Opinion
G058676
08-07-2020
In re ERIC P., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.F. et al., Defendants and Appellants.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant A.F. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant E.P. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP1013) OPINION Appeal from a judgment of the Superior Court of Orange County, Katherine E. Lewis, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant A.F. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant E.P. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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A.F. (mother) and E.P. (father) appeal from the trial court's order terminating their parental rights to now eight-year-old Eric, who was detained at age five from mother's custody. Except for an aggregate period totaling approximately one month early in his dependency, Eric has remained out of either parent's care ever since. Mother contends the juvenile court abused its discretion and violated her due process rights when, after concluding that ordering Eric to testify "would absolutely cause psychological damage and harm to him"— which mother does not dispute—the court failed to order alternative methods of inquiry regarding his bond with her and with his infant twin sisters. The court concluded these bonds could be determined and weighed based on the lengthy dependency record. Mother also contends the court erred in failing to order postadoption sibling visitation. Father joins in mother's arguments to preserve mother's parental rights, and thereby his own. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
As we explain, the court did not err in failing to explore Eric's maternal or sibling bonds beyond what was already shown in the record. Nor do mother and father have standing to raise issues regarding future visitation, which, in any event, the prospective adoptive parents have indicated they are open to. There being no grounds for reversal, we affirm the juvenile court's order.
FACTUAL AND PROCEDURAL BACKGROUND
Although the record is voluminous due to proceedings spanning nearly three years, the issues on appeal are narrow. We limit our background discussion accordingly.
In June 2017, with five-year-old Eric at her side, mother was arrested for shoplifting and found with methamphetamine, marijuana, drug paraphernalia, and a large amount of cash in her possession, in addition to high-value stolen goods. Eric was released to his maternal grandmother's care, but mother sent him to Mexico for six weeks with an aunt. When he returned, the Orange County Social Services Agency (SSA) obtained a warrant and took Eric into protective custody. The agency determined custody was necessary after mother gave bizarre statements calling her mental health into question, and was neither forthcoming about her drug use nor insightful about shielding Eric from her difficulties. The father likewise reported he could not give Eric a home.
In September 2017, the juvenile court found a prima facie case for continuing detention on grounds mother and father failed to protect Eric or provide for his support, and set a subsequent jurisdiction and disposition hearing. (Welf. & Inst. Code, § 300, subds. (b)(1), (g).) The court briefly released custody of Eric to mother and then to father, in each instance under a Conditional Release to Intensive Supervision Program. Both failed. Eric was briefly detained at Orangewood Children and Family Center, and then in October 2017 placed in a foster home with a couple and their three children. He has remained with the caretakers since that time, and they now seek to adopt him.
All further undesignated statutory references are to this code.
In November 2017, the juvenile court sustained jurisdiction over Eric on a second amended petition alleging neglect (§ 300, subd. (b)(1)); the court ordered reunification services for mother and father, with Eric to remain placed with his caretakers. Reunification efforts spanned over approximately 20 months. In June 2019, the juvenile court terminated reunification services and set a permanency planning selection and implementation hearing (.26 hearing).
Prior to the .26 hearing, Eric's therapist prepared a report recommending against having Eric testify, to preserve his psychological health. Eric was previously diagnosed with posttraumatic disorder (PTSD) stemming in part from verbal abuse by mother; his caregivers noted her "bullying behavior" continued during visits. Eric also exhibited trauma symptoms in other settings, including anxiety, lack of self-worth, and aggression. The therapist observed that "Eric's symptoms increase when presented with new, unfamiliar settings, especially when people are introduced to him without a relationship be[ing] established." His therapist testified Eric was reticent to discuss relationship issues even with persons familiar to him, including his social worker for the past two years. The therapist expressed concern that testifying could affect Eric "in ways that could cause further harm and retraumatize him"; she reiterated this opinion in her testimony at the .26 hearing. Eric's attorney objected to him being called as a witness.
The court credited the therapist's testimony and, in denying requests to have Eric testify by mother and father, including in chambers if necessary, the court added its own observations. The court noted, for example, Eric's need, even while doing homework, for "a special weighted vest because of his anxieties and special needs. He has a problem [communicating] at school [even] with a teacher that he knows [well]. [¶] He has tremors. His hands shake when he's asked to do something that he doesn't like to do or when he's not in a comfortable situation. That's seen over and over in the reports. He has a lot of special needs." The court also noted "statements in the reports from all of the individuals that interact with him" indicating his responses when questioned often were "just a nodding of the head, and sometimes he doesn't respond" at all.
In declining to order Eric to testify or to have him answer questions posed by the social worker, as mother proposed, the court concluded: "I don't know that he'd be able to give us—I don't believe, based on all the information that I have before me, that he would be able to provide anything more than what we can glean from the records that we already have." Following testimony from the social worker and father, the court heard argument by counsel; it ultimately determined by clear and convincing evidence that Eric was adoptable and that none of the statutory exceptions for termination of parental rights applied, including parental or sibling bonds outweighing the benefit of adoption. The court therefore terminated mother's and father's parental rights, and selected adoption as Eric's permanent plan. His parents now appeal.
DISCUSSION
1. Eric's Wishes
Mother contends the parents' due process rights were violated when the court declined to require testimony from Eric—or substitute evidence elicited from Eric by a social worker using court-approved questions—regarding his relationship with mother and his sisters.
Specifically, mother argues reversal is required since Eric was not asked on the stand, in camera, or otherwise in therapy or by the social worker "about the permanency of adoption" or "how he would feel about never seeing Mother or his sisters again." Mother argues that without "Eric's perspective being made known to the trial court and [the] parties" on these and similar questions bearing on "his bond with either Mother or his sisters," the trial court's decision terminating parental rights "was 'based solely upon unreasonable inferences, speculation or conjecture.'"
According to mother, "What was missing from the [dependency] reports was how Eric would feel [about] losing contact with Mother and his sisters," given the fact that he was "never asked about never seeing [them] again." Nor was he told about "other possibilities . . . such as remaining in his foster home and still not being adopted," by which we assume mother means guardianship instead of adoption. Mother provides no record support for the foster parents agreeing to such an arrangement.
In any event, mother's appeal for express evidence of Eric's feelings about the permanency of adoption and about his maternal and sibling bonds—while heartfelt by mother and understandable—is misplaced. It "fails to take into account the tremendous diversity that exists among children," including some being "too young or too immature" to confront the prospect of termination directly, "while others may be permanently and severely traumatized" if asked to make express statements. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592 (Leo M.)).)
Section 366.26, subdivision (h), requires the juvenile court to "'consider the child's wishes to the extent ascertainable'" before terminating parental rights. (Leo M., supra, 19 Cal.App.4th at p. 1591.) It ultimately rests with the court, however, to determine the child's best interests. (Id. at pp. 1592-1593.) Even a child's express opposition to termination may not be a compelling reason to avoid freeing the child for adoption, if he or she is under age 12. (See § 366.26, subd. (c)(1)(B)(ii).) "[W]hether to require a direct statement from the minor regarding his/her thoughts is one that is best left to the sound discretion of the trial judge." (Leo M., at p. 1592.)
Courts have moved away from the early position stated in In re Diana G. (1992) 10 Cal.App.4th 1468, 1480, that the dependent child must be aware that the "proceeding involves the termination of parental rights." (See In re Julian L. (1998) 67 Cal.App.4th 204, 208-209; Leo M., supra, 19 Cal.App.4th at p. 1593.) Contrary to mother's position, the "assertion the court must specifically ask how the child feels about ending the parental relationship is just plain wrong." (In re Amanda D. (1997) 55 Cal.App.4th 813, 820 (Amanda D.).)
"As the Leo M. court aptly stated, '[I]n honoring [the minors'] human dignity . . . we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. . . . [I]t is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.'" (Amanda D., supra, 55 Cal.App.4th at p. 820.) Instead, "[w]hat 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.'" (Ibid.)
"[T]he evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing." (Amanda D., supra, 55 Cal.App.4th at p. 820.) Nor must the child make precise "comment[s] on his relationships with the involved parties." (Leo M., supra, 19 Cal.App.4th at p. 1593.) In Leo M., although "the record contain[ed] no direct evidence of [the child's] thoughts on this matter," it still "include[d] ample evidence from which his feelings can be inferred" favoring adoption. (Ibid.)
Here, Eric made his feelings known. He told the social worker, "I want to be adopted," when asked about living with his adoptive placement family permanently. Questioned further about whether he wanted to remain in his placement or go home with mother, Eric responded simply: "here until I grow up." Broad topics like, "What makes you happy," elicited no response from Eric, but the social worker had come to know him well, and when she asked about the toy he was playing with ("what makes your car happy"), he answered succinctly, "New owners."
Eric told the social worker without elaboration that his visits with mother were "great," but he showed no distress in parting from her when the visits ended. SSA's reports showed Eric instead had "a strong attachment to his prospective adoptive parents," whom he saw "as parental figures," seeking "comfort from them (i.e. when he has nightmares)," and with whom "his previously problematic behaviors (including temper tantrums ) have decreased since the start of the case." In fact, a year into his placement with them, Eric took to appending their last name to his to identify himself at school.
His bond with them was evident, including when his hands "trembl[ed] badly" and he became "agitated" when the social worker had the prospective adoptive mother leave the room during the visit with his mother. Asked on another occasion "who helps him feel safe," Eric identified the prospective adoptive parents.
The record also showed Eric had positive relationships with his infant twin sisters, who were born to mother and father almost a year and a half into his dependency, and also with the prospective adoptive family's three teenage children. One of the prospective adoptive parents' children was adopted and another child prompted the family "to help other children." Eric shared a room with a foster brother, described the prospective adoptive family as "great," and wanted to live with them until he was all "grow[n] up," which he viewed as "like [his eldest foster brother's] age."
Although mother, who was no longer with father, was understandably distracted by caring for the twins and had less time to devote to Eric during visits, the prospective adoptive mother reported that Eric was thrilled to meet his siblings. She told the social worker Eric "loves seeing them and holding them," and stated after he met them that "he wore his police officer costume all weekend and patrolled the neighborhood to 'keep it safe' for his sisters." Even when Eric did not seem excited to see mother on visits, he was "'very happy to see [the] twins.'" The social worker observed he "pretty much lit up when he was asked to take the siblings around the room with the stroller," and said he seemed "very happy to do that."
In view of the foregoing and a dependency record of over 1000 pages which provides similar insight into Eric's feelings about his relationships, mother's reliance on In re Amy M. (1991) 232 Cal.App.3d 849 is misplaced. There, in the face of conflicting expert opinions, no evidence at the jurisdiction hearing could substitute for the minor's testimony regarding whether he suffered emotional harm from sexual abuse of his sister, nor did the juvenile court find him unavailable due to a risk of trauma from testifying. (Id. at pp. 865-868.) His testimony was therefore necessary to satisfy due process. (Id. at p. 867.)
Nevertheless, as courts have also explained, "It would be a perversion of the procedure to impose . . . a requirement that the child's testimony always be presented, regardless of the trauma resulting to the child therefrom, and regardless of the necessity of such testimony in the resolution of the issues before the court." (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1089 (Jennifer J.).) Where "it is shown that the child would be psychologically damaged by being required to testify" and "the child's desires and wishes can be directly presented without live testimony" so that "the issues to be resolved would not be materially affected by" his testimony or absence thereof, the juvenile court may decline to order the child to testify. (Ibid.) "This power derives . . . from . . . the overriding objective of the dependency hearing—to preserve and promote the best interests of the child." (Ibid.; accord, e.g., In re Daniela G. (2018) 23 Cal.App.5th 1083, 1095-1096.)
Such is the case here. Mother does not challenge the juvenile court's finding it was "clear . . . that were [Eric] to come and testify that it would absolutely cause psychological damage and harm to him." Ample evidence supported this finding, which we need not revisit. Moreover, there is no merit in mother's claim that the proceedings were flawed for lack of direct inquiry into "what Eric would feel he would be losing by not seeing his mother or his siblings anymore." Such questions were not necessary. (Amanda D., supra, 55 Cal.App.4th at p. 820.) Mother fails to identify relevant questioning or inquiry not covered in the voluminous record.
To the contrary, the record was replete with evidence from which the court could infer Eric's wishes and feelings, credit his express statements ("I want to be adopted"), and determine based on his best interests that his bonds with mother and his sisters, such as they were, did not stand in the way of terminating parental rights to free him for adoption. Consequently, Eric's testimony was not essential on these matters when it would have exposed him to psychological harm. (Jennifer J., supra, 8 Cal.App.4th at p. 1089.)
Similarly, the court did not err in declining mother's suggestion as an alternative to testimony for "counsel to submit a list of questions to the social worker to ask Eric, again, nothing too difficult for Eric to answer." Mother's attorney couched her request in limited terms, stating, "All we want to ask him about [is] does he enjoy the time with his mother, does he enjoy the time with his siblings."
Eric's answers to these questions, both express and implied, were in the record. Consequently, revisiting these questions yet again, even by methods other than testimony, was not necessary. Having properly determined that testifying posed a serious risk of harm to Eric, the juvenile court reasonably viewed the proposal for substitute questioning as redundant—and thus, cumulative and subject to exclusion. (Evid. Code, § 352.). We review the juvenile court's evidentiary rulings for abuse of discretion. (In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249.) We find none here.
2. Sibling Placement and Postadoption Visitation
Mother next contends the juvenile court "erred in not ordering postadoption sibling visitation pursuant to section 16002." (Capitalization omitted.) Mother's statutory challenge is in two parts, one concerning Eric's placement away from his siblings (once they were born) in the period before the parents' parental rights were terminated, and a separate challenge concerning potential postadoption visitation among siblings.
The placement challenge is without merit because mother argues only generally—and incorrectly—that placing the siblings together "was never considered." Mother is correct that section 16002 expresses, as she phrases it, a non-mandatory "legislative goal" that siblings be placed together where possible. In other words, it is a "factor to be considered in making the discretionary foster care placement." (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 642.)
Mother's own record references make clear the juvenile court's thought process: "There are siblings to consider under the court's jurisdiction. The twins. The twins are not placed with Eric, and placing them with Eric" or otherwise "placing them together is inappropriate." (Italics added.) Earlier, around the time the twins were born, the court also found that "plac[ing] the child with siblings [was] not appropriate." SSA had explored that option and found the twins could not be placed with Eric for lack of "space," nor should Eric be moved having "already been placed with his current caregivers for over one year when the twins were born." The juvenile court's orders regarding placement indicate that it agreed with SSA.
Mother's related assertion that the juvenile court "[n]ever considered the value of the sibling relationship, or preserving that relationship" is also belied by the record. (Italics added.) The court expressly considered and rejected the sibling benefit exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v).)
Mother does not additionally argue that the court erred in its assessment of the value of preserving the sibling relationship measured against the permanency of adoption, or that the court erred in failing to place Eric with his siblings—only that the court failed to consider these matters or to require diligent efforts at joint placement or ongoing contact. The record reflects the court considered and rejected placing the siblings together, but ordered ongoing visits through the reunification period. Mother's claims therefore furnish no basis for reversal.
Finally, mother does not have standing to raise her alternate claims regarding postadoption sibling contact, nor are those claims ripe. Section 16002, subdivision (e), provides that if parental rights are terminated and the child is to be placed for adoption, the social services agency "shall" take specified steps "to facilitate ongoing sibling contact." Section 366.29 similarly promotes continuing sibling relationships by recognizing prospective adoptive parents can agree to voluntary contracts "to facilitate postadoptive sibling contact," which may be enforced provided it "is in the best interest of the child." (Id., subds. (a), (c)(2).)
Section 16002 may be enforced by the child's siblings (In re Cliffton B. (2000) 81 Cal.App.4th 415, 427); in contrast, parents whose rights have been terminated have no standing to do so. (Ibid.; In re Nachelle S. (1996) 41 Cal.App.4th 1557, 1561-1562.) Mother points to no contract yet finalized for postadoption sibling contact that would give her standing to enforce it as a party to the agreement. Nor does she allege any breach or failure by the court to enforce such an agreement. While SSA referred the prospective adoptive parents to services designed to facilitate ongoing sibling contact (cf. § 16002, subd. (e)), which appeared to hold promise, the record in this appeal ends with the termination of parental rights. Any challenge premised on an absence of sibling contact postdating the termination of parental rights is therefore premature. We express no opinion on the viability of such a claim.
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
GOETHALS, J. WE CONCUR: FYBEL, ACTING P. J. THOMPSON, J.