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In re J.V.

California Court of Appeals, Second District, Third Division
Feb 10, 2011
No. B225598 (Cal. Ct. App. Feb. 10, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County, No. CK69798 Debra Losnick, Referee. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.


KLEIN, P. J.

E.R. (mother) appeals an order terminating her parental rights with respect to now 14-year-old J.V. Mother contends the juvenile court failed adequately to ascertain J.V.’s desires with respect to adoption and failed to determine whether J.V. understood all the implications of termination of mother’s parental rights. (Welf. & Inst. Code, § 366.26, subds. (c)(1)(B)(ii), (h).) We reject these claims and affirm the order terminating parental rights.

Subsequent unspecified statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2007, the Department of Children and Family Services (the Department) received a referral indicating that mother had become upset with 11-year-old J.V. and struck him uncontrollably with a belt leaving welts on his back and shoulders. Investigation revealed mother also struck J.V.’s brother, seven-year-old C.A., with a stick and that the boys and their sister, six-year-old K.A., had witnessed physical altercations between mother and her sister. Mother was arrested as a result of the incident and admitted to a Sheriff’s deputy that she was under a lot of stress, she lost control and she struck J.V. with a belt. J.V., C.A., and K.A. were placed in foster care. J.V. told the social worker he did not have a relationship with his “real dad.” However, he calls R.A., the father of C.A. and K.A., “dad” because R.A. has been in his life since J.V. was five years old.

The Department filed a dependency petition alleging the children were dependent within the meaning of section 300, subdivisions (a), (b), (g) and (j).

The juvenile court ordered the children detained and granted the Department discretion to release them to R.A. or any approved relative.

R.A. told the social worker he considers J.V. his son and he was willing to provide a permanent home for all three children. The children were placed in R.A.’s care on September 29, 2007.

The jurisdiction report filed November 15, 2007, indicated the children were happy living with R.A. J.V. told the social worker he was afraid of mother and this was not the first time mother had struck him or his brother.

On November 15, 2007, the juvenile court sustained the petition as to mother under section 300, subdivisions (a) and (j). On January 2, 2008, the juvenile court sustained the petition as to J.V.’s biological father under section 300, subdivisions (b) and (g). The juvenile court ordered mother to comply with all orders of the criminal court, to attend conjoint counseling with the children, to attend individual counseling to address case issues and to attend Parents Beyond Conflict.

A social report submitted April 24, 2008, indicated mother had enrolled in a 52-week parent/child abusers program and was making progress but needed to work on controlling aggressive behaviors. All three children stated they wished to continue living with R.A. but would like to visit mother. The report indicated the adoptions social worker explained to R.A. the difference between legal guardianship and adoption. R.A. stated he loved J.V. as his own child and would like to adopt him. However, he believed the adoption process was unnecessary because J.V. had lived with him for many years.

A social report prepared for October 23, 2008, indicated mother had completed a 52-week parent/child abuser program. Mother had overnight visitation every other weekend with the children and she was allowed to pick the children up from school on Mondays, Wednesdays and Fridays. In October of 2008, the children’s school advised the Department the children were not picked up on time on Mondays, Wednesdays and Fridays. Also, the children told the social worker that mother is always in the company of her male companion who has refused to live scan despite several requests by the social worker. Additionally, mother has been living with her brother, a registered sex offender, even though the social worker requested that mother not expose the children to him. The children stated mother’s brother and her male companion live in mother’s home and were always around when they visited. The social worker made several unannounced visits to mother’s home to confirm who was living there. On one occasion, a male answered the door and refused to identify himself.

The report indicated that, in May of 2008, J.V. wrote letters to the social worker stating mother failed to protect him from maternal grandmother who pulled his hair and that mother failed to protect C.A. from maternal uncle who pulled his ear. In a letter written in June of 2008 and three letters written in September of 2008, J.V. reported that maternal uncle and mother’s male companion were present during visits. In October of 2008, J.V. wrote that he and his siblings did “not want to have visits anymore. I am afraid to go back with my mom. I and my sibling[s] will suffer a lot.”

The Department recommended that family reunification services be terminated and that jurisdiction be terminated as to C.A. and K.A. with a family law order granting R.A. sole physical custody. The Department recommended that J.V. continue to be placed with R.A. under a permanent plan of legal guardianship.

On October 23, 2008, counsel for J.V. and C.A. asked that visitation be terminated as detrimental. Alternatively, counsel asked that further visitation be monitored in a therapeutic setting and contingent on conjoint counseling. The juvenile court declined to terminate mother’s visitation but, as to all three children, ordered that it occur only in a therapeutic setting.

A social report prepared for December 10, 2008, indicated J.V. had not yet started counseling. Therefore, mother had not been able to visit. However, mother has had telephone contact with the children.

On December 10, 2008, the juvenile court terminated dependency proceedings as to C.A. and K.A. and awarded R.A. primary physical custody with monitored visitation for mother in a therapeutic setting. As to J.V., the juvenile court continued mother’s family reunification services.

A social report prepared for March 13, 2009, indicated R.A. and the children had completed a 25-week Parents Helping Parents program. J.V. was referred to receive counseling services. However, R.A. moved to another city and the services were not able to be provided. Therefore, mother had been unable to visit but has had telephone contact with J.V. Mother had not yet commenced individual counseling.

On March 13, 2009, the juvenile court set the matter for a contested hearing.

A last-minute report filed April 23, 2009, indicated that, after the social worker submitted a referral for therapeutic services for J.V., the medical case manager had difficulty reaching R.A. and an assessment could not be scheduled until April 26, 2009. R.A. has stated that J.V. is well-adjusted and does not need therapy. A week later, the Department reported the medical assessor found J.V. did not qualify for therapeutic services because he appeared adjusted and stable. The social worker recommended that mother’s visitation order be modified to provide for monitored visitation in a neutral setting.

At a contested review hearing on April 30, 2009, mother objected to termination of family reunification services and asserted that, other than individual counseling, she had completed the case plan. Mother expressed a desire to visit J.V. and claimed the Department had failed to provide reasonable services. J.V.’s counsel noted that, after mother completed her programs, the juvenile court found visitation with mother detrimental to J.V. Thus, mother did not benefit from the programs she attended. Counsel stated J.V. “has remained very strong and very consistent in stating that he wishes to be adopted....” Further, although the Department recommended legal guardianship, J.V. and R.A. preferred adoption. The juvenile court terminated mother’s family reunification services and set the case for a permanency planning hearing.

A social report prepared for August 27, 2009, indicated J.V. continues to reside with R.A. and refers to him as “his father.” Mother has attempted to telephone J.V. However, J.V. has stated he does not wish to see mother or speak with her.

A Concurrent Planning Assessment indicated that, on May 29, 2009, the adoptions social worker made an appointment with R.A. to provide him information on adoption. R.A. failed to appear for the appointment and did not reschedule. On June 15, 2009, the adoptions social worker made an unannounced home visit. R.A. indicated he understood the difference between legal guardianship and adoption. However, he expressed frustration over the adoption regulations and strongly believed that, because he has raised J.V. for many years and the Department is familiar with his history and family situation, he should not have to go through the home study process. The social worker explained that R.A. could not be exempted from the home study process. R.A. stated he and J.V. were “tired” and “want[ed the Department] out of their life.” The adoptions social worker advised R.A. to decide whether he wanted to adopt J.V. or pursue legal guardianship. R.A. stated, “I want to adopt [J.V.] and he wants me to adopt him.” At that point, R.A. agreed to have an adoption case opened. The adoptions social worker wanted to speak with J.V. but he was at school and R.A. indicated he does not want to speak to any social workers.

Thereafter, a new adoptions social worker was assigned to the case. On August 6, 2009, the new adoptions social worker contacted R.A. to introduce herself. R.A. seemed angry that a new adoptions social worker had been assigned and refused to talk to the worker. The social worker called R.A. and left a message asking him to live scan and to complete the adoption application. R.A. thereafter told the social worker he had completed some of the adoption papers, he would bring them to the office and that he planned to live scan.

The juvenile court continued the permanency planning hearing and a social report prepared for December 4, 2009, indicated the adoptions social worker anticipated the home study would be approved within two weeks and recommended that parental rights be terminated. The social worker noted J.V. appeared to have a strong bond with R.A. and his siblings and that R.A. reported having a father-son relationship with J.V. for approximately 10 years.

The juvenile court continued the matter for proof of publication with respect to J.V.’s biological father.

A social report prepared for February 25, 2010, indicated J.V. visited mother over the holidays and reported the visit was “okay and he wouldn’t mind visiting with mother on occasions.” J.V. stated he wanted to live with R.A. and continues to state he does not ever want to live with mother. The Department recommended monitored visits and requested the Department be granted discretion to allow visits with mother.

The juvenile court continued the permanency planning hearing to July 2, 2010. On that date, the juvenile court denied a request by mother to order the Department to assist in arranging “some sort of visitation after the case closes....” The juvenile court found, by clear and convincing evidence, that J.V. was likely to be adopted and that no exceptions to adoption applied. The juvenile court terminated parental rights, designated R.A. as J.V.’s prospective adoptive parent and ordered the Department to provide adoptive planning and placement.

CONTENTIONS

Mother contends the juvenile court failed adequately to explore J.V.’s understanding and attitude toward adoption before terminating mother’s parental rights. (§§ 366.26, subds. (c)(1)(B)(ii), (h).)

DISCUSSION

1. Relevant statutory provisions.

Section 366.26, subdivision (c)(1) requires the juvenile court to terminate parental rights and order a child placed for adoption if it determines, by clear and convincing evidence, it is likely the child will be adopted. The statute permits several exceptions. As relevant here, section 366.26, subdivision (c)(1)(B) provides that termination of parental rights may be avoided where the juvenile court “finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:... (ii) A child 12 years of age or older objects to termination of parental rights.” (§ 366.26, subd. (c)(1)(B)(ii).)

Section 366.26, subdivision (h)(1) provides: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.”

2. Mother’s arguments.

Mother concedes J.V. wanted to be adopted by R.A. for most of the dependency proceedings. However, after a visit with mother in December of 2009, J.V. no longer stated he did not wish to see mother but indicated the visit had been “okay” and he would not object to occasional contact with mother. Mother contends, based on this change in J.V.’s attitude, the juvenile court was required to explore J.V.’s feelings toward mother before terminating parental rights. Mother notes that, because J.V. was over the age of 12 years, he could have objected to adoption under section 366.26, subdivision (c)(1)(B)(ii). Further, section 366.26, subdivision (h)(1), which requires the juvenile court to consider the wishes of the child and act in the best interest of the child, has been construed to require the juvenile court to receive direct evidence of the child’s wishes regarding termination of parental rights and adoption at the permanency planning hearing. (In re Diane G. (1992) 10 Cal.App.4th 1468, 1480.) Mother argues the change in J.V.’s attitude created an ambivalence the juvenile court was required to explore and, without current information about J.V.’s attitude towards mother, the juvenile court erred in terminating mother’s parental rights.

Additionally, J.V. was situated differently than his siblings in that mother had the right to visit C.A. and K.A. but, after termination of mother’s parental rights, mother will be able to visit J.V. only if R.A. permits it. Mother fears this could have an isolating and detrimental effect on J.V. Mother asserts the juvenile court should have made sure J.V. understood this consequence of adoption prior to terminating parental rights.

Further, according to mother, the record suggested R.A. adversely was influencing J.V.’s attitude toward mother. Mother notes that in May of 2009, R.A. began to miss appointments with the Department, he did not communicate with the social worker and he became frustrated that he was assigned a new social worker. R.A. did not believe he should have to comply with the home study requirement and he told the social worker he wanted the Department out of his life. Also, R.A. told the social worker J.V. “[did] not want to speak to any [social] workers.” Mother claims this conduct gives rise to a concern that J.V. may not have felt free to express his desire to continue to have contact with mother.

Mother concludes the termination of parental rights must be reversed because the juvenile court failed to explore J.V.’s feelings regarding mother and failed to establish that J.V. understood the implications of termination of parental rights and adoption.

3. No error appears in the termination of mother’s parental rights.

DianaG., the case cited by mother, held the provision found in current section 366.26, subdivision (h) “require[s] the juvenile court to receive direct evidence of the children’s wishes regarding termination and adoption at the permanency planning hearing” and “[a]lthough a child’s presence in court is not required, an out-of-court statement, as in a report or other form, must reflect the fact that the child is aware that the proceeding involves the termination of parental rights.” (In re DianaG., supra, 10 Cal.App.4th at p. 1480.)

Subsequent cases have concluded the statute does not require direct evidence of the child’s wishes, noting it is not always possible or in the minor’s best interest to obtain such a statement. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) Rather, the juvenile court may draw reasonable inferences about a child’s wishes from any available evidentiary source. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) “ ‘What the court must strive to do is “to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements.... [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” ’ [Citations.]” (In re Julian L. (1998) 67 Cal.App.4th 204, 208-209.)

Here, the record establishes that, from the outset of the case, J.V. wished to live with R.A., who had been a father figure in his life for approximately 10 years, and he did not wish to live with mother. When mother had unmonitored visitation with the children, she failed to pick the children up on time and she exposed them to her male companion and a maternal uncle who was a registered sex offender. Also, mother failed to protect the children from physical abuse at the hands of maternal grandmother and maternal uncle. In October of 2008, J.V. wrote a letter stating he no longer wished to have contact with mother and expressed the opinion that further visitation with mother would be harmful to himself and his siblings. As a result, the juvenile court ordered mother’s visitation to be monitored and to occur only in a therapeutic setting. When J.V. was determined not to need therapy, mother was granted monitored visitation. However, J.V. continued to indicate he did not wish to see mother or speak to her on the telephone. When the juvenile court terminated mother’s family reunification services on April 30, 2009, J.V.’s counsel advised the juvenile court that, although the Department was recommending legal guardianship, J.V. wished to be adopted.

Thus, the record is replete with direct evidence, in the form of J.V.’s oral statements included in the social reports and his written statement in October of 2008, that he wished to have no contact with mother.

Additionally, on April 30, 2009, J.V.’s counsel advised the juvenile court that J.V. preferred adoption over legal guardianship. A court-appointed attorney in a dependency proceeding fulfills the same function as a guardian ad litem. (In re Charles T. (2002) 102 Cal.App.4th 869, 878.) Attorneys so appointed are required by statute to advocate for the protection and safety of the child, including advising the court of the child’s wishes. (§ 317, subds. (c), (e).) Thus, the statement by J.V.’s counsel is a reliable indication of the child’s wishes. Mother points out that, at the time of the permanency planning hearing, J.V.’s counsel merely submitted the matter without argument. However, nothing in this circumstance overrides counsel’s previous express statement that J.V. preferred adoption over legal guardianship.

Further, although J.V.’s position with respect to visitation with mother became less adamant after a visit in December of 2009, even then J.V. stated only that he would not object to occasional contact with mother. Given that mother continues to have monitored visitation with J.V.’s siblings, J.V. undoubtedly will continue to have some contact with mother and there is no indication in the record that, if J.V. wished to visit mother, R.A. would prevent it.

Moreover, contrary to mother’s assertion, the record does not suggest that R.A. sought to undermine J.V.’s relationship with mother, that R.A. had intimidated J.V. to dissuade him from expressing his true feelings with respect to mother, or that R.A. was reluctant to comply with demands made upon him by the Department. R.A. completed a 25-week program with the children and there was no indication he was not amenable to mother’s visitation with C.A. and K.A. R.A. understandably was frustrated with the Department’s continued involvement in his life and the lives of the children. R.A.’s statement to the adoptions social worker that J.V. was tired of the dependency proceedings and did not wish to speak to any social workers was likely true, given the disruption the proceedings had caused in his life. However, none of these factors indicates R.A. was attempting to derail mother’s relationship with J.V. or that J.V. did not understand the ramifications of adoption versus legal guardianship.

Finally, there is no evidence indicating J.V. objected to adoption or that this objection provided a compelling reason to conclude adoption would be detriment to J.V. (§ 366.26, subd. (c)(1)(B)(ii).) On the contrary, the record demonstrates J.V. wanted to be adopted and that he preferred adoption over legal guardianship.

In sum, we conclude the juvenile court complied with the relevant statutory directives and committed no reversible error in terminating mother’s parental rights with respect to J.V.

DISPOSITION

The order terminating parental rights with respect to J.V. is affirmed.

We concur: CROSKEY, J., ALDRICH, J.


Summaries of

In re J.V.

California Court of Appeals, Second District, Third Division
Feb 10, 2011
No. B225598 (Cal. Ct. App. Feb. 10, 2011)
Case details for

In re J.V.

Case Details

Full title:In re J.V., a Person Coming Under the Juvenile Court Law. v. E.R.…

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

Date published: Feb 10, 2011

Citations

No. B225598 (Cal. Ct. App. Feb. 10, 2011)