Opinion
G055522
03-09-2018
In re F.I., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.A., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DP025689-001, DP025689-002) OPINION Appeal from an order of the Superior Court of Orange County, Gassia Apkarian, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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S.A. (mother) appeals from the juvenile court's August 2017 order terminating her parental rights (Welf. & Inst. Code, § 366.26; all references to this code unless otherwise noted) to her daughter, F.I. (born in September 2007). Mother raises issues that were not raised in the juvenile court and which are generally not cognizable on appeal from an order terminating parental rights. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In late October 2014, a teacher found seven-year old F.I. wandering alone at her former preschool. The child directed her former teacher to a car where F.I.'s father, Jose I. (father), was passed out, apparently intoxicated. Police officers arrested father for child endangerment, and placed F.I. with a family friend, Alicia M.
Alicia, married with four children, stated she befriended father four years earlier. She cared for F.I. as needed, and father frequently left the child with her for long stretches without saying when he would return. Father and F.I. previously had lived with Alicia's family for about six months. F.I. called Alicia "mami" and referred to Alicia's children as her brothers and sisters. Alicia agreed to continue caring for F.I. after father's arrest.
Father reported mother had been deported to Mexico when F.I. was three months old, and he had no information how to locate her. Father was diabetic, disabled, and did not work. Father stated he occasionally drank alcohol, but denied having an alcohol problem. Concerning his arrest, he was at a laundromat when he fell ill because of his diabetes, and he asked a friend if he could sit in his car. He fell asleep, and F.I. wandered off to her old preschool. He awoke when police officers confronted him.
The parties agreed to maintain the placement with Alicia until the social worker could review the police report and conclude the investigation. The social worker authorized father to visit F.I. in Alicia's home.
The social worker interviewed F.I. and described her as "talkative and friendly." The child referred to Alicia and her husband as "mom" and "dad." She denied suffering any abuse with father. She acknowledged father drank, but she claimed he did not get drunk, although she admitted he was "a little bit drunk" on the day he was arrested.
The social worker reviewed the police report, which reflected officers determined father was intoxicated. She also ascertained father had suffered a 2012 conviction for driving under the influence. Father admitted he had placed F.I. in danger, but denied it had happened before. Father's roommate reported father drank, but he had never seen father so drunk that he was unable to care for F.I. Alicia told the officer she had been "almost raising" F.I. since she was a baby, and she had seen father intoxicated on numerous occasions.
SSA filed a petition (§ 300, subd. (b)) alleging F.I. had suffered or was at substantial risk of suffering serious physical harm as a result of the inability of her parents to supervise or protect her, or to provide regular care due to substance abuse. The petition recounted the events described above, and alleged mother's whereabouts were unknown, that mother had "failed to establish a relationship with" F.I., had not "provided for the [child's] safety, support and protection," and was not available to provide appropriate care. The detention report reflected a preliminary search for mother had been unsuccessful.
At the detention hearing, the court ordered liberal monitored visits for father, directed him not to consume alcohol, and authorized funds for substance abuse testing. Alicia was authorized to serve as visitation monitor.
The social worker's jurisdiction and disposition report recommended reunification services for father, including random alcohol testing, counseling, a 12-step program, a parenting course, and an alcohol treatment program. Father was cooperative, and willing to participate in services. He tearfully expressed he wanted to get his daughter back and be with her. F.I., however, stated she did not want to live with father, but did want to visit him. She reported missing a lot of school when she lived with father because he "took [her] places." Alicia supported father's efforts to reunify with F.I., but expressed a desire to provide legal permanence if reunification failed. Father regularly visited F.I. and the visits went well. The social worker recommended no services for mother unless she presented herself (§ 361.5, subd. (b)(1) [reunification services not required if whereabouts of parent unknown]). Father provided the social worker with a maternal aunt's phone number.
In February 2015, father submitted on the allegations of the petition, the juvenile court found the allegations true, and the court declared F.I. to be a dependent of the court. The court found by clear and convincing evidence custody with the parents would be detrimental to F.I., and vested custody with SSA. The court found SSA exercised due diligence to locate mother, she failed to appear, and the court proceeded in her absence. The court scheduled a six-month review for July 2015.
A lengthy reunification period ensued. During this period, father was diagnosed with serious health issues. The court sustained a subsequent petition (§ 342) alleging F.I. suffered sexual abuse by a cousin while in father's care. In conjunction with the subsequent petition, SSA performed another unsuccessful search for mother. The court found SSA exercised due diligence in its efforts to locate mother.
Throughout the reunification period, F.I. referred to her caregivers as mom and dad and stated it was "good" living in their home. She liked visiting with father every day, but she did not want to live with him. She stated her real mom left her when she was three months old.
The social worker's report for the 18-month review dated June 15, 2016, described father's progress with the case plan as "moderate," but recommended terminating reunification services and scheduling a section 366.26 hearing. Father had received more than 18 months of services, but the social worker could not recommend returning F.I. to his care. Most significantly, father had not followed the court's visitation plan, noting father's "struggle . . . to follow . . . specific visitation orders." Based on father's failure or inability to comply with the conditions, the social worker had been unable to liberalize visits.
But F.I. stated she now wanted to return home "as the father has promised to take her to places she has not been to." Based on father's progress in overcoming his substance abuse issues, the social worker in July 2016 authorized unmonitored visits, and she convened a team meeting to consider overnight visits and initiating a 60-day trial visit. Overnight visits commenced July 29, and a trial visit commenced not long after. In early October 2016, the social worker recommended returning F.I. to father with family maintenance services.
Around this time, mother surfaced. Alicia reported father had taken F.I. to Tijuana to visit her. The social worker spoke with mother, who stated she wanted reunification services and claimed father always had known her whereabouts. She confirmed she had been deported when F.I. was a year old and had not been able to return. She wanted to see F.I., and requested an attorney. Father reported mother had known about SSA involvement for about three months since they had contacted each other through social media. F.I. had spoken with mother.
Sadly, father passed away in late October 2016. The social worker placed F.I. with Alicia. F.I. told the social worker she was doing well overall and was happy to be back with Alicia. F.I. did not want to be placed with E.A., a maternal aunt, with whom she had contact after she returned to father's care. She wanted "to stay permanently with" Alicia "(aka: 'mom')" and did "not want to talk to [] mother or see her." Mother asked SSA to assess her sister, E.A., for placement and requested reunification services.
The social worker's addendum report dated November 28, 2016, noted SSA conducted a team meeting on November 10 with the interested parties and reached a "consensus" that F.I. should remain with Alicia with a recommended adoption plan. The social worker would refer the family for services facilitating contact with the maternal family once F.I. was adopted. F.I. was doing well and happy to be placed with Alicia, "as she sees [her] as her mother." Alicia wished "to provide permanency to the child through adoption." Maternal aunt E.A. agreed with placement and permanency with Alicia, noting F.I. referred to Alicia as "mommy."
Mother, however, reported F.I. wanted to be placed with E.A., and complained Alicia told F.I. "your mother doesn't want you," which Alicia adamantly denied. Mother stated she would like to continue to call F.I.
F.I.'s therapist stated F.I. recognized she did not have a maternal relationship with mother, and complained mother "only calls when she needs money." The therapist observed F.I. "looks at Alicia as a mother."
On November 14, SSA received a report E.A.'s husband sexually molested F.I. the weekend before father's death. Another maternal aunt, O.A., telephoned and requested placement. She had not seen F.I. since the child was a few months old, however.
On November 28, 2016, the juvenile court appointed counsel for mother, and directed SSA to assess mother for border visits and monitored phone calls. The court set a hearing for January 2017.
In December 2016, Alicia complained the maternal aunts called excessively demanding to speak with F.I., but F.I. refused to speak with them and blocked their calls. E.A. told F.I. she "bought many gifts for her," but would not give them to her unless she moved in with her. Mother had not called, and F.I. stated she did not want to speak with mother. F.I. stated she did not like talking to her aunts, and did not want to see mother, talk to her, or go to Tijuana.
In January, F.I. agreed to talk to mother on the phone, but she wanted to stay permanently with her "mom" Alicia. She knew "what adoption is and wants it." Mother conceded she had no relationship with F.I., but asked the child be adopted within her family.
F.I.'s therapist did not recommend contact with mother "as [F.I. saw] the mother 'in a negative light'" and blamed her for father's death. F.I. stated "father [] located mother" and went to talk to her, "but 'she only wanted [his] money. After that, [he] started to drink and died."
In February 2017, F.I. reported mother called her and promised her a puppy if she visited her. Maternal aunts O.A. and B.A. also called promising gifts. F.I. repeatedly stated she did not want to live with mother, explaining she was "willing to talk to" mother, but "she did not know her and did not trust her." F.I.'s therapist noted "the effects of having others give or promise" gifts since father's death had "not been all positive" because F.I. "now appears to expect gifts . . . to comply with anything asked of her . . . ." The therapist noted "the child expecting to see the mother in order to get something in return was a 'significant risk.'"
At the permanency review hearing in early March 2017 mother testified telephonically she had been looking for F.I. "all this time . . . ." Mother explained she and father had been living in Las Vegas when she was deported in January 2009 and F.I. was a year and three months old. Father "agreed that when I was going to be sent back [to Mexico], that he was going to come with" her and "bring [F.I.] over." She sent her brothers to look for father in Las Vegas. Later, father told her he had taken F.I. to Alaska and "that is the reason why [mother] never found him." She eventually located father through relatives on social media around July 2016. She did not want F.I. staying "with people that are not related to her by blood, so I want to have her here." Mother stated she had a small house where she and F.I. could live, F.I. could go to school, and she knew a lady who could take and pick up F.I. from school. Father brought F.I. for visit in September 2016, and afterward F.I. called her "almost every day before" father passed away.
The social worker testified she did not recall exactly when she first had contact with the mother, but they had spoken approximately five times. She "made sure" mother knew about the abuse the child had suffered and the services mother would need, including parenting and sexual abuse counseling, individual and conjoint with F.I. She told mother to contact DIF and the consulate for assistance. Mother said she was willing to obtain services and would contact the Mexican authorities. Mother recently stated she had gone to DIF and had signed up for services, but did not specify where she went. The social worker had no confirmation whether mother had gone to DIF or received any services. Usually when someone went to DIF, the Mexican agency contacts the social services agency in California. SSA had approved DIF parenting courses in the past. The social worker authorized weekly monitored phones calls for mother and F.I., but was unable to investigate mother's circumstances because mother failed to provide a physical address.
F.I. and father denied visiting mother in Mexico. F.I. did not want to go with mother to Mexico because she believed Alicia was her mom. The social worker did not believe F.I. should be returned to mother because mother "hasn't known the child for the last eight years," and mother had not "received any services in regards to parenting or to address the abuse" F.I. had endured. The social worker believed placing F.I. with mother would subject F.I. to a substantial risk of detriment.
After the social worker testified, the court allowed mother's counsel to recall mother to testify concerning DIF services. Mother testified she contacted SSA in June or July 2016 "more or less." In late November or December, the social worker told her to go to DIF and to tell DIF to contact SSA and coordinate. The social worker told mother what services F.I. was receiving, but did not talk to her about what services she needed. She filled out DIF paperwork in late December 2016, but DIF told her they had to wait until SSA's social worker called with instructions. The social worker allowed mother to have phone calls with F.I. around October.
F.I. testified she called mother by her first name and she had spoken with her "a bunch of times." She used to call and text her from her "mom's" - Alicia's - phone, but the social worker told her they would take her away from Alicia if she called mother. She did not like speaking to mother, and did not like mother's comments about her father. Mother eventually stopped calling. She admitted seeing mother in September 2016, but did not tell the social worker about the visit because she feared SSA would take her away from father. Asked if she wanted to see mother again, she shrugged her shoulders and said "maybe," perhaps once a year, but she did not like seeing mother, stating it was boring. She did not want to speak with her on the phone, and denied anyone told her mother abandoned her. She did not remember ever living with mother, referred to Alicia as "momma," and wanted to stay with Alicia her "whole entire life until" she was 18.
On March 13, 2017, before the permanency review hearing concluded, the court accepted the parties' stipulation that returning F.I. to mother would create a substantial risk of detriment to F.I.'s safety, protection or physical or emotional well being. (§ 366.22, subd. (a).) The stipulation authorized mother to have four border visits with F.I. and for SSA to make "best efforts." It also authorized monitored telephone and Skype contact two times per week, and directed SSA to submit a referral to DIF regarding services if mother provided a residential address "forthwith," stating it "need[ed] the agency to get on this immediately." The court entered findings and orders based on the stipulation and scheduled a section 366.26 hearing for July 2017.
SSA's report for the section 366.26 hearing recommended terminating parental rights. Termination of mother's parental rights would not be detrimental because mother has not been in the child's life, and the child had not formed a parent-child attachment with her. F.I. was generally adoptable, and the caregivers were "able, committed, and willing to continue to meet" F.I.'s needs by adopting her.
The social worker had contacted the Mexican consulate in March 2017 and requested a referral for services for mother. In June 2017, the consulate stated mother was "receiving the psychological therapies and the classes for parents" and asserted a "home study had been carried out," but the consulate had not received any documentation.
At the section 366.26 hearing on August 7, 2017, mother's counsel submitted on SSA's report, objected to the recommendation, and asked for the less permanent plan of legal guardianship. The juvenile court terminated parental rights, finding it was likely F.I. would be adopted, and termination of parental rights would not be detrimental to F.I.
II
DISCUSSION
Due Process - Parental Unfitness, Notice, Etc.
Mother contends the trial court violated her due process rights when it found clear and convincing evidence of parental unfitness and terminated mother's parental rights. We disagree.
Mother has appealed from the orders made at the section 366.26 hearing. At the section 366.26 hearing, the court determines whether it is "likely the [dependent] child will be adopted . . . ." (§ 366.26, subd. (c)(1).) If so, the court "shall terminate parental rights and order the child placed for adoption," (ibid.) unless the "court finds a compelling reason for determining that termination would be detrimental to the child due to one or more" specified circumstances. (§ 366.26, subd. (c)(1)(B).) Antecedent detriment findings made in the case "shall constitute a sufficient basis for termination of parental rights." (Ibid.) On appeal following the section 366.26 hearing, a parent may not challenge findings and orders made earlier in the case that were separately appealable or otherwise subject to appellate review.
Parents have a fundamental interest in the care, companionship and custody of their children. For this reason, they have certain due process protections in juvenile dependency proceedings. (Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) Before the state may sever parental rights, due process mandates at a minimum that clear and convincing evidence support the state's allegations. (Id. at pp. 747-748.) "California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit." (In re Gladys L. (2006) 141 Cal.App.4th 845, 848, citing In re Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254 (Cynthia D.) "Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, subd. (b)); in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. (§§ 366.21, subds. (e), (f), 366.22, subd. (a).) Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached." (Cynthia D., supra, 5 Cal.4th at p. 253.) "'The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.' [Citation.] The linchpin to the constitutionality of the section 366.26 hearing is that prior determinations ensure 'the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must align itself.' [Citation.]" (Gladys L., supra, 141 Cal.App.4th at p. 848.)
Mother failed to raise the due process issue in the juvenile court. Even if she did not forfeit the claim, the juvenile court made detriment findings at the disposition hearing and each subsequent hearing leading up to the hearing scheduling the section 366.26 hearing. Indeed, in March 2017, mother stipulated placing F.I. in her custody would cause F.I. detriment. We discern no due process violation.
Also under the heading of due process, mother asserts SSA failed to make a reasonably diligent search for her. The court found SSA conducted a reasonably diligent search for mother in conjunction with the disposition on the original and subsequent petitions. Services were bypassed. (§ 361.5, subd. (b).) Mother forfeited the issue because she took no action to set aside the prior orders or to obtain reunification services in the juvenile court. (See § 388.) Nor did she object in the juvenile court at any time concerning SSA's efforts to locate her. (See In re P.A. (2007) 155 Cal.App.4th 1197, 1207-1210 [flaws in predispositional notice forfeited by failure to raise claim in juvenile court]; In re Levi U. (2000) 78 Cal.App.4th 191, 201 [due process challenge to denial of reunification services forfeited by failing to object below]; see In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152-1153.)
Mother faults SSA's search in January 2015 because "SSA spelled Mother's first name incorrectly, and added the last name "G[.]" She asserts SSA's search in November of 2015 was flawed because although SSA "used Mother's correct spelling of her name, and an immigration and customs enforcement search revealed no record for Mother . . . the new search indicated there were 39 possible matches in California, and 205 possible matches using the name Silvia G[.]," and "[n]ot one of the possible matches was investigated." She argues the social worker reported in June 2016 father stated he planned to go to Las Vegas where mother's sister resided to find out if mother's family knew where she lived. Mother states, "At this point, there was no question the social worker knew Mother had relatives in the United States and failed to do anything to locate any of them. Mother and Father had lived together in Las Vegas prior to Mother's deportation." She also cites her testimony at the March 2017 permanency review stating she had family members looking for father, father made statements telling her he had taken F.I. to Alaska, and this hampered her search. Mother notes she has five sisters and three brothers residing in California, and three adult children who lived with F.I. and father in Las Vegas. The children had visited her in Mexico. She claims she was making a diligent search for F.I. from Mexico, but SSA failed to look for family members to ask if they knew where she was.
Mother also complains SSA failed to respond appropriately once she surfaced in the case by recommending or arranging services that might assist her in developing a relationship with F.I. The reasonableness of SSA's efforts is a not a cognizable issue on appeal from a section 366.26 hearing (see fn. 1, ante). We decline to address mother's complaints in this regard.
Mother cites In re Z.K. (2011) 201 Cal.App.4th 51 (Z.K.). There, the father absconded with the couple's infant child for over five years. Mother "never stopped looking for her son" until she discovered the child had been placed in foster care shortly before the section 366.26 hearing. The appellate court held the juvenile court erred by terminating mother's parental rights and ordering a permanent plan of adoption without finding it would be detrimental to place the child in mother's custody.
Z.K. bears scant resemblance to the case before us. Here, the court removed F.I. from parental custody in February 2015. It found detriment under a clear and convincing standard after exercising jurisdiction based on mother's failure to establish a relationship with her child, failure to provide for F.I.'s support and protection, and her unavailability to provide appropriate care. At the 18-month permanency review hearing in March 2017, mother stipulated, and the court found by clear and convincing evidence returning F.I. to mother would create a substantial risk of detriment to F.I.
Mother has filed a petition for writ of habeas corpus (S.A. v. Superior Court, (G055844)) alleging mother's trial counsel was ineffective. We deny the petition in a separate order without issuing an order to show cause. --------
Mother argues trial counsel acted ineffectively by failing to file a section 388 petition. Section 388 provides a parent "may, upon grounds of change of circumstance or new evidence, petition the court . . . to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court." Subdivision (d) of the section provides, "If it appears that the best interests of the child . . . may be promoted by the proposed change of order, modification of reunification services, custody, or visitation orders [etc.] . . . , the court shall order that a hearing be held . . . ." A parent seeking review of a claimed violation of her statutory right (§ 317.5) to competent counsel must show that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law, and that it is reasonably probable she would have achieved a result more favorable to her in the absence of the error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) Mother does not identify which order counsel should have petitioned to change before the section 366.26 hearing. Unlike in Z.K., the issue of detriment was tendered to the juvenile court because mother appeared in the case before the section 366.22 permanency hearing in March 2017. Nothing that occurred after March 2017 suggested a change of order was in F.I.'s best interests. The record does not reflect trial counsel failed to act competently, or that a more favorable result for mother was reasonably probable.
Citing section 361.2, mother argues she had a statutory right to placement. Section 361.2 provides "(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." The court ordered F.I.'s removal under section 361 in February 2015. At that time, mother had been absent from F.I.'s life for many years, and she did not express a "desire[] to assume custody of the child." Section 361.2 does not provide a basis for reversal of the order terminating parental rights.
III
DISPOSITION
The order terminating parental rights is affirmed.
ARONSON, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.