Opinion
D051172
1-2-2008
In re CALVIN P., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P. P., Defendant and Appellant.
NOT TO BE PUBLISHED
P. P. (Mother) appeals following the dispositional hearing in the dependency case of her children, Calvin P. and Kayla P. At the hearing, the court ordered the children placed with a relative; granted reunification services to the childrens presumed father, C. P.; and denied Mother reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(10)).
Mother filed a Sade C. brief asking this court to exercise its discretion to review the record for error (In re Sade C. (1996) 13 Cal.4th 952). The brief mentioned two Anders issues (Anders v. California (1967) 386 U.S. 738): whether the juvenile court abused its discretion by denying Mother reunification services (§ 361.5, subd. (b)(10)), and whether reunification services to her were in the childrens best interests (§ 361.5, subd. (c)). The San Diego County Health and Human Services Agency (the Agency) filed a letter brief requesting the appeal be dismissed. Counsel for Calvin and Kayla filed a letter brief opposing the request to dismiss, arguing the record contains evidence that services for Mother were in the childrens best interests and denying services to her would be detrimental to them. The childrens counsel suggested this court order the parties to brief the issue whether, considering the childrens best interests, the juvenile court erred by denying services to Mother. We requested Mother and the Agency to brief the issues whether the juvenile court erred by not finding reunification services to Mother were in the childrens best interests and by denying services to Mother (§ 361.5, subds. (b)(10), (c).).
BACKGROUND
Mother gave birth to K. P. in May 2005; Calvin was then 10 years old and Kayla was six years old. K. tested positive for methamphetamine at birth. Mother admitted using methamphetamine one week before delivery, and approximately every 10 days during pregnancy. A dependency case was opened for K., but Mother did not make substantive progress with her case plan. The juvenile court terminated her reunification services in March 2006. C. completed his services and K. was placed with him in April. In July, the court terminated jurisdiction and denied Mother visitation with K. Mother was allowed supervised contact with Calvin and Kayla.
In December 2006, when Calvin was 12 years old and Kayla was seven years old, the Agency filed dependency petitions for them alleging the following: Mother had a history of methamphetamine use; K. was removed from her care in May 2005 because of her substance abuse; her services in K.s case were terminated in part because she did not participate in substance abuse treatment; C. allowed her to reside in the home in violation of the July order denying her visitation with K.; Mother admitted using methamphetamine as recently as December 5, 2006; on December 7, K. died while in her care; she admitted she might have given him an overdose of medicine; after he died, she left his body in a crib in the family home and then placed the body in a trash bag and deposited it in a dumpster.
Calvin and Kayla were detained in Polinsky Childrens Center, then with a relative. Mother was arrested and taken to jail. At the December 14, 2006, detention hearing, the court ordered she have no contact with the children.
On January 3, 2007, Social worker Reem Radwan interviewed Calvin and Kayla. The children asked when they could see Mother and cried throughout the interview. On January 10, the Agency and Mothers counsel asked the court to allow Mother supervised visits with the children at the jail, after they began therapy and with input from the therapist. The court authorized supervised visits, on the conditions the jail allowed the visits and the visits were not detrimental to the children. Visits began at an unspecified time before the dispositional hearing.
K.s autopsy report was completed in March 2007. It listed the cause and manner of death as undetermined. According to the report, Mother thought she gave him too much Motrin or adult Tylenol and noticed him foaming at the mouth. She believed he died on December 7, 2006, and kept his body in the house until the night of December 9.
In May 2007, the Agency recommended Mother be denied reunification services pursuant to section 361.5, subdivisions (e)(1) [incarcerated parent], (b)(10) [failure to reunify with sibling], and (b)(13) [history of substance abuse]. On May 11, the court entered true findings on the petitions. The dispositional hearing took place on June 12, 2007. By that date, Calvin was 12 years old and Kayla was eight years old.
Social worker Radwan testified at the dispositional hearing that it was not in the childrens best interests to reunify with Mother and Mother should not be offered services. Radwan testified Mother did not comply with services in K.s case, a sign she did not want to help herself to help her children; she continued to live with Calvin and Kayla in violation of the courts order until she was incarcerated and charged with homicide; she admitted having a drug and alcohol problem; beginning in 2003, she used methamphetamine one to four times a day, and continued using it as recently as two days before K.s death in December 2006; she never received treatment; it would be dangerous to Calvin and Kayla to have an ongoing, unsupervised relationship with Mother. Radwan summed up the reasons Mother should be denied services by testifying, "She failed."
Radwan acknowledged Calvin and Kayla were close to Mother and wanted to see her. Radwan envisioned no further contact, but testified a denial of services did not necessarily mean there would never be any contact. In fact, Radwan recommended Mother have supervised visits with Calvin and Kayla, even if denied services. On cross-examination, C.s counsel asked, "Dont you think it would be in their best interest to try to help [Mother] so she can at least have a relationship with them?" Radwan replied, "She has not helped herself, sir."
The Agencys counsel argued the best way to protect Calvin and Kayla was to deny Mother reunification services and to ensure all future contact was supervised. Mothers counsel argued Calvin and Kayla had a strong bond with Mother, and they were going to have contact "because of the close [k]nit family . . . ." Counsel concluded it was in the childrens best interests for Mother to have services "to better herself" and the court should therefore order reunification services be offered to Mother. The childrens counsel noted Calvin and Kayla were older, were "quite bonded with" Mother, saw her regularly, and would continue to do so. Counsel was concerned about this contact when there was no attempt to address Mothers psychological issues, and questioned whether denying her reunification services was the best way to protect the children.
The court denied Mother reunification services, citing section 361.5, subdivision (b)(10). Referring to C.s psychological evaluation, the court stated, "But the doctor says if the family is going to stay together they should get services. Well, that aint happening. It didnt happen with [K.], and I cant really foresee it happening here." The court also noted "theres a difference between contact and visitation in reunification," and referred to "some services that allow the contact." It stated, "Whether the Agency may decide because of the continued aspects that some form of services . . . are appropriate[] [s]o that visits are appropriate and so that theres no further psychological harm to the kids and/or [Mother] learns how to visit appropriately[,] I leave . . . to the Agency."
DISCUSSION
I
The Agency contends this court does not have jurisdiction to order briefing of issues that Mother, the appellant, chose not to brief. The Agency contends because the children did not appeal, they have no standing to suggest this court order further briefing. However, the childrens appellate counsel is entitled to file a brief although the children are not appellants. (Cal. Rules of Court, rule 8.412(b)(4); In re Jeremy S. (2001) 89 Cal.App.4th 514, 526-527, disapproved on other grounds by In re Zeth S. (2003) 31 Cal.4th 396, 408, 413-414.) Furthermore, contrary to the Agencys intimation, the position of the childrens appellate counsel is not contrary to the position of the childrens trial counsel. Finally, although this court is not obligated to address the issues raised in Mothers Sade C. brief, it has the power to order further briefing of those issues and to decide their merits.
II
As a general rule, when a child is removed from a parents custody, the juvenile court must order reunification services. (§ 361.5, subd. (a).) There is an exception to this rule if the court finds, by clear and convincing evidence, "the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify . . . and . . . the same parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling . . . ." (§ 361.5, subd. (b)(10).) If the court denies services based on this exception, it "may continue to permit the parent to visit the child unless is finds that visitation would be detrimental to the child." (§ 361.5, subd. (f).) The childrens best interests are proper considerations in the decision concerning visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 459.)
After the juvenile court makes the finding set forth in section 361.5, subdivision (b)(10), it can still order services if it "finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) "The concept of a childs best interest is an elusive guideline that belies rigid definition. Its purpose is to maximize a childs opportunity to develop into a stable, well-adjusted adult. " (In re Ethan N. (2004) 122 Cal.App.4th 55, 66, quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Factors bearing on best interests include "a parents current efforts and fitness as well as the parents history," "[t]he gravity of the problem that led to the dependency," the childrens bonds to the parent and to their caretaker, and the childrens "need for stability and continuity." (In re Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)
It is the position of Mother and the children in this appeal that at the dispositional hearing they requested the court to order reunification services for Mother because those services were in the best interests of the children. (§ 361.5, subd. (c).) They further contend that neither the court nor the Agency effectively addressed the issue of the childrens best interests at the hearing and instead focused on the conduct of Mother under section 361.5, subdivision (b)(10) as a basis for denial of the request to provide her with services. The role of the reviewing court is to consider whether the court abused its discretion by not determining reunification was in the childrens best interests within the meaning of section 361.5, subdivision (c). (In re Ethan N., supra, 122 Cal.App.4th at pp. 64-65; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.)
The court did not address section 361.5, subdivision (c). The record suggests the court declined to reach the issue of whether continued services to Mother were in the best interests of the children and appears to have delegated to the Agency the decision whether to offer services designed to help Mother relate to the children appropriately and minimize further psychological harm to them. Delegation of this decision to the Agency was error.
Social worker Radwan acknowledged Calvin and Kaylas bond with Mother and their wish to continue visits. Radwan apparently believed continued visits were not detrimental to the children and the court apparently agreed. (§ 361.5, subd. (f).) It is undisputed that Calvin and Kayla are part of a close-knit extended family and will continue to have contact with Mother. The childrens wish to continue seeing her supports the conclusion it is in their best interests to do so. (Cf. In re Michael D. (1996) 51 Cal.App.4th 1074, 1080, 1087-1088 [five-year-old childs "clear and consistent preference for living with his mother" and uncontradicted evidence of her rehabilitation constituted substantial evidence it was in his best interests to be returned to her custody].) At 12 years old and eight years old, Calvin and Kayla have a long-standing bond with Mother and are surely aware of the genesis of this case. The children are trying to maintain their relationship with Mother and contend with her incarceration, their brothers death while in her care, and the bizarre circumstances of his death.
The court did not directly address the issue of the childrens best interests and its failure to do so was an abuse of discretion. We remand so that Mother and children may seek to satisfy their burden of, and the juvenile court may make findings on, whether reunification services for Mother are in the childrens best interests within the meaning of section 361.5, subdivision (c).
DISPOSITION
The orders are reversed. The matter is remanded to the juvenile court with directions to consider and make findings on whether reunification is in the childrens best interests within the meaning of section 361.5, subdivision (c), and whether Mother should therefore be provided services.
We concur:
BENKE, Acting P. J.
HALLER, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code.