Opinion
B167320.
11-12-2003
In re TANYA F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MABEL V. and TYRONE F., Defendants and Appellants.
Steven D. Schatz, under appointment by the Court of Appeal, for Defendant and Appellant Mabel V. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Tyrone F. Lloyd W. Pellman, County Counsel, Sterling Honea, Deputy County Counsel, for Plaintiff and Respondent.
I. Introduction
Mabel V., the mother, and Tyrone F., the father, have separately appealed from an order terminating their parental rights to the child, Tanya F., pursuant to Welfare and Institutions Code section 366.26. The mother argues her due process rights were violated when the juvenile court appointed a guardian ad litem without a hearing. The father joins in the mothers argument and further claims the juvenile court committed reversible error in finding that the child, who has special needs, is likely to be adopted. We affirm.
II. background
In February 2002, the Los Angeles County Department of Children and Family Services (the "department") filed a section 300 petition on behalf the child who was six days old. The petition alleged that: the mother has mental and emotional problems and has been diagnosed with developmental delays; the mother has failed and refused to participate in and cooperate with Regional Center services provided to assist her with caring for her children; the father was unwilling and unable to provide the child with ongoing care, supervision, and the basic necessities of life; the childs physical and emotional health and safety were endangered by the fathers conduct and the mothers condition and failure to use available services; and, as a result, the mother was unable to care for the child. It was further alleged that: the childs sibling, two-year old, Arthur S., was currently a dependent child of the juvenile court due to the mothers inability to properly care for him. Arthur was also a dependent child because: the mother refused to use services available to her; the mother had failed to comply with juvenile court orders and to reunify with Arthur, who was receiving permanent placement services; and as a result of the mothers failure to reunify with Arthur, the department may seek an order pursuant to section 361.5 that no reunification services be provided.
The department reported that staff at Providence Saint Joseph Medical Center had contacted the department the day the child was born. The hospital reported that the mother arrived at the emergency room and gave birth to a 10 pound, 4 ounce baby. The mother admitted that she did not receive any prenatal care because she did not know that she was pregnant. The mother said she thought she had an infection. Mary Kincaid, a hospital social worker, indicated that the mothers statements caused concern about the childs safety. Ms. Kincaid was also concerned because the mother seemed unresponsive and had difficulty providing accurate information. The mother stated that: the father was either 32 or 46; the father had undergone anger management counseling; and he drank a lot. According to Pat Kush, a post-natal nurse, the mother had a "`flat affect" and was unable to "`process simple questions." According to the department, the mother failed to reunify with Arthur due to her refusal to cooperate with the court and the department by following through with a court order for Regional Center services. The mother made threats to kidnap Arthur from his foster parents. The mother had monitored visits at the Glendale Police Department due to her lack of cooperation and threatening statements.
The father signed paternity documents at the hospital. He was interviewed by telephone on February 11, 2002. The father stated that he had not expected the child to be born until May. The father wanted to help the mother with the new baby but was financially unable to do so.
At the detention hearing, on February 14, 2002, Joan T. Daniels represented the mother. Ms. Daniels had previously been appointed to represent the mother regarding Arthur. When the court explained that the parents had an obligation to advise the court of their address and asked if the mother understood, Ms. Daniels requested a guardian ad litem be appointed. Ms. Daniels explained: "I think in certain cases, theres a CASA that can be appointed for a client in addition to having and attorney[.] . . . I believe I need that assistance[.] I cannot fully represent my client in the state [she is] in. The report itself lays out the problems. These are not new problems. This case has been before the court, and I truly believe, even in spite of the clients answer, doubt she understands. I would respectfully submit that she does not understand." At which point, Ann Yeh, the departments counsel, stated that Ms. Daniels did not mean that the court should appoint a special advocate, but a guardian ad litem. The court appointed Joe Wick as guardian ad litem for the mother. The court also found a prima facie case for detaining the child had been established and ordered her detained. The parents were granted monitored visitation.
In March 2002, the department reported that the mother said she would not cooperate with the Regional Center. This was because she did not want to anyone telling her what to do. The mother also stated that she was "`at war" with the department. Case social worker, Barbara McHugh, observed the mother during a visit with the child on March 4, 2002. Ms. McHugh reported: the mother was unable to hold the child for longer than 10 minutes; the mother could not move the child from one arm to the other; the mother had been removed from the maternal grandmothers home; this was due to the maternal grandmothers inability to parent the mother; the mother had been placed in foster homes and had a history of running away; and the mother did poorly in placement in a Regional Center home. The mother refused the services and did not focus on job training or developing additional skills. The mother was still not interested in cooperating with the Regional Center. The mother was currently living between her apartment, motels, and the fathers automobile. The mother had been staying with her uncle but he changed the locks on the doors and would only allow her to pick up her mail from his home.
The mother attended the monitored visits at the Glendale Police Department. Prior to the childs birth, Ms. McHugh interviewed the mother. The mother was asked on several occasions if she was pregnant. The mother denied that she was pregnant and did not seek prenatal care.
The father stated that he did not have the resources to take care of the child but when he did he would observe the mother for a few months. The father wanted to see if the mother could care for a baby. The father lived with his sister, who ran a substance abuse, half-way house. He allowed the mother to shower there but his family members became upset if she wandered down the hall. The father allowed the mother to sleep in his car or he let her into his sisters house when possible. The father admitted that he had been required to take court-ordered anger management classes eight years ago. However, his last "fight" was around September of the preceding year. The father stated he wanted to get a job but every time he tried, something would arise with the mother and he had to spend all of his time and money trying to help her. The father was visiting the baby. The department recommended reunification services for the father.
The department recommended no reunification services be provided the mother based on her history of noncompliance with the court orders and the department, which led to termination of her parental rights of Arthur. The recommendation was also based on the mothers failure to disclose her pregnancy. The department recommended that the child remain suitably placed in foster care with her sibling.
On April 19, 2002, the department reported the mother had been interviewed during a visit with the child on April 8, 2002. The mother had a very strong and noxious odor which made it difficult to stand or sit close to her. The foster mother placed the child in the mothers arms. The foster mother then held the bottle for the child. Apparently, the mother was unable to feed and hold the child at the same time. The mother was only able to hold the child for 10 minutes before asking the foster mother to take the infant. The foster mother indicated that the father had visited three out of seven possible visits, including the last four. The mother had completed five visits and missed two.
The mother stated that: she and the father were currently living in his car; they showered at a church in Monrovia; they slept in a car; the father was drinking a lot of beer and smoking cigarettes; and the father used the mothers money to purchase alcohol and cigarettes. With respect to Regional Center services, the mother continued to state that she does not "`need anyone telling [her] what to do or how to live [her] life." A case manager with California Pediatrics was assigned to the mothers case through the Regional Center. The case manager stated that the mother had made only two of eight scheduled appointments. The case manager was unable to reach the mother for two weeks. The mother provided information to the department about the fathers sister who had asked about taking care of the child. The social worker left a message at the telephone number given for the paternal aunt. However, no one called back.
The father did not attend the April 8, 2002, visit. The mother indicated that the father was looking for a place to live. The father advised the department that he was not yet ready to have custody of the child. The father indicated that he could not have the child living in a car. The father did not want the baby to live with his relatives.
On April 24, 2002, the juvenile court sustained the petition under section 300, subdivisions (b), (g), and (j). The court ordered no reunification services for the mother pursuant to section 361.5, subdivision (b)(10) and (11). The department was ordered to provide reunification services for the father, who was ordered to participate in individual counseling and parenting classes.
On October 23, 2002, the department provided the court with information regarding the visitation. The father had visited a total of 10 times out of a possible 32 visits. Only 5 of the 10 visits were for a full hour. He had not visited at all in September or October. The mother had visited 20 of a possible 32 visits. The mother had only visited 1 full hour for 17 of the 20 visits. The father would drop the mother off at the police station and pick her up afterwards. The foster family had observed him sitting in the car while the visits were taking place. When the father does visit, he is distracted by the mother and does not interact with the child. The father and the mother argued over their personal affairs and paid little attention to the child. In one visit, the father displayed erratic and bizarre behavior by laying down on the floor and wiggling around making loud and unusual noises. The father explained that he was imitating a scene from the movie "Dr. Doolittle." The mother has difficulty holding the child and the foster mother has to assist the mother in holding the infant. The mother could only hold the youngster for a few minutes before she asked the foster mother to take the child.
The department also reported that the child remained placed in the foster home where she had been since her birth. Arthur also lived in the same home and was in the process of being adopted by the foster parents. The foster parents doted over the child and her older siblings took turns playing with her and participating in her care. The child was developing a bond with Arthur. She spent time with Arthur including playing and hugging each other. The foster mother stayed home to take care of the child and the other children. The child had been referred to the Regional Center for an evaluation to rule out the possibility of developmental delays.
The father was picking up monthly bus tokens but was not attending court ordered classes or individual counseling. The father enrolled in parenting classes in August but had attended only one class. He blamed his lack of visitation on the foster parents. However, on October 3, 2002, he told the case social worker, Ms. McHugh, that he felt the youngster was better off with the foster parents because he was not ready to have custody of the youngster. The father did not know when he would be ready to care for the child. The father said the mother was too immature and easily distracted to be able to care for a child. The mother was attending parenting classes. She had not provided the department with information about Regional Center services. The Regional Center services worker had not returned Ms. McHughs telephone calls.
The concurrent plan of adoption was being considered for the child. The father and the mother were informed of the plan to have the child adopted by the foster parents. The foster parents, who were adopting Arthur, stated that they would consider adopting the child if she could not reunite with her parents. The department recommended that reunification services for the father be terminated and a section 366.26 hearing be held.
On October 23, 2002, after both parents initially failed to appear at the section 366.21, subdivision (e) six-month review hearing, the juvenile court found that proper notice had been given. The court also terminated reunification services for the father. The parents subsequently appeared and requested the court to recall the matter. The court vacated its orders and set the matter for a contested hearing on December 9, 2002.
On December 9, 2002, the juvenile court held a contested hearing. The court found: the father did not participate in court-ordered counseling related services; there was no bond between the father and the child; reasonable services had been provided by the department; the parents had not been consistent in visits; and the parents had not made significant progress with the issues that brought them before the court. The court terminated reunification services for the father and set a section 366.26 hearing on behalf of the child.
In April 2003, the department reported that the child had been evaluated by the Regional Center. The child had been referred to a neurologist because of a four to six month developmental delay in the categories of adaptive self-help, communication, physical, and "social/emotional." The child was not yet walking. But the child could crawl and pull herself up to a standing position. She fed herself Cheerios but could not hold her own bottle. The child attended weekly physical therapy sessions and twice a week infant stimulation sessions. The foster mother was working very closely with the Regional Center and utilizing their resources to the fullest.
The social worker described the child as healthy and active with the exception of a "moderate developmental delay." The child was bonded to the foster parents and thriving under their support and care. The foster parents have provided the child with a healthy, safe, and loving home. The child was an integral part of the foster home. The foster parents wanted to take care of the child because they are adopting her older brother Arthur. The foster parents agreed to keep the siblings together. The foster parents stated that they love the child. They had developed a loving, parent and child bond with the child, who has been living with them since she was three days old. They were committed to raising the child as their own child.
The adoption assessment report stated that the child was in good physical condition. However, she had moderate developmental delays that were being treated at the Regional Center. The foster parents were insuring the child received the help she needed.
The father had visited the child 12 of 51 possible visits, missing 39 appointments to spend time with the child. When he did visit, they were chaotic. The father did not spend time bonding with the child. The mother visited 32 of a possible 51 appointments. She missed 19 visits. During the visits, the mother spent the time talking to the foster mother about the father. When visiting with the biological parents, the child did not appear to be comfortable. She would not go to them voluntarily. The child would frequently be frightened by the biological parents.
The father did not appear at the contested section 366.26 hearing which was held on May 15, 2003. The mother appeared and testified. The mother testified: she did not want her parental rights terminated; the childs best interests could not be served by being adopted by the foster parents who were also taking care of Arthur; and the infants emotional welfare would be damaged with the foster parents because they lied to the infant.
The juvenile court found by clear and convincing evidence that the child was adoptable. The court also found the visitation between the child and her parents had not created any parental bond. The court terminated parental rights. The parents filed separate timely appeals from the order terminating their parental rights. In addition, the mother and father subsequently filed separate notices of appeal from an order denying a section 388 petition filed by relatives of the father.
III. discussion
A. The Guardian Ad Litem Appointment
The mother contends (and the father joins in this contention) that her due process rights were violated by the appointment of a guardian ad litem for her without an opportunity to be heard. We need not address the waiver contention of the department nor the merits of the mothers due process contentions. We agree with the department that the parents are barred from raising this contention because they failed to appeal from the April 24, 2002, jurisdictional order. (In re Athena P. (2002) 103 Cal.App.4th 617, 624; In re Rubin P. (1991) 2 Cal.App.4th 306, 313, fn. 6.)
B. The Adoptability Finding
The father argues the juvenile court finding that the child was adoptable is not supported by substantial evidence because she has been identified as a special needs child. The department claims the father has waived this claim by failing to object on this ground in the juvenile court. However, it has been held, "[A] claim that there was insufficient evidence of the childs adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court." (In re Brian P. (2002) 99 Cal.App.4th 616, 623; accord, In re Erik P. (2002) 104 Cal.App.4th 395, 399.) Accordingly, although the father did not object to the finding of adoptability at the hearing, he may challenge the sufficiency of the evidence to support the juvenile courts determination that the child was adoptable.
The juvenile court may only terminate parental rights based on clear and convincing evidence of the likelihood the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Erik P., supra, 104 Cal.Ap.4th at p. 400; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In this case, the finding of adoptability was based on the evidence concerning the childs circumstances with her foster parents. The child had been living with her foster parents since she was three days old. The foster parents agreed to take care of her because they were in the process of adopting the childs older brother, Arthur. The foster parents wanted the siblings to be together. The foster parents also wanted to adopt the child, who they loved. They had also provided the child with the necessities of life and a stable, loving, home environment. Although the child had "moderate" developmental delays, the foster mother, a stay at home parent, was fully utilizing Regional Center services to address the youngsters needs.
The father nevertheless argues that the adoptability finding cannot be upheld based on evidence that she has been a special needs child that has exhibited developmental disabilities. Relying on obiter dictum in the case of In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 concerning an admissibility of evidence contention, the father argues, if the adoptability finding of a special needs child is based on evidence that a "single, identified prospective adoptive family" is willing to adopt, the juvenile court is required to make further inquiry about whether there is any legal impediment to adoption by the proposed family. The father then urges us to extrapolate on this dictum and adopt a standard requiring a juvenile court to make "a broad inquiry into the qualities and qualifications of the prospective adoptive family" in a special needs case. We decline the fathers invitation. As the record aptly demonstrates, the childs "moderate" developmental delays are being addressed through services provided by the Regional Center and with the foster parents participation.
In any event, we find no merit to the contention that "further inquiry" should have been made as to any legal impediments concerning ability of the prospective adoptive parents to adopt the child. After all, these are the same foster parents who are in the process of adopting Arthur. The court has been aware of this fact since the child was placed with the foster parents and no legal impediment against them adopting a youngster has been identified for almost two years. Accordingly, the adoptability finding is supported by substantial evidence.
IV. Disposition
The order terminating parental rights is affirmed.
We concur: GRIGNON, J. and MOSK, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.