From Casetext: Smarter Legal Research

In re Charles S.

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B199575 (Cal. Ct. App. Sep. 16, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK54151, Stanley Genser, Juvenile Court Referee.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James. M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.


PERLUSS, P. J.

Celia D., the maternal great aunt of Charles S. III and Gabriel S., appeals from the juvenile court’s order removing the children from her home pursuant to Welfare and Institutions Code section 387. We affirm.

Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

1. Charles’s and Gabriel’s Placement with Celia; Approval of the Adoption Home Study for Charles

Charles was born in September 2003 with a broken clavicle and ribs, as well as bowed legs, caused by osteogenesis imperfecta, commonly referred to as brittle bone disease. Charles’s mother and father had parenting limitations due to developmental disabilities and a history of violent physical altercations between them. (Both parents were receiving services from the California Department of Developmental Services Regional Center, which provides support for individuals with developmental disabilities.) On December 11, 2003 Charles was taken to the hospital after his mother reported his father had shaken him for at least 28 seconds. The mother told a social worker with the Los Angeles County Department of Children and Family Services (Department) she did not have any family members with whom she wanted Charles placed. Following a hospital hold, Charles was temporarily placed in foster care.

Neither parent is a party to this appeal.

It was subsequently determined Charles’s mother, not his father, had shaken Charles. On April 13, 2004 the juvenile court sustained an amended section 300 petition filed by the Department and ordered Charles suitably placed. The court also ordered family reunification services for Charles’s parents, which included the requirement they complete a parenting class for developmentally disabled individuals and participate in counseling to address issues in their relationship.

On August 30, 2004 the juvenile court terminated family reunification services and set a hearing for December 27, 2004 pursuant to section 366.26 to consider selection and implementation of a permanent plan for Charles. The court also ordered Charles replaced from foster care to Celia’s home -- a two bedroom apartment -- after Celia had expressed interest in adopting Charles and the Department had completed an investigation of her home. Because Celia worked during the day, her adult daughter, Ruby, who lived with Celia, was primarily responsible for Charles’s care while Celia was at work. Celia’s sister also lived in the apartment and shared a room with Charles.

In November 2004 Charles’s brother, Gabriel, was born and shortly thereafter began living in Celia’s home. According to the Department’s December 16, 2004 report, Charles, who was learning how to hug and kiss Gabriel, was “very ‘social’” and “very attached to his aunt and cousins.” Charles, however, was considered to be at high risk for developmental delay and appeared at age 15 months to already be four months behind. The report also stated Celia “appears to be a very independent and capable single parent. [Celia] is committed to raise minor Charles and she is aware of the medical condition of the minor and she understands that Charles needs on-going physical therapy/Regional Center services in order to help him to overcome his developmental delays.” The December 27, 2004 permanency planning hearing was continued until February 28, 2005 for a progress report on the status of the adoption home study for Celia.

On February 6, 2005 the Department received a child abuse and neglect referral from medical professionals after Charles was brought to the hospital with a leg fracture and bruising. Hospital staff observed Charles had lost weight and was diagnosed as failure to thrive. After investigating the allegations, the Department concluded Charles’s injuries were consistent with his diagnosis of brittle bone disease, but there were concerns whether Celia was following-up on Charles’s medical care, including providing his doctor, Daphne Wong, with a list of food Charles ate to help determine the cause of his weight loss. Consequently, in a report dated February 24, 2005 the Department stated the family should be observed for six months to determine whether there was any risk to Charles and the appropriateness of the placement. In a separate report to the juvenile court at approximately the same time, social worker Dorothy Ng (who had also signed the December 16, 2004 report) stated Celia had informed Charles’s doctor that Charles “often display[s] temper tantrums by banging his head and the nurse at [the hospital] has witnessed such behaviors while [Charles] was at the hospital.” The section 366.26 hearing for Charles was continued to May 13, 2005.

In a report signed by Ng on March 11, 2005, the Department stated Charles had been taken to his medical appointments and, at a visit after his cast was taken off, Charles “was playful and active” and “happy.” According to a March 11, 2005 report prepared by Dr. Wong, Charles appeared to be eating an appropriate amount for his age and had gained weight; but she recommended his weight be checked every two months.

On May 13, 2005 the Department filed a section 300 petition on behalf of Gabriel. Charles and Gabriel’s parents had decided they wanted Celia to adopt both children, and Celia had agreed, so they would not grow up in a foster home. The juvenile court continued Charles’s permanency planning hearing to August 1, 2005. On July 19, 2005 the court sustained an amended section 300 petition as to Gabriel, declined to offer reunification services and set a section 366.26 permanency planning hearing for Gabriel for November 15, 2005.

The adoption home study for Charles was approved on July 22, 2005. In a report signed by Ng on July 25, 2005, the Department stated Charles, who was “closely bonded” with Celia and Ruby, “continues to receive adequate care and supervision in home of his aunt. [Charles] continues to grow and he feels secure and comfortable in residing in [Celia’s] home. [Celia] stated minor gets along well with his baby brother Gabriel and he learns how to play with him in a non aggressive manner. Charles is active and he appears to be happy.” The report noted, however, that “[Celia] states that when Charles gets upset he would display a temper tantrum by throwing himself on the floor but he would calm down if you pick him up and hold him.” On August 1, 2005 Charles’s section 366.26 hearing was once again continued to November 15, 2005 -- the date scheduled for Gabriel’s permanency planning hearing.

In connection with the November 15, 2005 permanency planning hearing for Gabriel, the Department’s report, signed on November 3, 2005 by Ng, stated Gabriel, who “appeared to have age-appropriate developmental skills,” was “closely bonded with [Celia] especially with [Celia’s] adult daughter, [Ruby,] who takes care of him when [Celia] is at work. Baby Gabriel loves to be [held] by both ‘caretaker[s]’ and he learns to play with his brother Charles when he is in good mood.” The report also stated, “[Celia] has been providing minor Gabriel with adequate care, nourishment and a stable safe home environment since he was placed.” The Department reported that Tami Hill, the new adoption worker assigned to Charles and Gabriel, was in the process of approving the adoption home study for Gabriel.

2. Rescission of the Adoption Home Study for Charles; Denial of the Adoption Home Study for Gabriel

In an information report dated November 15, 2005 Hill stated she had visited Celia’s home on October 12, 2005 and found the apartment was dirty; the patio was full of trash, including old furniture and dirty diapers; the cabinets did not have safety locks; and there were cleaning supplies stored on the floor in the reach of the children. Hill opined, “[t]he house was marginal at best,” and explained to Celia what had to be remedied before the home study for Gabriel would be approved. Hill scheduled a follow-up visit for November 7, 2005.

On November 7, 2005 Hill arrived at Celia’s home 30 minutes before the scheduled visit and found the family “frantically cleaning the house.” In her November 15, 2005 report Hill described the home as “somewhat picked up,” but noted the safety locks, which had been purchased, had not yet been installed. Hill also expressed concern Ruby was soon due to give birth and had indicated taking care of three children would be too difficult and the home was too small for three children and three adults (Celia’s sister had moved out, but her mother had moved in). Hill recommended against terminating parental rights because Celia’s home was not then appropriate for adoption.

At the hearing on November 15, 2005 new counsel for Charles and Gabriel requested a supplemental report to address, among other things, whether Celia was receiving the appropriate funding rate for the children and asked the court to require the Department to apply for child care funding and to assist Celia in obtaining child care services to meet Charles’s special needs. Counsel for the Department did not object; the court signed the proposed order and continued the hearing to December 13, 2005.

On December 7, 2005 Hill and Ng made an unannounced visit to Celia’s home. In a report prepared and signed by Hill on December 7, 2005, the Department stated Celia’s “home and the care she provides is extremely marginal. [Celia] is currently struggling with meeting the children’s basic needs.” Although noting the home was “adequately clean,” Hill observed, “The children appear to lack stimulation in this home. The children scream frequently and are somewhat unruly. The three adult caretakers just yelled at the children to stop crying. The children frequently have bruises, which appear to have adequate explanations for how the children received the bruises however; it appears the children would benefit from better supervision. The children lack toys to stimulate their learning. [Celia’s] explanation for the lack of toys is that the children throw the toys.” Hill described additional concerns about the home and stated the Department was considering rescinding approval of the home study for Charles and would not approve the home study for Gabriel at that time.

A Department report signed and dated December 12, 2005 by Ng included some of the same facts as Hill’s -- for example, Gabriel was sleeping in a playpen because Charles had broken his crib, and the family wanted to find daycare for Charles and Gabriel because it would be difficult for Ruby to take care of three children (Ruby’s daughter Delilah was born in November 2005) when Celia’s mother moved out in January -- but did not include the more critical observations Hill had made. Indeed, this report stated Celia was “following through with the recommendations from the Department, there appears to be a strong bonding developed between minors and [Celia]” and the Department “believes that the adoption plan for both minors appears to be appropriate and is in the best interest and welfare of the minors.” The report did state, however, “Due to the unique developmental needs of both minors, it appears that the caretaker would benefit from parenting education classes.”

At the hearing on December 13, 2005 the juvenile court expressed concern the social worker had not addressed any of the information requested in the order prepared by the children’s counsel and signed on November 15, 2005, including determining the appropriate funding rate for the children and completing an application for child care funding. The matter was continued until January 6, 2006 for a supplemental report.

According to a supplemental report dated January 6, 2006 submitted by Ng, Charles, but not Gabriel, had been approved for a special foster care rate, and payments to Celia would be made retroactive to February 11, 2005. Charles and Gabriel were both referred to Department child care services, but the waiting list was four to six weeks. In addition, the child care service was not equipped for children with special needs.

The supplemental report prepared by Hill and submitted on January 6, 2006 stated Hill and her supervisor had made another unannounced visit to Celia’s home. Although “[t]he family has definitely made efforts to improve the marginality of the home,” there were still concerns, including “the family does not provide these basic needs for the children on their own accord,” and “[o]nce the children are adopted they do not qualify for childcare funding and the family does not currently have the funds to pay for childcare on their own.” Hill also reiterated her concern the children had “no affect when you come into the room other than crying” and “dark circles under their eyes . . . . The children now have toys to help with stimulating them but that will only help so much if the family does not play with them, read to them, hug them, stimulate and nurture them.”

In a report signed on February 21, 2006 by both Hill and Ng, the Department reported it would not approve the home study for Gabriel and the home study for Charles would be rescinded because, among other reasons, “[b]esides the lack of stimulating toys in the home [Celia] and her adult daughter Ruby rarely stimulate the children by interacting with them in a positive manner. This CSW [Hill] has never witnessed them playing with or encouraging the children in any learning activities. The boys are spiritless and lack emotional attention from the caretakers. Charles and Gabriel present as children who are attention starved crying regularly with little to no affect. The family also has not encouraged the children to eat with utensils and gain fine motor skills.” Additionally, the Department was concerned about Charles’s head-banging behavior and Celia’s response to it: “. . . Charles had a bruise near his left eyebrow which the caretaker explained as a result of Charles[’s] head banging behavior. Charles was having a tantrum so as a corrective action he was placed in the crib for a time out where he continued to tantrum and bang[] his head resulting in a bruise. The caretaker again had poor [judgment] when choosing to place a tantruming child in a small confined place for a time out. The Department suspects the head-banging behavior is Charles begging for attention.” The Department stated it had identified seven approved adoptive homes as potential matches for Charles and Gabriel and recommended the court vacate its order requiring prior court approval before the Department could move the children from Celia’s home. The court agreed and lifted its prior order at a hearing on February 23, 2006.

3. Dr. Collister’s Evaluation of Celia’s Home; Placement of the Children with the Prospective Adoptive Parents

On March 2, 2006 Celia and her brother Russell, who was unknown to the Department, filed a request for appointment as de facto parents. (Russell purportedly lived about 25 minutes away from Celia and saw Charles and Gabriel for an hour each day.) At a hearing on March 9, 2006 the juvenile court ordered a psychological evaluation of the family pursuant to Evidence Code section 730 and stated it would defer ruling on the de facto parent request until it had received the results of the evaluation. The court explained, “There have been problems in the current caretaker and I don’t know. There’s been allegations made all along that she wasn’t receiving appropriate services. I don’t know if it’s her inability or lack of capacity to meet the special needs of these children or lack of services or some problem on the kids’ side that causes them to behave and act and appear the way they are. That’s why I want a 730.”

Dr. Collister, the psychologist appointed by the juvenile court, visited Celia’s home on May 5, 2006 and observed Celia, Ruby, Russell and the children (including Delilah) together, as well as separately interviewed the adults. As recounted in a 26-page assessment filed with the court on June 23, 2006, during the first 90 minutes of the observation period the adults mostly talked among themselves with little response to or interaction with Charles and Gabriel. Although there were numerous toys in the corner of the room, they were not easily accessible because the corner was behind the arms of two abutting couches. Charles eventually managed to get into the corner and sit on a small toy car, but he had no room to move it. “The adults essentially ignored him until he squeezed out, but without the car or any other toy.”

After 90 minutes of observing the children ambling about without much interaction, Dr. Collister directed the adults to give some toys to them so they could entertain themselves. Although Ruby brought out two scooters the children initially played with, when they began fussing or tired of playing with them, there was little to no further interaction by the adults “to support, direct, or enhance the play, let alone participate at any point.” Approximately one hour later Collister showed the adults how to play with small toy cars with the children, “modeling an interactive game.” Collister reported, “It was clearly possible to engage the boys with a bit of direction. . . . The boys enjoyed the game and were able to engage with only a bit of direction.” Although Celia began to participate, Ruby and Russell did not. Collister stated, “Indeed, Ruby made comments about the loud toy that Celia was using, a toy monkey that made monkey sounds, suggesting that the sound was annoying. No other toys or activities were introduced. I asked if Gabriel or Charlie had a favorite toy. Celia and the others said they did not think so.”

Based upon his observation of the family and interviews with the adults, Dr. Collister opined, “There does not appear to be any information to suggest that the minors would be physically or emotionally abused by the adults. Moreover, there is no information to suggest that there would be any formal neglect by the standards of what is typically considered neglect in front of the Dependency Court. However, it does appear that the interactions with the children by all three of the adults in this situation are not particularly warm, nurturing, or providing significant stimulation. This does not constitute neglect, per se, nor would it be expected to reach that level in the future, but is at a level which would not serve the emotional interests of these children well.” Collister was particularly surprised at the lack of nurturing and stimulation by the adults given they were being evaluated for adoption and the Department had specifically identified lack of stimulation as a concern. Collister also opined Charles and Gabriel “would not be significantly harmed if they were replaced into a different placement setting . . . especially if the new placement setting was ensured to provide a high level of nurturance, warmth, and bonding with the new parents” in part because “the emotional bonding between the two boys and the adults is not strong, but mild at most.” Collister recommended, however, that if the children were to remain in Celia’s home, the adults should receive parent training, with specific training in behavior modification techniques, and directed family therapy to teach them how to interact more appropriately with the children.

On August 4, 2006 the Department removed the children from Celia’s home and placed them with a family with an approved adoptive home study, in large part based upon Dr. Collister’s report and concern about an incident on February 15, 2005 when Ruby transported Charles to the Department’s offices without using a car seat. Both prospective adoptive parents, J.C. and Pablo, had education or experience in the fields of child development, education and psychology and experience with special needs children. J.C. took leave from his job so he could be a full-time parent.

On August 9, 2006 the Department filed a section 387 supplemental petition for more restrictive placement, requesting that the court modify its prior disposition order placing the children with Celia and enter a new order replacing the children in a foster home. The petition alleged Celia had not met the emotional needs of the children, specifically asserting she had failed to stimulate them, nurture them, provide emotional warmth or emotionally engage with them. According to the petition, “[s]uch failure of the children’s relative caregiver endangers the children’s physical and emotional health and safety and places the children at risk of serious physical and emotional harm and damage.”

4. The First Contested Hearing on the Section 387 Petition

Adjudication of the supplemental petition began on September 7, 2006. Dr. Collister testified about his evaluation of Celia’s family and the contents of his report, which was admitted into evidence. With respect to the children’s head-banging behavior (Gabriel had begun it as well), Collister testified, although he had not stated so in his report, “after having thought about this more . . . I think there’s a real possibility that the lack of stimulation, the lack of interaction, the lack of connectedness has been part of driving that head banging expression.” Collister also testified he thought the history of the case suggested Celia and her family’s ability to learn necessary parenting skills was compromised, although he did not know whether it was because of limited cognitive ability, limited intellectual capacity, lack of motivation or some other reason. Following Collister’s testimony there were several continuances until December 22, 2006.

After the adjudication resumed, several witnesses testified including Ng, Hill, Celia, Ruby and the licensed daycare provider with whom the children had been attending daycare since early February 2006, with conflicting testimony as to, among other things, whether the children had been “spiritless” when they lived with Celia, the strength of the bond between Celia and the children and the demeanor of the children during visits with Celia after they were placed with J.C. and Pablo. Celia testified to the many things she had done to raise Charles and meet his special needs, including moving to West Covina from Anaheim to obtain suitable daycare. According to Celia, after Charles began banging his head, about the time Gabriel came to live with them, she had asked Ng what to do to stop it, but never got a response from her. When she spoke to the Regional Center about getting a helmet for Charles to protect him, they advised against it. Celia, however, did learn some techniques for addressing the problem by doing research on the internet.

Apparently there were declarations attached to Celia’s request for de facto parent status, admitted into evidence, explaining the family had been nervous during Dr. Collister’s evaluation and were waiting for some direction from Collister because they did not know how to act. Although the declarations are not included in the record on appeal, they were mentioned by Celia’s counsel during closing argument. Ruby testified, however, that she knew Collister was there to see how the family interacted with the children.

Ng testified she had discussed with Celia alternative ways of dealing with head banging.

During closing arguments the juvenile court expressed concern about the evidence: “[T]he quality of the evidentiary evidence I have received is suspect from everybody. I have used Dr. Collister on many occasions. He’s good, but I am concerned that he only had a small window of opportunity to see what was going on. There was some inconsistencies between Ruby and [Celia] in who did what in terms of caring for the children. But overall I am not satisfied with the quality of the evidence that has been presented one way or the other. I can find fault with just about everybody’s testimony including or especially Ms. Ng. . . . If I were to accept Collister’s testimony over everybody else’s, obviously I would sustain the petition. But I, in reviewing the entire picture, I think I would like another 730. That’s the way I am leaning.” The court was also concerned no evidence had been presented whether the children were improving since their placement with J.C. and Pablo. The court trailed the matter so it could determine whether it wanted further evaluation.

Counsel for Charles and Gabriel argued the placement with Celia was “more than adequate” and “disagree[d] with the Department’s position entirely.”

Notwithstanding the court’s observation about the absence of such evidence, Ng had testified the children seemed happy since they had been placed with J.C. and Pablo and had stopped banging their heads. Additionally, the Department had submitted a report dated November 17, 2006, signed by Ng, addressing the “significant improvement not only developmentally but also physically and emotionally” Charles and Gabriel had made since being placed with J.C. and Pablo, but apparently the report was not introduced into evidence. The report stated, “The smiles on their faces, their energy and eagerness to learn, further support the evidence that both Charles and Gabriel have found themselves a home and they are loved by their prospective adoptive parents.”

On January 3, 2007 the juvenile court declared a mistrial on the ground the evidence was insufficient and the issues had not been fully litigated. Because new counsel had just been appointed to represent the children, the court concluded it could not simply reopen the case and order the Department to provide additional evidence. (The Department had submitted a report that day containing information on how the children were doing in the care of J.C. and Pablo.) The court stated, “The court is interested in doing what’s best for the children. I don’t believe [Celia] was properly serviced by the Department. I’m not so sure what rights she has to services to protect or ensure the success of the placement to begin with. But in terms of trying to decide whether the children would be better off with their relative caretakers versus being placed in a non-relative foster home for adoption, frankly, I’m not persuaded -- I mean, all we have basically is a snapshot of an evaluation done by a . . . psychologist pursuant to 730 and nothing more, other than the -- some compelling evidence presented by [Celia] in defense showing what progress the children made in terms of development while the children were in her care. Now the Department provides additional evidence that obviously was known or should have been known to the Department before the Department rested on its 387. I am going to grant the mistrial over the objection.” The court, however, did not order a new 730 evaluation; it did order unmonitored visitation between Celia and the children for four hours per week. The court also requested that Ng be replaced as the children’s social worker because it did not find her competent.

4. The Second Contested Hearing on the Section 387 Petition

The second hearing on the 387 petition began on March 1, 2007. The parties had stipulated to the admission of the transcript of the first adjudication, so testimony of the many witnesses was limited to additions or clarifications to information already in the record. For example, J.C. testified regarding the improvement the children had made in his and Pablo’s home, including the elimination of the head-banging behavior and improvements in Charles’s speech and weight. (Charles, however, had fractured his femur while running in the kitchen and, on a separate occasion, somehow injured his forehead requiring three stitches.) J.C. also testified Charles and Gabriel stopped crying at the end of their unmonitored visits with Celia after the third or fourth visit, and Charles had become “totally defiant” in the last six months on visiting days, refusing to get dressed and shouting, “I don’t have to. I don’t want to go.”

Celia testified about her and Ruby’s unmonitored visits with the children. She described Charles and Gabriel as very excited to be with them at the first visit and crying when they had to be returned to J.C. and Pablo. After comforting and reassuring the children at the end of a subsequent visit, they were less distressed when leaving Celia and Ruby, but at the end of more recent visits, they would whine and cry and express their desire to stay with her. Ruby also testified the children were excited to see them during visits and did not want return to J.C. and Pablo when they were done.

Anthony Okelola, a social worker assigned to monitor a visit between Celia and the children (notwithstanding the court had ordered unmonitored visitation), observed a visit on approximately January 6, 2007 and prepared a written summary of the visit. He testified that, although Celia was unable to move about much -- at 5 feet, seven inches she weighed 260 pounds and had health-related limitations -- the children appeared to be having fun, alternating between the playground apparatus at the location of the visit and Celia. He also testified the interaction between the children and Celia was positive.

On May 8, 2007, at the conclusion of Celia’s testimony, her attorney informed the court she had no more witnesses available at that time, but requested a continuance until June so she could call Dr. Sandra Kaler, who was not available until then, as an expert witness. According to Celia’s counsel, she could not find another expert available in the short period from the last court date to review records and render an opinion. The court denied the request, finding there would be detriment to continuing the case for such a long time, which had “already probably continued six months too long already.”

On May 25, 2007 the juvenile court, relying heavily on Dr. Collister’s report, sustained the 387 petition. The court explained, although reports had been submitted indicating the children had made significant progress on their developmental issues while in Celia’s care between April and October 2005, it was concerned about the children’s self-destructive behavior and Celia’s inability to meet their emotional needs. The court noted, “In fact Dr. Collister pointed out in his report on page 24 that appropriate behavior modification intervention with these children would likely have substantial and fairly quick impact. And the evidence demonstrates that when the children were replaced to the current caretakers that is what in fact actually did happen.” The court concluded, “I can go over Dr. Collister’s report line by line and page by page which I’m not going to do indicating the ways in which [Celia] and her daughter Ruby were not able to effectively parent these children. I think probably the primary reason, perhaps there are two primary reasons, I take from the evidence. One is lack of appropriate parenting skills by [Celia] and her daughter, and also the physical limitations on [Celia] due to her weight issues, to her illness, the fact that she is totally reliant or dependent on a walker for mobility. . . . [A]ll the interaction that is observed between [Celia], Ruby and the children shows passive intervention by [Celia] and Ruby. They sit and watch. They observed. They don’t respond. They don’t pick up the child when the child is crying, that was observed by the social workers, that was observed by Dr. Collister.”

In contrast to the position taken by the children’s counsel at the first adjudication, at the second hearing new counsel for Charles and Gabriel contended removal from Celia’s care was proper.

The court rejected Celia’s explanation she had failed to interact with the children during Dr. Collister’s evaluation because it was the first time she had ever participated in an evaluation and did not know what she was supposed to do: “So she knew what the concerns were because that’s what she told Dr. Collister. She knew what the concerns were and then she -- knowing all of that, knowing that a 730 was set up to see what the nature and extent of the bonding is, attachment is, and her ability to parent these children she behaved exactly the same way she always had been seen before in terms of how she interacted in parenting these children. So I don’t accept the fact that she didn’t know what she was supposed to do during this observation. I think it has more to do with her physical limitations.”

The juvenile court granted J.C. and Pablo’s motion for de facto parent status, which had been filed on January 3, 2007, and denied Celia’s.

At the section 366.26 hearing for both children held on June 21, 2007, the court denied Celia’s request for reunification services, finding she was not legally entitled to services and it was in the best interest of the children to remain with J.C. and Pablo. After finding the children were adoptable the court terminated parental rights, declared the children free from the custody and control of their mother and father and transferred their care, custody and control to the Department for adoption planning and placement.

CONTENTIONS

Celia contends there is insufficient evidence to sustain the section 387 petition; the juvenile court erred in considering Celia’s physical condition as a basis for removal of the children; the court erred in failing to consider alternatives to removal from Celia’s home and considering the progress of the children in J.C. and Pablo’s home; and the court violated Celia’s right to due process when it denied her request for a continuance to allow her proposed expert to testify.

DISCUSSION

1. Substantial Evidence Supports the Court’s Order Removing Charles and Gabriel from Celia’s Home

Section 387 authorizes the Department to petition the court to change a child’s placement because the existing placement is no longer effective in protecting the child or a relative placement is no longer appropriate in view of the criteria in section 361.3, which include the child’s special physical, psychological, educational or emotional needs, preference for placement with a relative, the wishes of the parties involved, the ability to place siblings together and the moral character of the relative and other adults living in the home. (§ 361.3, subd. (a).) We review a decision to remove a child from his or her placement under the substantial evidence standard. (In re A.O. (2004) 120 Cal.App.4th 1054, 1061.)

Section 387, subdivisions (a) and (b), provide, “(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition . . . shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.”

Section 361.3, subdivision (a), provides, “In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative’s desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child’s other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative’s home. For a relative to be considered appropriate to receive placement of a child under this section, the relative’s home shall first be approved pursuant to the process and standards described in subdivision (d) of Section 309. [¶] In this regard, the Legislature declares that a physical disability, such as blindness or deafness, is no bar to the raising of children, and a county social worker’s determination as to the ability of a disabled relative to exercise care and control should center upon whether the relative’s disability prevents him or her from exercising care and control. . . .”

We inquire only whether there is any evidence, contradicted or uncontradicted, that supports the court’s determination. We resolve all conflicts in support of the determination, indulge in all legitimate inferences to uphold the findings and may not reweigh the evidence, evaluate the credibility of witnesses or substitute our deductions for those of the juvenile court. (In re S.C. (2006) 138 Cal.App.4th 396, 415; In re Katrina C. (1988) 201 Cal.App.3d 540; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)

There is no question this was a difficult case for the juvenile court; and, as the court observed, the Department may have been able to provide Celia with additional services that could have obviated the need to remove Charles and Gabriel from her home. But the court’s ultimate decision to remove Charles and Gabriel from Celia’s home and to place them with J.C. and Pablo is fully supported by the record.

At the close of the first adjudication, there was no clear answer whether Celia was a struggling, but ultimately capable, relative caregiver, who with further support and services from the Department could adequately meet the needs of Charles and Gabriel or simply someone unable to properly care for two children, one with special needs like Charles, regardless of the quality of services provided to her. The two social workers involved in evaluating Celia and her home presented drastically different views on the adequacy of her caregiving: Ng prepared largely positive reports about the children’s progress in Celia’s home and shepherded the approval of a home study for Charles, which was rescinded at the urging of Hill, who had written highly critical reports. Dr. Collister, after conducting only a “snapshot” evaluation, opined that Celia’s lack of nurturing and warmth did not constitute “formal neglect by the standards of what is typically considered neglect” by the court. Nonetheless, he concluded it was at a level that would not serve the emotional interests of the children. Celia and other members of her family, however, attempted to explain why they had failed to interact more with the children during Collister’s evaluation.

Confronted with this conflicting evidence, as well as yet another substitution of counsel for Charles and Gabriel, the juvenile court’s decision to declare a mistrial and restart the adjudication was prudent. Provided with additional evidence at the second hearing and once again given an opportunity to evaluate the credibility of the witnesses, the court reached a decision supported by substantial evidence. In particular, the additional evidence of the children’s dramatic improvement once they were provided appropriate care, including cessation of their head banging, validated Dr. Collister’s negative evaluation of Celia’s ability to care for the children. Moreover, after the second adjudication the court was better able to evaluate the plausibility of the family’s explanation they had failed to interact with the children during Collister’s evaluation because they were unsure how to act.

Charles had begun displaying head-banging behavior as early as February 24, 2005, approximately 15 months before he was removed from Celia’s care. According to J.C.’s testimony, Charles stopped head banging within two months of placement in his and Pablo’s home. They utilized a technique similar to a “time-out,” having him sit and place his hands on the floor for a few minutes.

In support of her contention the court lacked sufficient evidence to sustain the supplemental petition and remove the children from her home, Celia argues the children made a number of improvements in her care, reflected in the positive reports from the Department, and recounts the many affirmative steps she took to ensure Charles’s special needs were met. She also asserts the case “was turned upside down” after Hill visited her home. Although these points may have merit, they are insufficient to demonstrate there is no substantial evidence to support the juvenile court’s finding she had failed to adequately stimulate and emotionally nurture the children. (In re S.C. (2006) 138 Cal.App.4th 396, 414.) As the juvenile court explained, the children may indeed have made progress in her care at some time, but it is undisputed they nevertheless developed self-destructive behavior (according to J.C., Charles also pinched himself, behavior J.C. said Ruby had observed) that was of concern to the court. Moreover, although Hill may have had an entirely different view of Celia’s care than Ng, and her involvement with the family and resulting unfavorable evaluations clearly changed the course of the proceedings, the court was entitled to determine Hill was more credible than Ng -- as demonstrated by its critical comments about Ng -- and give her assessment more weight than Ng’s.

2. The Juvenile Court Did Not Err in Considering Celia’s Physical Condition as a Factor Contributing to Her Inability To Properly Care for the Children or in Considering the Children’s Improvement in J.C. and Pablo’s Care

Celia contends the juvenile court’s finding she was unable to effectively parent Charles and Gabriel in part because of physical limitations due to her weight and illness and the fact she is totally reliant on a walker for mobility runs afoul of the Legislature’s declaration in section 361.3, subdivision (a)(8), “that a physical disability, such as blindness or deafness, is no bar to the raising of children.” However, subdivision (a)(8) further explains that “a county social worker’s determination as to the ability of a disabled relative to exercise care and control should center upon whether the relative’s disability prevents him or her from exercising care and control.” That is precisely the analysis in which the court engaged when considering Celia’s passive interaction with the children and, indeed, when evaluating whether her explanation why she did not interact with the children during Dr. Collister’s evaluation was credible. As the court explained, “I made reference to your client’s disability, not that it automatically disqualifies her, but explains why she was unable, in the court’s opinion, to meet the physical and emotional needs of the children.”

Celia also contends the juvenile court erred in considering the progress made by Charles and Gabriel in the foster home in determining whether there was sufficient evidence she was unable to appropriately stimulate and nurture the children. She argues she would inevitably fall short in any comparison of her home -- a loving relative who had unsuccessfully fought for services from the Department -- to that of J.C. and Pablo, who had the assistance of a private foster family agency and educational and employment histories in childhood development. Although we are sensitive to the general concern Celia raises about the inequity of simply comparing a foster home with greater economic and educational advantages to a relative’s home with fewer resources, she cites no precedent, nor are we aware of any, to support her argument the juvenile court committed reversible error by considering the progress the children made in J.C. and Pablo’s home. Indeed, viewed in context, in considering whether the children had made any significant progress in their new home, the juvenile court was attempting both to further the best interests of Charles and Gabriel and to give Celia the greatest opportunity possible to keep the children by looking for evidence that might corroborate or contradict Dr. Collister’s negative evaluation. In fact, the relatively rapid cessation of the children’s self-destructive behavior after placement with J.C. and Pablo had been predicted by Collister, who had opined appropriate behavior modification with Charles and Gabriel would likely have substantial and fairly quick impact. While ideally Celia, a loving relative who clearly cared for the children and wanted to raise them, would have been provided all the training and resources needed to equip her and Ruby with the parenting skills J.C. and Pablo already possessed, the juvenile court was not required to ensure the Department do so.

Celia’s citation to In re Jeannette S. (1979) 94 Cal.App.3d 52, 60 to support her argument the Department should have provided her and Ruby with additional services and resources to overcome their limitations is misplaced. That case dealt with the “standard of clear and convincing proof of parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent,” not the standard for removal of a child from a relative placement. (Ibid.)

3. The Juvenile Court Did Not Violate Celia’s Right to Due Process When It Denied Her Request for a Continuance

Celia contends the juvenile court violated her due process rights when it deprived her of the opportunity to present expert testimony by denying her request for a continuance to accommodate her expert’s schedule. The juvenile court may only continue a hearing if good cause is shown and the continuance would not be contrary to the interest of the child. (§ 352, subd. (a).) In considering the child’s interest the court is directed to give substantial weight to “the need to provide children with stable environments.” (Ibid.) The court’s denial of a request for a continuance will not be overturned unless the decision is arbitrary, capricious or patently absurd, resulting in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) Continuances in dependency proceedings are discouraged. (Id. at p. 179.)

The juvenile court did not abuse its discretion in denying Celia’s request for a continuance. Although Celia argues on appeal J.C. raised the possibility Charles was autistic, thus warranting an expert evaluation to determine whether autism was in part responsible for Celia’s inability to engage and stimulate him, all J.C. testified was that Pablo recognized certain behavior Charles was engaging in as “auto-stimulation” because he had worked with autistic children before. This was hardly a sufficient basis to warrant a continuance to permit an expert in children’s mental health to evaluate Charles, who, in his young life, had been seen by numerous doctors, therapists and both Regional Center and Department personnel without any previous suggestion he might be suffering from autism.

DISPOSITION

The order sustaining the supplemental petition and removing Charles and Gabriel from placement with Celia is affirmed.

We concur: ZELON, J., JACKSON, J.


Summaries of

In re Charles S.

California Court of Appeals, Second District, Seventh Division
Sep 16, 2008
No. B199575 (Cal. Ct. App. Sep. 16, 2008)
Case details for

In re Charles S.

Case Details

Full title:In re CHARLES S. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Sep 16, 2008

Citations

No. B199575 (Cal. Ct. App. Sep. 16, 2008)