Opinion
G045393
01-26-2012
In re BERNARDO F., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. BERNARDO M., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP018080)
OPINION
Appeal from an order of the Superior Court of Orange County, Jane L. Shade , Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
Bernardo M. (father) appeals from the juvenile court's order terminating parental rights to his son Bernardo F. He contends the court erred in terminating his parental rights without finding he was unfit to parent his son. For the reasons provided below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
We restate the factual and procedural background from our prior opinion denying father's petition for a writ of mandate from the juvenile court's order terminating reunification services and scheduling a selection and implementation hearing. (Bernardo M. v. Superior Court (May 27, 2011, G044841) [nonpub. opn.].)
"On January 27, 2009, the Orange County Social Services Agency (SSA) took Bernardo, born in May 2003, and his younger half-brother, Jonathan, into protective custody after the children found their mother, Maria, dead of apparent accidental alcohol poisoning. The juvenile dependency petition filed January 29, listed Bernardo M. as an alleged father with an address in Mexico. The petition alleged father, deported in 2003, had provided no support to Bernardo.
The juvenile court had previously terminated mother's parental rights to six other children in 1998 and 2002.
"According to SSA's detention report, a social worker interviewed father by telephone on January 27. Father claimed he was Bernardo's biological father, but he had no relationship with him because the authorities had deported him before Bernardo's birth. Because he could not enter the United States, father asked the social worker to place Bernardo with him in Mexico, or with his sister, R. D. The social worker contacted R., who agreed to meet the social worker and a therapist at Orangewood Children's Home to notify the children their mother had died.
Bernardo's birth certificate did not list father's name, but did provide father's date and state of birth. Father reported he had lived with Maria for about 18 months before he was deported.
"Both boys believed their father was 'Hugo,' who lived with their mother until she evicted him a few months before her death. The boys reported Hugo beat their mother and them, and they feared him.
"At the January 30 detention hearing, the juvenile court appointed counsel for father. The court authorized SSA to release the children to a relative or suitable adult pending the jurisdiction hearing. SSA placed the children with R. a few days later.
"Police reports contained allegations of domestic violence by father against Maria occurring in 2002. The incident resulted in father pleading guilty to misdemeanor willful infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and cohabitant battery. The court placed father on probation, imposed jail time and ordered him not to contact Maria.
"After his deportation to Mexico in 2003, father married, and resided near Mexico City with his wife and their three children, ranging in age from five years old to 10 months old. He worked as a private security guard.
"In late February, the social worker spoke with a representative of the Mexican Consulate and explained the programs father should attend, including parenting classes, counseling, a batterer's program, and alcohol testing. SSA also requested a socioeconomic study by the Mexican Desarrollo Integral de la Familia (DIF) to determine the propriety of placing Bernardo with father or with Bernardo's adult maternal half-sibling, Jose C. The social worker told father to contact the Mexican Secretary of Exterior Relations to obtain information about the case and services. The social worker also provided father with contact information for his court-appointed attorney.
"In early March, father reported DIF's Hilda Lizardi had interviewed his family. Lizardi promised to call him about beginning his programs. He had also received a letter from 'Interior Relations' advising him to enroll in a domestic violence class, therapy, parenting and alcohol classes.
"At the March jurisdiction and disposition hearing, father did not attend the hearing, but was available by telephone. He submitted the matter based on SSA's reports. The amended petition alleged Bernardo came within the jurisdiction of the juvenile court because father had failed to provide for his son's support, and had failed to prove he had completed anger management and substance abuse treatment programs. (§ 300, subds. (b), (g).) The juvenile court found father to be Bernardo's presumed father, sustained SSA's petition as amended, found it would be detrimental to vest custody with father, and ordered reunification services. The court continued the matter to August 31 for a six-month review hearing. The court authorized father's lawyer to appear on his behalf if father was unable to appear because of distance, the expense of travel, or an inability to enter the United States.
"County counsel informed the juvenile court the services offered to father in Mexico were consistent with SSA's case plan. The court ordered, at father's request, visitation through telephone calls, although county counsel would not agree to have SSA pay for the calls. The initial case plan provided for supervised telephone calls three times a week, but did not mention the funding issue. The court approved the case plan, including the visitation/calling component.
"SSA declared in its initial report for the six-month review hearing an intention to place Bernardo in Mexico with maternal half-sibling Jose C. Jose C., who had handled Maria's funeral arrangements, and his wife had consistently expressed interest in assuming permanent custody of both boys, and in adopting Bernardo if reunification with father failed. Once father completed his reunification plan and DIF deemed it appropriate, Bernardo would be placed with his father. Jonathan, however, would remain with the maternal family. DIF had favorably evaluated both Jose's and father's home for placement. The social worker began gathering the necessary paperwork, such as birth certificates and passports, to allow the boys, born in the United States, to live in Mexico.
"The social worker continued to evaluate whether placement with father in Mexico was in the boys' best interest, however. The boys had been with their paternal aunt for over six months, and had adjusted well in her home. They were well cared for, had developed a strong relationship with her, and she offered them a permanent home. The children's therapist believed the children would be better off remaining in their current placement. They appeared happy and well adjusted, and he warned any change could be emotionally traumatic. With the shock of their mother's recent death, it would be difficult to measure the overall emotional impact on the boys if they were suddenly removed from their aunt's home and relocated to a country they had never visited and live with relatives with whom they had no prior relationship. Another concern was the potential emotional harm caused by separating the siblings if Bernardo reunified with father. Father declined to take Jonathan into his home, and the boys were very close.
"The social worker had the Mexican relatives send pictures and letters, and telephone Bernardo. He asked the family to obtain visas to visit the children in the United States, but little progress was made due to the family's limited resources. Father had telephone contact with the children once a week. Jose C. had spoken to them just once as of August 18.
"Father had begun participating in case plan services, including drug testing, individual therapy, and attendance at a 12-step program. Given his criminal history, the social worker believed face-to-face monitoring and DIF supervision of father and Bernardo would be necessary to assure Bernardo was not at risk in his father's care.
"As noted, father received authorization for three telephone calls per week, but averaged only one call. Father expressed difficulty in making long distance calls because of the cost. The social worker asked the caretaker to encourage father to call, and for her to initiate phone calls whenever possible.
"Bernardo stated he would like to live in Mexico with this father because his father was 'going to buy him clothes and toys.' He reported liking Mexico even though he had never been there. Jonathan stated he would like to remain with the aunt, where he felt safe and comfortable. The therapist believed the children did not understand the overall impact of their expressed preferences.
"An addendum report reflected father had 'remained open, motivated, and cooperative[.]' He continued to participate in therapy, had completed drug testing, and regularly attended Alcoholics Anonymous (AA) meetings. He had maintained weekly contact with Bernardo, with calls lasting six to eight minutes. The social worker informed father of concerns in placing Bernardo in Mexico. Father responded he understood, and conceded it was a difficult decision. He promised to continue with therapy and other services. If the court decided not to place Bernardo with him, father requested that Bernardo remain with the paternal aunt so he could maintain contact with Bernardo and possibly visit his son in the future.
"The therapist voiced his 'deep concerns about sending the children to Mexico,' which he believed would 'cause great emotional and social disruption.' He cited the trauma of losing their mother, the boys' favorable adjustment in their current environment, and the detriment in going to an unfamiliar country they had never visited to live with people they did not know, coupled with the prospect of separation from each other.
"In late September, the parties conferred concerning the possibility of Bernardo visiting father in Mexico City, but counsel for minor objected. The juvenile court directed SSA to examine the feasibility of arranging a visit in San Ysidro.
"In late October, the social worker reported father continued to participate in his programs, and he and Bernardo spoke on the telephone every week for about 15 to 25 minutes about everyday topics. Father felt the calls went well and he hoped Bernardo could be placed in his care in the near future. Father objected to a visit in San Ysidro because of the distance and his lack of resources. He was also unfamiliar with the area, and feared the assaults and robberies occurring in the border areas. The Mexican Consulate reported it did not have funds to support father's travel, but it would check if other agencies could provide the funds.
"At the six-month review hearing on October 22, father stipulated, and the juvenile court found, continued court supervision was necessary, return of Bernardo to father would create a substantial risk of detriment, and reasonable services had been provided or offered. The court directed SSA to continue to work with DIF to facilitate visitation in San Ysidro. The court directed SSA to notify the court and counsel if it intended to place Bernardo in Mexico.
"In February 2010, the social worker recommended terminating reunification services and scheduling a [Welfare and Institutions Code] section 366.26 hearing. SSA was completing an adoption home study for the paternal aunt, who was in the process of adopting Jonathan. The aunt had previously expressed a willingness to act as legal guardian or to adopt both boys with financial assistance. The social worker noted Bernardo initially had been detached and emotionally distraught when placed with his aunt, and had been unable to concentrate and thrive in school. Since living with his aunt, however, he had made substantial academic progress.
"Father continued to participate in case plan activities and weekly telephone calls, but had not obtained the travel funds necessary to meet his son. The social worker recognized the economic barriers facing father, but noted 'in person contact [was] necessary to foster a relationship between the child and father[,]' and to assess father's 'parenting capacity, ability to establish rapport, and the child's comfort level[.]' 'Without having some concrete information' it would 'be careless and possibly detrimental to the child's safety and well-being to release child to his father.'
"The therapist again emphasized it was in Bernardo's best interest to remain in his current placement with his brother and that a move would 'create additional psychological harm.' The therapist believed 'the best option is for Bernardo to remain here and perhaps have visits with [father]. Since he never lived with . . . father, there is not an attachment bond there at this time.'
"Bernardo declared he would like to stay with his aunt and brother. He did not know where Mexico was, and did not want to live there.
"The Mexican Consulate provided father with funds to travel to San Ysidro for a single two-hour visit on March 8, 2010. At the beginning of the visit, Bernardo appeared uncomfortable and unsure, and clung to the social worker. Father gave Bernardo toys, and Bernardo appeared happy and played with them for 20 minutes. Father took pictures and spoke to the social worker, but had to be redirected to concentrate on his son. Father tried to engage Bernardo, who preferred speaking in English, in conversation. Father, who remained passive throughout the visit, appeared uncomfortable and hesitant. He rarely initiated conversation, and maintained a physical distance from Bernardo. The social worker facilitated conversation about family, father's work and school. Father showed Bernardo pictures of the family in Mexico. Bernardo initially showed interest, but returned to playing with the toys while father stood by, watching his son and taking pictures. After the visit, Bernardo stated he was happy to meet his father and he wanted to live with him in Mexico because '"my daddy buys me toys."'
"A few weeks after the visit, SSA explained to father that it would continue to recommend terminating reunification services because father and Bernardo did not have a relationship. SSA instead recommended the paternal aunt adopt Bernardo and maintain his relationship with Jonathan. The aunt expressed a willingness and desire to facilitate continued contact with father, who agreed to adoption by his sister if Bernardo could not be released to him.
"On March 30, 2010, county counsel and father stipulated over Bernardo's objection to schedule the matter for an 18-month review hearing. Despite some misgivings, the juvenile court scheduled an 18-month review hearing. It found continued supervision was necessary, return of Bernardo to father would create a substantial risk of detriment, reasonable services had been provided or offered, and there existed a substantial probability Bernardo would be returned to father's physical custody within six months because father had consistently and regularly contacted and visited Bernardo and had made significant progress in resolving the problems that led to Bernardo's removal. The court amended the visitation plan to require SSA to facilitate monthly visits at the San Ysidro port of entry if father could make his own arrangements for travel.
"In July 2010, SSA again recommended termination of reunification services. The aunt, whose adoptive home study for Jonathan was in progress, preferred to become Bernardo's legal guardian because she did not want father's parental rights terminated. SSA pointed out father lacked the money necessary for a second visit with Bernardo, and repeated its reasons why Bernardo should not be released to his father. Bernardo's therapist continued to question placing Bernardo with his father in Mexico, and suggested an educational assessment because Bernardo might have special needs, and might need the help of the county's regional center. Bernardo announced he wished to stay with his aunt and brother.
"On July 27, 2010, the juvenile court granted father a continuance of the 18-month review hearing. At the hearing, father's counsel requested the court to order the county to pay for father's visitation and increased telephonic contact. The county opposed the request. The court denied the motion without prejudice, explaining it would revisit the matter if father's counsel provided further information to warrant a change in the existing orders.
"On September 17, the juvenile court addressed father's renewed request for county funds and father's proposed budget for travel and calls. Airfare from Mexico City to Tijuana cost $378, and cab fare was $28. A six minute phone call cost 90 cents. County counsel objected to the request for funds, noting the county typically did not pay travel expenses for out-of-county or out-of-country parents to visit their children.
"The juvenile court denied the request, finding father failed to establish good cause for the expenditure of county funds, noting that father should seek assistance from his family or Mexican authorities. The court also noted the phone calls were very inexpensive.
"Bernardo completed a psychological assessment in October. The psychologist noted Bernardo was 'experiencing symptoms of anxiety including a sense of impending doom,' related, at least in part, to the juvenile court proceedings. He displayed average intellectual ability, but suffered from impaired judgment, lacked insight, and showed deficits in his ability to focus and concentrate, and his general fund of knowledge was low. There was no 'reason why he would not be able to learn at an acceptable level based on cognitive ability,' but this 'will require time and consistency in order for him to get up to speed academically.' The psychologist concluded Bernardo was about a year behind academically. He showed strong attachment to his foster family, and his 'attachment level with his brother [was] considered very important and highly impactful' to his overall emotional well-being. He continued 'to struggle with the loss of his mother' and a 'further loss may be difficult . . . to cope with at this time.' The psychologist stated it was 'imperative' Bernardo continue in his current placement and educational setting to provide him a sense of stability. The psychologist believed Bernardo would experience an increase in anxiety-related symptoms and would be unable to learn effectively if placed with father, explaining that a move to a foreign country with a father he did not know would likely exacerbate the child's existing depression and anxiety, and undermine his ability to make a successful placement.
"Bernardo's therapist reported Bernardo was stable and doing well in his current placement and again emphasized a permanent move to Mexico would be detrimental. Bernardo expressed a desire to visit father in Mexico, but to return to California.
"Mexican authorities sponsored father for two visits on consecutive days in San Ysidro in late December. On the first day, Bernardo appeared not to know father or remember the earlier visit. He resisted a hug and did not say hello. Father and son conversed very little during the visit. Father brought a toy and showed Bernardo pictures from his cell phone, but Bernardo did not appear to recognize anyone. At the end of the visit, father hugged Bernardo and said good-bye, but Bernardo did not reply. The second day, father brought food and another toy. Bernardo said he liked the toy, and thanked him. Father asked if Bernardo was behaving for his aunt, and Bernardo replied he was. The visit lasted only 30 minutes because father was late crossing the border. Father said good-bye and hugged Bernardo, who reciprocated.
"In late January 2011, the aunt maintained a neutral position on adopting Bernardo and agreed to facilitate visits and maintain contact with father. Bernardo reported he liked the visits with father and would like to see him again.
"At the 18-month permanency review hearing in February 2011, the social worker testified consistently with his reports that it would be detrimental to Bernardo's emotional health to place him with father in Mexico. The worker admitted he had not considered Internet or visual telephone services like Skype to facilitate contact. He had inquired of SSA supervisors three or four times whether father could obtain county funds for visitation.
"The juvenile court found returning Bernardo to father would create a substantial risk of detriment to his emotional well-being, and found reasonable services had been provided or offered. The court terminated reunification services and scheduled a [Welfare and Institutions Code] section 366.26 hearing for June 9, 2011."
In our previous opinion, we upheld the juvenile court's order terminating reunification services and scheduling a Welfare and Institutions Code section 366.26 (all further statutory references are this code) hearing for June 2011. In his report for the section 366.26 hearing, the social worker noted six-year-old Bernardo appeared to be developmentally on track, was "approaching proficiency to exemplary" in all school subjects and his behavior was excellent. Bernardo's psychologist reported Bernardo "appears stable" and wanted visits with father, which the doctor supported. The doctor recommended Bernardo remain with his paternal aunt and half brother, whom the foster mother had adopted.
The worker noted father had consistently telephoned Bernardo once a week and had three in person contacts during Bernardo's lifetime. After termination of reunification services, father decreased his communication to phone calls once or twice a month, but had recently increased calls to once a week. Father stated he did not have access to a computer, so he could not communicate with Bernardo via Skype or similar online service at the present time.
A permanency planning assessment dated May 2011 and a preliminary assessment of the paternal aunt and her home reflected Bernardo was likely to be adopted based on his characteristics and attributes. Bernardo reported having a good relationship with his aunt. He was "a quiet, reserved individual who[] enjoys interacting and playing with [h]is younger brother and playing video games." The paternal aunt was committed to adopting Bernardo and stated she would provide him with everything he needed and ensure that he kept regular contact with father.
At the section 366.26 hearing, the juvenile court denied father's claim that termination of parental rights would violate his constitutional liberty interest in parenting Bernardo. The court found Bernardo was likely to be adopted, and that termination of parental rights would not be detrimental to Bernardo.
II
DISCUSSION
A. The Juvenile Court Did Not Err in Terminating Parental Rights
Father challenges the sufficiency of the evidence to support the juvenile court's order terminating his parental rights. He argues he is "undisputedly a fit parent," and that "[t]ermination of parental rights without a finding of parental unfitness proven by clear and convincing evidence" violates his constitutional right to due process. He asserts legal guardianship was the "appropriate" permanent plan for Bernardo.
Under California's scheme, parental "unfitness" in the constitutional sense is established when the juvenile court removes a child from his parents' custody because of detriment or harm to the child, and the parent fails to reunify with the child within the statutory period. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) The issues involved in an appeal following a section 366.26 selection and implementation hearing are limited. Section 366.26, subdivision (c)(1), provides that "[i]f the court determines, based on the [adoption] assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights." The court "shall terminate parental rights unless" certain circumstances exist. (See § 366.26, subd. (c)(1)(A)- (B)(i)-(vi).) Father does not contend any of these statutorily-enumerated circumstances exist in this case.
Bernardo relies on In re Z.K. (2011) 201 Cal.App.4th 51 (Z.K.). There, a father absconded with the couple's infant son. After five years of searching, the mother discovered the boy in foster care in California, where the father had been arrested. She immediately contacted the social services agency to request custody. At the time of the request, the dependency proceedings had progressed to a section 366.26 hearing. The appellate court reversed the juvenile court's order terminating parental rights because the government never proved by clear and convincing evidence that placement with the mother would be detrimental to the child.
The present case is distinguishable. As noted in Z.K., it was "because mother was not involved in the earlier stages of the proceeding that a specific finding of detriment was needed before her rights were terminated at the section 366.26 hearing." (Z.K., supra, 201 Cal.App.4th at p. 65, original italics.) Unlike the mother in Z.K., father was "'denied placement [at the dispositional hearing].'" (Ibid.) As explained above, father had no pre-existing relationship with Bernardo because the authorities had deported him before Bernardo's birth. The dependency petition alleged Bernardo came within the jurisdiction of the juvenile court because father had failed to provide for his son's support, and had failed to prove he had completed anger management and substance abuse treatment programs. (§ 300, subds. (b) & (g).) At the jurisdiction and disposition hearing, father submitted on the issues raised by the petition based on SSA's reports, and the juvenile court found it would be detrimental to vest custody with father. Reunification efforts failed, father was never able to establish a relationship with Bernardo, and the court found at subsequent review hearings that placement of Bernardo with father would be detrimental. The order terminating parental rights did not violate father's constitutional right to due process.
III
DISPOSITION
The order terminating parental rights is affirmed.
ARONSON, ACTING P. J. WE CONCUR:
FYBEL, J.
IKOLA, J.