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In re R. T.

Court of Appeals of California, Fifth District.
Nov 12, 2003
No. F043211 (Cal. Ct. App. Nov. 12, 2003)

Opinion

F043211.

11-12-2003

In re R. T., A Person Coming Under the Juvenile Court Law. KINGS COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. RENEA R., Defendant and Appellant.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Defendant and Appellant. Denis A. Eymil, County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent. Kings County Minors Advocate Office and Pat Belter, for minor, Real Party In Interest.


OPINION

THE COURT

Before Buckley, Acting P.J., Levy, J., and Cornell, J.

Renae R. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, R.T. She urges this court to reverse the termination order because respondent Kings County Department of Human Services (the department) did not submit a statutorily-sufficient assessment for the section 366.26 hearing and did not facilitate visitation with her son for a six-month period pending the section 366.26 hearing. On review, we will affirm.

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

PROCEDURAL AND FACTUAL HISTORY

In December 2000, R.T. was born drug-exposed and premature at 28 weeks gestation. He suffered withdrawal symptoms and respiratory problems and had an underdeveloped lower body. In turn, the department initiated these dependency proceedings alleging appellants substance abuse rendered her incapable of providing appropriate care for R.T. (§ 300, subd. (b)).

Upon her release from the hospital after giving birth to R.T., appellant was arrested on a probation violation for using cocaine while pregnant. For virtually all of these proceedings, she would remain incarcerated. She was released after a six-month term for her probation violation only to be rearrested within days for driving under influence and causing injury. She was released from the womens facility in Chowchilla shortly before the ultimate termination hearing.

Meanwhile, in April 2001, the Kings County Superior Court adjudged R.T. a dependent child of the court and removed him from appellants custody. Despite lengthy reunification services, appellant could not reunify in part because her incarceration would extend past the maximum 18 months allowed for reunification (& sect; 361.5, subd (a)).

Consequently, in July 2003, the court terminated reunification services for appellant and set a section 366.26 hearing for a November date to select and implement a permanent plan for R.T. The court did continue, however, a prior order for supervised monthly visits between appellant and the child.

In anticipation of the section 366.26 hearing, the department submitted an assessment prepared by an adoption specialist with the California Department of Social Services (CDSS). According to the assessment, R.T. was adoptable based on his young age, physical and emotional health, lack of any developmental delay and his single placement since detention. However, the department recommended a delay in terminating parental rights because it or CDSS was in the process of identifying a prospective adoptive family for R.T.

The court was unable to proceed on the matter in November because appellant had not been transported to court and there was insufficient notice to R.T.s father. On the continued hearing date in late January 2003, the court granted another continuance, this time at the fathers request. During that hearing, counsel for appellant advised the court that her client was not receiving visits with R.T. The court directed the department to provide appellant with a visit between then and the further hearing date set in March. At the March hearing, the court granted yet another continuance so that counsel for appellant could interview the adoption specialist and R.T.s foster family, whom CDSS identified as the prospective adoptive parents, about their circumstances and decision to adopt R.T.

The court eventually conducted the section 366.26 hearing in April 2003. At that hearing, the department offered the testimony of the adoption specialist in addition to her previous written assessment on R.T.s adoptability. Counsel for appellant cross-examined the specialist as well as called R.T.s current social worker as a witness. Following the evidentiary hearing and closing argument, the court found R.T. adoptable and terminated parental rights.

DISCUSSION

I. The Departments Assessment

At a 12-month review hearing, as in this case, when a juvenile court orders a hearing pursuant to section 366.26, it must direct the agency supervising the minor to prepare an adoption assessment. (§ 366.21, subd. (i); see also § 361.5, subd. (g) & § 366.22, subd. (b).) This assessment provides the information necessary for the juvenile court to determine the likelihood of the dependent childs adoptability (§ 366.26, subd. (c)(1)). The report shall include:

"(1) Current search efforts for an absent parent or parents.

"(2) A review of the amount of and nature of any contact between the minor and his or her parents . . . .

"(3) An evaluation of the minors medical, developmental, scholastic, mental, and emotional status.

"(4) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the minors needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship.

"(5) The relationship of the minor to any identified prospective adoptive parent or guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the minor concerning placement and the adoption or guardianship, unless the minors age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.

"(6) An analysis of the likelihood that the minor will be adopted if parental rights are terminated." (§ 366.21, subd. (i); see also § 361.5, subd. (g) & § 366.22, subd. (b).)

In this case, the department relied on CDSS to submit the requisite assessment, one that the state prepared in October 2002 before the originally scheduled section 366.26 hearing. Although the hearing did not occur until April 2003, neither the department nor the state prepared any kind of update.

In relevant part to this appeal, the CDSSs "review of the amount of and nature of any contact between the [minor] and [appellant]" (§ 366.21, subd. (i)(2)) consisted of the following:

"The minor has had infrequent visitation with his birth parents. The birth mother was incarcerated after the minors birth and provided with reunification services until her release from prison in June 2001. Approximately six days after the birth mother was released from prison, she violated her parole by driving a car under the influence of a drug or alcohol and was involved in a car accident. She was arrested and subsequently remanded back to prison where she remains.

"According to case records, the Kings County Department of Health and Human Services Agency transported and supervised visitations between the birth mother and the minor at both at the Kings County Jail and at the Chowchilla Womens Prison on 10/19/01, 03/18/02 and on 06/20/02.

"Reunification services were terminated on 07/11/02 and visitations between the birth mother and minor were discontinued."

In addition, because there was no identified prospective adoptive parent for R.T. as of October 2002, there was neither any preliminary assessment of the eligibility and commitment of any prospective adoptive parent (§ 366.21, subd. (i)(4)) nor any information regarding an existing relationship between the child and any prospective adoptive parent and the motivation for adoption (§ 366.21,subd. (i)(5)).

At the section 366.26 hearing, the adoption specialist testified two sets of prospective adoptive parents for R.T. had been identified. One of those prospective adoptive families was R.T.s foster family. The other was a family that CDSS had approved for adoption. The department offered no further details about the prospective adoptive parents.

On cross-examination, the specialist added that a child assessment with background information, including R.T.s medical history, was provided to the social worker who represented the family approved by the state. Further, the specialist complied with the requirements of her office in order to make available information to the prospective adoptive parents. Counsel for appellant did not question the social worker about any details regarding either R.Ts caregivers or the family approved by the state.

On the issue of visitation, counsel for appellant elicited from the specialist that monthly visitation resumed in February 2003. Having not supervised any visitation, however, the specialist could not testify about it. The specialist also testified that she was unaware when she prepared the October 2002 assessment that the court had ordered monthly visitation in July 2002 when it terminated reunification services.

Appellant criticizes both the states assessment and the specialists testimony regarding "the amount of and nature of any contact" between her and R.T. as incomplete and to some extent inaccurate. She first complains the assessment did not include mandatory information on the nature of R.T.s interaction with appellant and misrepresented the court ended visitation in July 2002. She also argues the specialist, according to her testimony, remained unaware of the mothers recent monthly visits and could not testify regarding the nature of the bond between appellant and R.T. but nevertheless believed there was no parent-child bond.

The assessment was inaccurate in purporting that the court discontinued visitation in July 2002. However, the record reveals the court was well aware that it had not done so and there had been no visitation starting in August 2002 until February 2003. Also, an update of the assessment clarifying the mistake and reviewing the most recent contact would have been appropriate. Nevertheless, the assessment did disclose there had been few visits between R.T. and appellant since his removal shortly after birth and what few visits occurred were in a jail or prison setting. We agree that more information than not is generally beneficial to a court in its decision-making. However, we remind appellant that we do not read the statutory requirement that the department or the state "review the amount of and nature of any [parent-child] contact" as a direction to go beyond a general description of the post-placement contacts between the parent and child. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)

Appellant also challenges the lack of evidence about the prospective adoptive parents, noting that the department or CDSS was charged with assessing any identified prospective adoptive parents eligibility and commitment to "include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the minors needs, and the understanding of the legal and financial rights and responsibilities of adoption . . . ." (§ 366.21, subd. (i)(4).)

Citing In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, appellant argues that without such information, the juvenile court could not properly find R.T. was likely to be adopted. She accuses the court of rubberstamping the adoption specialists conclusion without evidence to support it.

Lost in appellants rhetoric is our dependency laws focus on the child. At a section 366.26 hearing, the court concentrates on the dependent childs adoptability, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary, that the minor already be in a potential adoptive home or that there be a proposed adoptive parent "waiting in the wings." (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)

Appellant also conveniently overlooks the fact that R.T.s age, physical health, and emotional state made him a good candidate for adoption. His developmental strides and placement in only one home throughout these proceedings — indeed since his birth — also spoke well of him and the likelihood of adoption. Admittedly, the state recommended continuing the original section 366.26 hearing in order to identify a prospective adoptive family. However, as the specialist testified, it was her personal preference to identify a prospective adoptive family before proceeding to termination, not any evidence that the child was difficult to place, which drove her decision not to initially seek a finding of adoptability and an order terminating parental rights.

Further, this was not a case, such as in In re Jerome D., supra, where an adoptability finding was based not on the childs attributes but rather on a single persons willingness to adopt. That individual however, in In re Jerome D., supra, had a history of domestic violence. Thus, it should come as no surprise that in the absence of a preliminary assessment, as outlined in section 366.21, subdivision (i)(4), or other evidence that there were approved families willing to adopt that the juvenile court could not properly find Jerome was likely to be adopted. (In re Jerome D., supra, 84 Cal.App.4th at pp. 1203 & 1205.)

We readily acknowledge the record is dumbfounding regarding the departments noncompliance with section 366.21, subdivision (i)(4) and (5). The specialist testified she knew of her statutory obligation to inform the court in this regard. However, neither did she prepare a supplemental report nor did the department elicit testimony from her addressing these points. Apparently either the specialist or the department believed it unnecessary although their rationale is by no means clear and we will not speculate.

Suffice it to say, in another case if a childs adoptability were not so certain we would be far less restrained in our criticism of the department. In this regard, we would agree with the court in In re Crystal J. (193) 12 Cal.App.4th 407, 413, that "[d]eficiencies in an assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a courts decision to terminate parental rights."

Nevertheless, we conclude having reviewed the entire record that the deficiencies in the departments written assessment and testimonial showing at the section 366.26 did not cast doubt on the courts finding of adoptability. Therefore, we conclude the court did not error in making its finding.

II. Visitation

In addition, appellant contends the department improperly limited her visits with R.T. As previously mentioned, in the six months following the July 2002 hearing, there were no visits despite the courts July 2002 order for continued once-a-month, supervised visitation pending the section 366.26 hearing. Visitation resumed after appellants trial counsel brought the matter to the courts attention at the hearing in late January 2003.

According to appellant, the social worker "ignored" the courts order. She also characterizes the lack of visits as blatant, arbitrary and obstructionist. She further argues the limitation of her visitation right assured she could not argue effectively against termination on grounds she maintained regular visitation and R.T. would benefit from a continued relationship. As discussed below, we are not persuaded by appellants contention.

There can be no doubt the department should have done a better job of complying with the courts order. However, this was not a case of bad faith on the departments part. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1164-1167 [the department must make a good faith effort in providing services to an incarcerated parent].) Certainly, the court did not accept appellants characterization of the departments omission. Further, there was nothing in the record to support a finding that the departments social workers purposely ignored the visitation order. The record actually tells us little. What we can glean from it shows oversight, but nothing more. A new social worker assigned to R.T.s case in October 2002 testified that at the time of her assignment, appellant was not receiving visits. The new social worker did not know why the visits were not happening. She admittedly did not take it upon herself to start the visits. Although the social worker testified at the section 366.26 hearing that she was aware of the courts visitation order, counsel for appellant made no effort to clarify when the social worker gained her awareness.

Meanwhile, appellant ignores the fact that the court issued its continued visitation order in July 2003 in her presence. Thus, she was aware of her continued right to visitation. However, she did not bring the departments lapse to the courts attention for six months. Indeed, there is no evidence that appellant ever questioned the department as each month passed about the lack of visitation. Having failed to look after her own legal rights for such a lengthy period, we conclude she is not in a position to complain about what she might have argued had she shared more visits with R.T. (See In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)

DISPOSITION

The order terminating parental rights is affirmed.


Summaries of

In re R. T.

Court of Appeals of California, Fifth District.
Nov 12, 2003
No. F043211 (Cal. Ct. App. Nov. 12, 2003)
Case details for

In re R. T.

Case Details

Full title:In re R. T., A Person Coming Under the Juvenile Court Law. KINGS COUNTY…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 12, 2003

Citations

No. F043211 (Cal. Ct. App. Nov. 12, 2003)