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In re Michael

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A101181 (Cal. Ct. App. Nov. 21, 2003)

Opinion

A101181.

11-21-2003

In re MICHAEL H., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Petitioner and Respondent, v. ANGEL H., Defendant and Appellant.


Angel H. (Mother) appeals from a judgment terminating her parental rights as to Michael H. pursuant to Welfare and Institutions Code section 366.26. She contends the court erred in finding Michael was adoptable and that the judgment should be reversed because the Alameda County Social Services Agency (the Agency) improperly thwarted visitation during the proceedings. We affirm.

All statutory citations are to the Welfare and Institutions Code unless otherwise indicated.

Mother also filed a petition for writ of habeas corpus related to these proceedings (A103939), which we deny this day by separate order.

Background

The Agency filed a petition on January 24, 2000, alleging that four-year-old Michael, born in 1995, came within section 300, subdivision (b) because of Mothers neglect. The petition alleged the home was unfit due to overcrowding, inadequate heat, dog feces on the floor, clothes piled four feet high, and dogs, cats, and birds around the premises. Mother had a pattern of leaving Michael and his two younger half-siblings with strangers. When the children were placed into protective custody, Mother waited a week before calling to inquire about them. Mother admitted she could not prevent Ahmed A., Michaels stepfather (the half-siblings father) and a paternal uncle (Francios A.) from hitting Michael in an abusive way. She also admitted that domestic violence occurred between her and Ahmed. The petition further alleged that Michael came within section 300, subdivision (d) in that he was sexually abused by Mothers adult male friend, Austin A. Finally, the petition alleged that Michael came within section 300, subdivision (g) in that he had been left without provision for support by his father, whose identity was unknown.

Mother later identified Alvaro B. as Michaels biological father.

The detention hearing report provided further details in support of the allegations, including the following. The condition of the home included dog feces under Michaels bed and on the floor near clothing. The home was crowded with various adults living there and going in and out, as well as animals including a pit bull and Rottweiler. Michael was abusively disciplined by his stepfather. Michael was also sexually molested by Austin A., who resided with Mother and baby-sat the children. Michael reported that Austin A. also touched his two-year-old brother on the buttocks. The report stated Mother was unable to stop the physical abuse by the stepfather. Michael had medical problems including seizures for which he took medication. Mother was in the process of being evicted from her residence.

On January 25, 2000, the court ordered removal of Michael. At an uncontested hearing on February 15, 2000, the court continued the matter to March 17, 2000. In a report the Agency had prepared for the February 15 jurisdiction-disposition hearing, the Agency stated the stepfather denied abusing Michael or Mother. He and Mother were getting a divorce, and he lived with his brother. The stepfather wanted custody of his two children (the siblings) but not of Michael. On February 2, Mother had told the social worker that she had cleaned her home, but an unannounced visit found the place in "deplorable" condition. Mother was awaiting trial on the eviction, still had people living with her, and was described by the social worker as an emotional wreck.

Michael was doing well in foster care. He denied that stepfather had hit or hurt him but said his mother had smacked him and sent him to his room. After a phone call with Mother on February 8, Michael acted out. The Agency established a case plan for the family.

An interim report prepared for the March 17, 2000 hearing recommended a 30-day continuance for further assessment of placing the siblings with their father, and that Michael remain in out-of-home placement during that time. The children were doing remarkably well. The stepfather had visited consistently, but Mother had not. On February 24, she was an hour late and stated she could not get a ride from work. On March 2, she was 40 minutes late, and when her visit was therefore short, she blamed the social worker. On March 9, she did not call or appear for her visit. On March 17, 2000, the court continued the matter to April 14 for a jurisdiction hearing.

An interim report prepared for the April 14 hearing described Mothers weekly visits as problematic because Mother continued to bait and manipulate Michaels emotions to support her needs. Without permission Mother brought a man (Timothy G.) to a visit and told Michael that Timothy G. was his father. Mother also created a scene with the foster parents and the children in the parking lot.

On March 24, 2000, Mother was arrested and sent to Santa Rita Jail on charges which included forging a drivers license identification card and receiving stolen property. She tested positive that day for amphetamines. She was subsequently placed on court probation. Mother did not attend any of the therapy sessions to which she had agreed.

The social worker recommended removal of Michael from the custody of Mother, no reunification services for the alleged father (Timothy G.) unless he proved a legal basis for it, and services for Michael and Mother to facilitate reunification within 12 months. At the jurisdiction hearing on April 14, 2000, the court found the allegations of the petition true and that reasonable services had been offered or provided. The court adjudged Michael a dependent child of the court, committed him to the care, custody and control of the Agency, ordered a paternity test, and continued the matter to October 6, 2000. That hearing was continued to October 27 at the request of the social worker because she was in the process of contacting the paternal great-grandmother and maternal grandmother to obtain information regarding their interest in legal guardianship of Michael.

The status review report prepared for the October 27 hearing recommended that Michael remain a dependent of the court and that reunification services continue for Michael and Mother. Mother was not in compliance with her case plan. She had not yet kept an appointment with a therapist. She had not drug tested as requested. She had been evicted from her apartment and was fired from a waitress job for stealing a coworkers purse. The Agency had provided shelter resources for Mother, attempted to have an identification card issued to her so she could drug test, provided bus passes and tickets for her, and referred her to mental health services.

According to the report, Mother had been arrested again and spent a week in Santa Rita Jail. Visits were not continued because Mother had not been in contact with the social worker, who had no way of contacting her because she had become very transient. However, Mother had been in contact with Michael by telephone in his foster home. But she did not contact him during the month of August, stating she had lost his phone number.

Michael was in good health and was developing on target, although he continued to take medication for seizures. Although very smart, he was socially and emotionally immature. Continued foster care was deemed appropriate. Mother would not be capable of reunifying for "quite a long period of time" because of her lack of housing, substance abuse issues, pregnancy, and mental health issues.

In a status review report prepared for a hearing on April 6, 2001, the Agency recommended legal guardianship for Michael with his maternal grandmother and setting a section 366.26 hearing (hereafter a .26 hearing). Mother was said to be in agreement with this recommendation.

Mother filed a section 388 petition on July 6, 2001, seeking placement of all her children with her under Family Maintenance orders. The matter was continued at Michaels counsels request to July 27, 2001. The addendum memorandum prepared by the Agency for that hearing recommended that Michael be placed permanently under the legal guardianship of his maternal grandmother in Maryland. Mother had obtained housing and a job but had failed to comply with the requirements of her case plan that she participate in parenting classes and counseling, that she complete a psychological evaluation, and that she take part in a substance abuse program. A report from Koinonia Foster Homes dated June 15 stated that Michaels foster parents were willing to adopt him should the opportunity be presented. At the hearing Mother withdrew her section 388 petition. The court granted her six months of services and ordered her to comply with the case plan. The matter was subsequently continued to February 20, 2002.

On January 8, 2002, the social worker met with Elsie Rutland and supervisor Nicole Souza regarding the adoption assessment for Michael. They recommended that Michael be adopted by his foster parents.

The status review report prepared for the February 20 hearing recommended terminating reunification services for Mother and permanent planning of adoption for Michael. The report stated that Mother was not compliant with her case plan. Although she did obtain housing and refrained from abusing drugs, she never resumed counseling after the birth of her fourth child and she never enrolled in parenting classes. She had not been consistent in visiting Michael allegedly due to her emotional state over the death of her niece, who had been beaten to death in her presence by her brother-in-law. She cancelled a critical psychological evaluation three times, and continued to file false child abuse accusations against the stepfather. The Agency deemed the psychological evaluation critical because Mother is predisposed for mental illness, her father being a paranoid schizophrenic, and it was difficult for the Agency to know when Mother was telling the truth or when she was in a delusional thought process.

The report reflected that the maternal grandmother was no longer willing to become Michaels guardian because she was caring for two other grandchildren. Michael was now taking Ritalin and Depakote, the latter for seizures, and he was developing on target. He was doing satisfactory work in first grade and according to his teacher was a very enthusiastic and lively member of the class. He was doing better at home since his medication was adjusted and he did not have family visits with Mother, which always caused him to regress. Michael seemed happy and content in the foster home, where he was adored by the foster parents. He expressed a wish to stay with the foster parents.

At the conclusion of the February 20 hearing, the court found that the Agency had not provided reasonable services and had not complied with the case plan, apparently because of some visitation problems. The court ordered a psychological evaluation for Mother, a new social worker assigned to the case, visitation twice a month, and phone calls twice a week. It set a permanent planning hearing.

On July 10, the Agency requested a continuance to correct recommendations in the current report to reflect termination of reunification services and setting a .26 hearing with adoption as the permanent plan. At the same time Mothers attorney requested a continuance for a bonding study. The Agency objected to the bonding study because Mother already had 18 months of services. Her attorney did not object to setting the .26 hearing but said he would probably file a section 388 petition to be heard after the .26 hearing. He stressed the importance of the bonding study to determine the relationship between Mother and Michael. Michaels attorney agreed. The court reluctantly agreed because it was "better to err on the side of caution." But it reduced visits, which were not going well, to one a month, with continuation of phone calls. On July 25, the bonding study had not begun, and the matter was continued to August 15, 2002, and then to August 29, 2002.

On August 29, the court found that the Agency had complied with the case plan and offered reasonable services. Mothers counsel did not object to setting a .26 hearing, stating he did not want to stall waiting for the bonding study, and the study could be considered at the .26 hearing, which the court set for December 6. Counsel did not seek writ review under California Rules of Court, rule 39.1B of the order setting the section 366.26 hearing. Mothers counsel attempted to file a section 388 petition on September 23, 2002, but it was rejected by the court due to lack of proof of service. Counsel refiled it on November 6. Mothers grounds for seeking modification were that she was drug- and alcohol-free, she attempted to visit Michael on a regular basis but was thwarted by the foster mother, she enrolled in anger management and domestic violence programs, and she was on a waiting list for a parenting program. The court denied the petition.

The report prepared for the .26 hearing stated that the foster parents reported Mothers calls were inconsistent and Michael did not care whether he talked with Mother or not. In-person visits had also been inconsistent. Mother visited on two occasions but arrived late and usually spent time talking with the social worker instead of Michael, who played with his brothers. Michael was doing well in second grade. His therapist reported he appeared happy and well adjusted in his foster home. The foster parents were willing to adopt Michael.

A report from Koinonia Foster Homes dated September 16, 2002, was appended to the report prepared for the .26 hearing. The foster mother reported that Michael had pulled down his pants and shown himself to one of the other two foster boys (aged 12 and 13) living in the home. On one occasion he had walked around in front of the other boys wearing only a shirt. The foster parents were monitoring Michaels behavior hoping to end the acting out. There was no indication that these episodes had any negative impact on the foster parents willingness or desire to adopt Michael.

A home study was completed and the family was approved for adoption. Michael, now age 7, stated he wanted to be adopted and to keep living with the foster parents. The Agency recommended a finding that Michael is likely to be adopted and termination of parental rights.

At the .26 hearing on December 6, 2002, Mothers counsel stated that "part" of a bonding study was completed. The Agencys attorney explained Mother had missed three appointments, causing a 30-day delay in the study. The psychological evaluation of Michael was complete, but the Agency was not relying on it or offering it in evidence. Mothers counsel stated he needed a continuance to evaluate the psychological study and to complete the bonding study, including Mothers psychological evaluation. Michaels attorney noted that these studies had been ordered 6 months ago. The court denied the motion for continuance because the Agency had done all that was required of it and Mother had failed to fulfill what was required of her.

Social worker Mia Buckner-Preston had been assigned to the case in March 2002. She testified that a psychological evaluation was done on Michael on September 6, 2002 as part of a bonding study, and was provided to counsel the day of the hearing.

According to the social worker, Mother was permitted to call Michael at the foster home three times a week, which she said she attempted to do, but the foster parents reported that her calls had been inconsistent. Mother was permitted one visit a month but had visited Michael twice in the last four months, once in August and once in October. Michael wanted to be adopted by the foster parents. He had earlier said he wanted to live with his brothers and Mother (who were not living together).

The social worker participated in an adoption assessment which was performed on July 23, 2002. The social worker testified that during the assessment there were no concerns—medical, developmental, or emotional—which would indicate Michael was not adoptable. The foster parents were not deterred by the fact Michael was taking medication, nor by the reasons the medication was required.

Mother testified that she attempted to call Michael three times a week but was thwarted in various ways such as being told he was not there, no one answering the phone, or it being busy. The two months without a visit were due to problems with the social worker not arranging transportation. Mother believed that the foster parents interfered with her telephone contact and monthly visits.

The social worker testified in rebuttal that the reason for the lack of a November visit was due to the fact that Mother was incarcerated. A September visit did not occur because the social worker was unable to fit it into everyones schedule, including Michaels school schedule.

The Agency argued, based on the social workers testimony, that it had met its burden in establishing Michael was adoptable, with no evidence to the contrary. (§ 366.26, subd. (c)(1).) Mother had not shown that a mother-child relationship existed which if severed would be detrimental to Michael. (§ 366.26, subd. (c)(1)(A).)

Counsel for Michael, in accordance with his statutory duty (§ 317, subd. (e)), informed the court of his wishes—that he wished to be adopted, to change his name, and to have contact with his brothers and his mother. Counsel stated it would have been preferable to have a bonding study, but in light of the evidence, he asked the court to adopt the Agencys recommendation.

Mothers attorney argued that she had cooperated with the Agency in attempting to schedule visits. Also, she had not been incarcerated for the whole month of November, yet no one tried to arrange a visit.

The court looked at the entire history of the case and found that the requirement of regular visitation by Mother had not been met. The court accepted the social workers testimony that she usually had no difficulty in contacting the foster parents, and contrasted it with Mothers testimony that she was virtually never able to get in touch with them. The court further found that the evidence did not establish a beneficial relationship such that severance of it would be detrimental to Michael.

The court found by clear and convincing evidence that Michael was adoptable and there were no medical, emotional, or psychological issues which would preclude his adoption. Having made appropriate findings, the court terminated Mothers parental rights. In accordance with Michaels wishes and his counsels request, the court ordered sibling visits at least every three weeks. This timely appeal followed.

The court also terminated the parental rights of the alleged father, Alvaro B. He is not a party to these proceedings.

Discussion

Substantial Evidence of Adoptability

Mother contends there was insufficient evidence to support the finding that Michael was adoptable because the adoption assessment was not made part of the record and it did not take into account what she characterizes as Michaels subsequent sexualized behavior. Although Mother did not raise this issue below, a claim of insufficient evidence of adoptability at a contested hearing was not waived by her failure to object. (In re Brian P. (2002) 99 Cal.App.4th 616, 622—623 (Brian P. ).)

Mother proposes that because the adoption assessment was not made part of the record, "the social workers statement of Michaels adoptability was unsupported by any factual basis," citing Brian P., supra, 99 Cal.App.4th 616. Her theory is logically unsound and is not supported by the record before us which distinguishes this case from that in Brian P. In that case, Division Three of this court explained, "The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (Id. at p. 624.) The court there found such evidence "sorely lacking" since there was no adoption assessment and no testimony or other evidence that the child was likely to be adopted. There was only the social workers bare statement without any supporting facts, that in her opinion the chances of adoption were "very good." (Ibid. )

The case before us is distinguishable from Brian P. in every respect. Here, there was an adoption assessment and there was evidence that Michael was likely to be adopted. We do not have a bare statement without supporting facts, but rather the social worker, who participated in an adoption assessment, testified that during the assessment there were no concerns—medical, developmental, or emotional—which would indicate Michael was not adoptable. She also testified the foster parents were not deterred by the fact of Michaels need for medication or by the reasons for that need.

Applying our standard of review which indulges all reasonable inferences in favor of the findings below (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728), we hold that this and other evidence before the trial court not only satisfied the statutory requirements for an adoption assessment (§§ 366.21, subd. (i); 366.22, subd. (b)), but also provided sufficient clear and convincing evidence to support the trial courts finding.

Mother suggests that Michaels behaviors (pulling down his pants) which had emerged after the adoption assessment rendered the adoptability finding invalid. We do not agree. The fact that a prospective adoptive family is interested in adopting a child is usually evidence that the childs age, physical condition, mental state, and other matters are not likely to dissuade people from adopting the child. (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) The section 366.26 report filed on December 3, 2002 revealed that Michael had resided with the foster parents since June 2000. A home study approved the family for adoption. The couple had been married for 35 years and had three adult children. The foster father worked outside the home, and the foster mother worked in the home and was a stay-at-home mother. They are "loving caretakers and want to provide the minor with enriching opportunities. They would really like to adopt the minor and are pleased that he would like to become a part of their family."

The foster parents had "demonstrated an on-going ability to meet Michaels physical and emotional needs," including dealing with his acting out. Michael referred to the foster parents as his father and mother and said he loved them very much, would like to be adopted by them, and would like to keep living with them.

The facts presented in the record before us distinguish this case from those upon which Mother relies. The courts finding by clear and convincing evidence of adoptability of Michael despite certain behavioral problems was supported by the evidence and will not be disturbed on appeal.

Visitation

Mother acknowledges that once reunification services were terminated, Michaels interest in permanency and stability weighed more heavily than her interest in maintaining her relationship with him. She further recognizes under section 366.26 that the court was required to terminate her parental rights and place Michael for adoption unless she met the burden of showing that she maintained "regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26 subd. (c)(1)(A).) Mother failed to visit and contact Michael regularly, which she impliedly admits when she cites selected portions of the record. But Mother places the blame for her failure on the foster parents and the social worker, claiming both improperly thwarted visitation.

In particular, Mother states that she regularly visited Michael before the setting of the section 366.26 hearing, that thereafter the foster parents became unwilling to allow contact, and that the Agency took no steps to ameliorate the problem. In support of her claims, Mother cites her own self-serving testimony at the hearing. As stated above, she testified that she attempted to have contact with Michael on a regular basis. Sometimes the foster father would tell Michael to hang up or the foster mother would say Michael was not there. Sometimes the phone was busy and Mother was told later that someone was on the computer; other times there would be no answer.

The trial court was not required to believe Mothers testimony, particularly in light of the abundance of evidence to the contrary which we set out in some detail above. It will be recalled, for example, that the March 17, 2000 report stated that Mother had visited inconsistently and appeared for visits late or not at all. In the October 27, 2000 report it appeared that visits were not continued because Mother had not been in contact with the social worker, who had no way of contacting her because she had become very transient. However, Mother had been in contact with Michael by telephone in his foster home. But she did not contact him during the month of August, stating she had lost his phone number.

The report prepared for the .26 hearing stated that the foster parents reported Mothers calls were inconsistent and Michael did not care whether he talked with Mother or not. In-person visits had also been inconsistent. Mother visited on two occasions but arrived late and usually spent time talking with the social worker instead of Michael, who played with his brothers.

The social worker testified at the .26 hearing that Mother was permitted to call Michael at the foster home three times a week, which she said she attempted to do, but the foster parents reported that her calls had been inconsistent. She was permitted one visit a month but had visited Michael twice in the last four months, once in August and once in October. The fact that a September visit did not occur because the social worker had difficulty fitting it into everyones schedule or that the November visit was rendered impossible by factors in addition to Mothers incarceration did not compel the court to accept Mothers testimony that interference and neglect by the Agency and the foster parents occurred and excused her lack of consistent visits and her failure to meet her burden of proof under section 366.26, subdivision (c)(1)(A).

"In reviewing the reasonableness of the services provided, this court must view the evidence in a light most favorable to the respondent. We must indulge in all legitimate and reasonable inferences to uphold the verdict. [Where, as here,] there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed." (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)

Continuance

Mother assigns as error the trial courts denial of a continuance for her to complete the bonding study. The initial section 300 petition had been filed in January 2000. At the time the . 26 hearing commenced in December 2002, Mother had nearly three years to reunify with Michael. She had delayed participating in the bonding study for months.

The requirement that the department provide reunification services to the parent "is not a requirement that a social worker take the parent by the hand and escort . . . her to and through classes or counseling sessions. A parent whose children have been adjudged dependents of the juvenile court is on notice of the conduct requiring such state intervention. If such a parent in no way seeks to correct . . . her own behavior or waits until the impetus of an impending court hearing to attempt to do so, the legislative purpose of providing safe and stable environments for children is not served by forcing the juvenile court to go `on hold while the parent makes another stab at compliance." (In re Michael S. (1987) 188 Cal.App.3d 1448, 1463, fn. 5.)

We find no abuse of discretion in denial of a continuance.

The judgment is affirmed.

We concur, Marchiano, P.J., Swager, J.


Summaries of

In re Michael

Court of Appeals of California, First Appellate District, Division One.
Nov 21, 2003
No. A101181 (Cal. Ct. App. Nov. 21, 2003)
Case details for

In re Michael

Case Details

Full title:In re MICHAEL H., a Person Coming Under the Juvenile Court Law. ALAMEDA…

Court:Court of Appeals of California, First Appellate District, Division One.

Date published: Nov 21, 2003

Citations

No. A101181 (Cal. Ct. App. Nov. 21, 2003)