and the fact that A. G. had been in fathers home for only four months when he asked that she be returned to Mrs. L. because he could not properly care for her. The court expressed concern that Ms. S., who had not lived with father for at least three years, had come "out of the blue for a convenient address" and had never been a part of A. G.s life. The court was skeptical of fathers claim that he had been married to Ms. S. for 25 years and had recently reconciled; the couple could not produce a marriage certificate, and neither could say for sure how long they had been married. The court also noted that it had no evidence father was living, or would be living, with Ms. S., although father had testified he stayed with Ms S. on the weekends. It was evident to the court that father was working seven days a week, did not have time to care for A. G. himself, and would leave her care to Ms. S., "who would be an appropriate caretaker but thats not the issue." The court found there was a "substantial risk of detriment emotionally" if A. G. were removed from "the only guardian [she] has ever known for three years" and released to fathers care at that time. The court conceded father "does want the child," and if he "loves the child and wants the child and wants the best for this child, then this father will start seeing this child every single week and, if possible, every couple of days and do what [he] has to do for this child."
The court found by a preponderance of the evidence that return of A. G. to fathers care at that time would create a substantial risk of detriment to her emotional well-being. The court also found father had not complied with prior court orders because he had not secured proper living arrangements and had not had substantial visitation with A. G.. The court terminated family reunification services and referred the matter for a section 366.26 hearing on December 15, 2003.
DISCUSSION
At the hearing held pursuant to section 366.22, the court must order the child returned to parental custody unless it finds, by a preponderance of the evidence, that return of the child would create a substantial risk of detriment to the childs safety, protection, or physical or emotional well being. We review the juvenile courts decision under the substantial evidence standard of review. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Thus, if there is substantial evidence to support the trial courts decision, we must deny the petition.
Father contends there was insufficient evidence to support the courts finding after the section 366.22 hearing that there was a substantial risk of detriment to A. G.s emotional well being if she were returned to fathers care at that time. Petitioner contends the court "refused to believe any evidence that was presented," including evidence by DCFS that father had complied with the case plan. Father points particularly to the courts alleged refusal to "acknowledge that fathers wife even existed, even though DCFS confirmed that they had met with her, inspected her home and obtained a live scan for purposes of conducting a criminal background check."
Although the court was skeptical about the timing of the alleged reconciliation between father and Ms. S., the court did acknowledge that Ms. S. would be an appropriate caregiver based on the home study conducted by DCFS. However, that in itself was not a sufficient basis to return A. G. to fathers custody.
The following constitutes substantial evidence to support the courts finding that return of A. G. to fathers custody at that time would be detrimental to her emotional well-being: A. G. had been cared for by Mildred L. since she was four months old, virtually her entire life, and called Ms. L. "mommy;" she had lived with father for only a four-month period until father concluded he could not care for her properly and requested she be returned to Mildred L.s home; since that time, father had failed to secure appropriate housing, and lived in a room at the drug rehabilitation center where he worked, except on weekends; although father said he hoped to purchase a car so he could go to the home of Ms. S. each night, his financial circumstances had not allowed that during the nearly one year since he had requested A. G. be returned to Mildred L.s home; and father had instead relied on a bus pass provided by DCFS in order to visit A. G..
Further, there was evidence that the bond between father and A. G. was not sufficient to allow A. G. to be removed permanently from the home of her long-time caretaker, Mildred L. Because father had been able to visit A. G. only sporadically during the prior 11 months, she was not comfortable in his presence, and when he came to pick her up for visits, and she screamed and cried. The court acknowledged this when it told father that if he was serious about having A. G. returned to his care, he would have to visit her at least once per week.
At the section 366.22 hearing, the court may consider whether changing custody will be detrimental because severing a positive loving relationship with a foster family will cause a child serious, long-term emotional harm. (In re Jasmon O. (1994) 8 Cal.4th 398, 418-419.) At the time of the section 366.22 hearing, A. G. was 33 months old and had lived with Mildred L. for virtually all of that time. Ms. L. was familiar with A. G.s special needs and the developmental problems she faced due to her prenatal exposure to drugs. A. G. called Mildred L. "mommy" and Ms. L. was prepared to adopt her. Even under the best scenario proposed by father, he would most likely see A. G. only on weekends, while during the week she was cared for by Ms. S., a stranger.
Our conclusion that substantial evidence supports the courts ruling should in no way detract from fathers sincere and commendable desire to try to make a stable home for his daughter. If there is sufficient evidence supporting a trial courts decision that considers first and foremost the best interests of the child, not the parent, we may not disturb that determination.
DISPOSITION
The petition for extraordinary writ is denied. Pursuant to California Rules of Court, rule 24(b)(3), this opinion is made final forthwith as to this court.
I concur: GRIGNON, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Turner, P.J. — Concurring opinion
I agree with my colleagues except in one respect. The record is reviewed in a light most favorable to the respondent courts order. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) When the record is viewed in that light, I do not believe the father had a sincere and commendable desire to provide a home for the child. When the child was born, the father was unable to provide support for the youngster. The father did nothing to support the child between the infants birth in November 2000 and May 2002. On May 20, 2002, the father was granted custody of the child. But by September 18, 2002, not even four months later, the father relinquished custody of the child to the Department of Children and Family Services. Between September 18, 2002, and January 9, 2003, the father visited the child 3 times but missed 16 scheduled visits. Between January 10, 2003, and June 20, 2003, the father had visited the child 5 times but missed 19 scheduled visits. In my view, when the applicable standard of appellate review is conducted, there is nothing commendable about his type of societal misconduct—a fathers duty is to nourish and love a child—not occasionally show up for a visit. Missing 35 visits and only visiting a child 8 times in 9 months is inconsistent with a fathers legal and moral duty to a youngster.
I otherwise am in complete agreement with my colleagues well stated analysis.