In re C.F. CA3 ( 2015 )

Filed 1/9/15 In re C.F. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
In re C.F., a Person Coming Under the Juvenile Court C074429
Law.
SHASTA COUNTY HEALTH AND HUMAN (Super. Ct. No.
SERVICES AGENCY, 13JVSQ2811702)
Plaintiff and Respondent,
v.
A.F. et al.,
Defendants and Respondents;
G.E.,
Objector and Appellant.
Appellant G.E., paternal grandmother of minor C.F., appeals from the juvenile
court’s jurisdiction and dispositional orders, which included the removal of the minor
from her home and the termination of her probate guardianship of the minor. (Welf. &
1
Inst. Code, §§ 361, 395, 728.)1 She contends there was insufficient evidence to support
removal and termination of guardianship. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second dependency case involving minor C.F., after appellant had
repeatedly left him alone with unfit caregivers, twice resulting in intervention by
emergency responders.
First Dependency Case and Resulting Guardianship
At the time of the minor’s birth in April 2008, his maternal half sibling was a
dependent child of the court and removed from mother’s custody. Mother participated in
drug rehabilitation services, regained custody of the half sibling, and moved into
appellant’s home with the minor’s father.
In November 2008, however, mother was arrested on drug-related charges. Father
also has a history of drug abuse, as well as a gambling addiction. The half sibling was
detained again and Shasta County Health and Human Services Agency (the Agency)
sought to detain the minor as well. Appellant took temporary custody of the minor and
agreed to a safety plan to protect him from his parents. The terms of the safety plan
included that appellant would have a particular named relative, not the parents, provide
childcare while she was at work. Appellant was also to, and did, obtain probate
guardianship of the minor.
On August 4, 2009, emergency personnel rescued the 15-month-old minor who
had been left in a car seat alone in the back of a pickup truck with the (front) windows
open for over 45 minutes. The truck was parked at a casino, in the sun, on a 92 degree
day with no breeze. The minor was screaming and crying, and had no water. He was
treated for heat related injuries. Father had left minor in the car. He had been taking care
1 Further undesignated statutory references are to the Welfare and Institutions Code.
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of the minor for the previous four months from Sunday nights to Friday nights, and had
gone to the casino because he “wanted to gamble five dollars and have a drink.” He was
arrested and charged with child abuse.
Appellant admitted that she only cared for the minor two to three days a week,
rather than full time except when assisted by a relative other than the parents, as the
safety plan had required. She further admitted she knew mother was visiting “freely” at
father’s residence, rather than as arranged by appellant, as the safety plan also required.
The minor was detained, and the Agency filed a section 300 petition on his behalf,
alleging appellant was “unable or unwilling to protect” the minor.
Appellant was provided interim case plan services and began working with
providers to address her codependency and lack of judgment related to allowing father to
take care of the minor. By November 2009, appellant had acknowledged that it was poor
judgment to allow father to take care of the minor. The social worker reported that
appellant had seemed to have “grown” from the situation and appeared to be
demonstrating some boundaries with father. Appellant was, however, contending that the
parents’ visitation with the minor was too infrequent and hoped her guardianship would
be temporary and the parents could regain custody of the minor.
On November 12, 2009, one week before father was to be sentenced on his child
abuse conviction, he left the 18-month-old minor unattended at the family center
following a court authorized visit, instead of waiting for the foster parent to arrive before
leaving or notifying staff. Appellant attempted to justify father’s actions, explaining that
another visiting parent remained to supervise the minor until the foster parent arrived.
On November 19, 2009, father was sentenced to four years in state prison as a
consequence of having left the minor unattended in the casino parking lot. Father’s
criminal history included numerous arrests and several convictions for possession of
controlled substances, receiving stolen property, possession/manufacture sale of
dangerous weapons, petty theft, insufficient funds, possession of a hypodermic needle,
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driving under the influence, and other vehicle code violations. He admitted to the social
worker that he had used methamphetamine as recently as September 6, 2009.
Despite knowing of father’s criminal history, his substance abuse problem, and his
failure to participate in any substance abuse services, appellant continued to assert that
she was unaware father was using drugs, or that there were any concerns regarding his
ongoing supervision of the minor.
In March 2010, appellant underwent a psychological and bonding assessment with
Dr. Reid McKellar. McKellar reported that appellant and the minor had a strong
attachment and bond. However, he noted several areas of concern: (1) appellant failed to
recognize any behavioral patterns that contributed to her own two children’s
dysfunctions; (2) she did not demonstrate insight into her own parenting; (3) she may
have an indulgent parenting style with a tendency to overlook her children’s mistakes and
deficits, and to make excuses for them; (4) she was unable to recall any of the behavioral
or disciplinary lessons from her parenting class; (5) she did not verbalize any of the
benefits from the Al-Anon meetings she had attended; and (6) she exhibited limited
insight into past and present circumstances. McKellar recommended therapy to address
appellant’s codependency and to help her gain insight into her psychological and
emotional blind spots prior to reunification with the minor.
A month after the evaluation, the parties participated in a settlement conference,
after which the Agency withdrew its motion to terminate guardianship. The juvenile
court then ordered the minor returned to appellant’s care under a plan of family
maintenance.
On August 9, 2010, the juvenile court terminated dependency. Appellant had
completed parenting services and completed her therapy sessions with a positive report
from the therapist. Father remained incarcerated but, in anticipation of his future release,
the juvenile court specifically ordered a safety plan that prohibited father from having
unsupervised visitation, prohibited father from living in a home owned or rented by
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appellant, prohibited appellant from allowing father or mother to provide childcare for
the minor, and prohibited visits from occurring in mother’s home. Appellant agreed to
the safety plan.
Second Dependency Case and Resulting Termination of Guardianship
In May 2012, father was released from prison. The superior court’s JALAN
system reflected father listed appellant’s address as his own.
At 7:30 p.m. on March 19, 2013, a police officer rescued the four-year-old minor,
who had been left alone in a car in a Walmart parking lot. Appellant’s grown daughter,
Tanya, (the minor’s aunt) had left the minor in the car while she was shopping. A
concerned citizen had seen the minor alone and, after no one came to the car, called the
police. The police officer waited in the parking lot for 40 minutes, and had Tanya paged
multiple times. When no one came for the minor, he took the minor into protective
custody. Had he not done so, the minor would have been left unattended in the unlocked
car for over two hours.
Tanya had picked the minor up from daycare around 4:00 p.m. and had asked
appellant if she could take the minor to Walmart.2 The minor knew his mother’s
telephone number; when contacted, mother provided the social worker with appellant’s
number. The line remained busy. At 9:41 p.m., appellant called the police station and
explained she had found out the minor had been taken by the police. Father arrived
shortly thereafter, hoping to pick up the minor.
Tanya did not accompany father to the police station because, according to father,
she feared she would be arrested. She later told the police officer that she did not think it
2 Appellant had first asked father to pick up the minor from daycare, but he was
unavailable. We note that the safety plan in place at that time required appellant to
prohibit father from even visiting the minor without supervision, as well as prohibited
him from providing childcare.
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was wrong to leave the minor unattended in the car. The officer told Tanya the minor
had left the vehicle and been wandering the parking lot; Tanya responded that he knew to
stay in the car and he should not have gotten out. Tanya was, however, aware that the
minor had been the subject of a dependency action in 2009 after father had left him alone
in the truck.3
Appellant told the social worker that the minor never stayed with anyone other
than her, father, or mother. With respect to father’s living arrangements, he stayed with
her or with friends. (She later testified that father did not live with her, although he did
occasionally spend the night.) Mother lived with the maternal grandmother and visited
the minor in that home. Father denied that he lived with appellant, but had visited
overnight with the minor in her home. The minor reported that father lived with him.
On March 21, 2013, the Agency filed a section 300 petition on behalf of the
minor. The petition alleged appellant had been unable or unwilling to protect the minor
from abuse or neglect in the home, and that both parents have unresolved substance abuse
problems that placed the minor at risk of harm or neglect. The petition also alleged that
appellant was aware that Tanya suffered from a mental health disability and, nonetheless,
left the minor in Tanya’s care. Appellant and father were reportedly residing at the same
address at the time the petition was filed.
When the social worker interviewed Tanya, who claimed she had lost track of time
while shopping in Walmart, the social worker noticed that Tanya’s thought patterns were
very disjointed. She asked Tanya why she was on disability and Tanya explained that she
had been diagnosed with a personality disorder, but now believed she was suffering from
3 The minor told the social worker that appellant had retrieved him from a stranger in the
past.
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depression.4 Tanya stated that appellant had recently referred her to Adult Protective
Services.
Appellant said that Tanya had taken the minor to the store several times before and
there had never been a problem. Appellant said she had seen no “red flags” to indicate
that Tanya had not taken good care of the minor in the past.
Appellant, however, knew Tanya was on disability for many years but claimed she
was not sure why. She noted that Tanya had intense pain due to a car accident.
Appellant knew that Tanya had children while in her twenties, but they had been
removed by Child Protective Services. Appellant also knew Tanya had a history of
substance abuse, had a lengthy criminal history involving arrests and convictions for
thefts, assaults, and drug-related offenses, and that Tanya had spent time in state prison.
Appellant also admitted she knew that Tanya was having difficulty managing her
medications and that Tanya was trying to get the pain medications--including Cymbalta,
morphine, and methadone--“out of her system.”
On January 31, 2013, Tanya had called 911 for a priest and requested assistance
for “snakes in her uterus.” The next day (February 1, 2013) appellant called the police to
request a welfare check on Tanya because she was not answering her phone or door for
three days but appeared to be home. Later in February, Shasta County Adult Protective
Services had received a report that Tanya was isolating, not taking medication as
directed, and was on a “downward spiral.” Father had told the probation officer who
prepared the sentencing report for his criminal case that Tanya suffers from severe mental
health issues and has psychotic episodes where she hears and sees things that are not
actually present. Mother said that appellant should not have allowed Tanya to care for
4 Tanya subsequently testified that she was diagnosed with a personality disorder around
1993 and told appellant of that diagnosis. She was on disability for both the personality
disorder that led to her depression and the effects of the car accident.
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the minor. When queried as to why, mother became evasive and simply stated that there
must be a reason Tanya was receiving disability.
The contested jurisdiction and disposition hearing was held on June 7, 2013.
Appellant’s counsel requested a continuance of the disposition hearing in order to have
Dr. McKellar perform another bonding assessment. He emphasized that the minor truly
missed appellant. The court noted in response that the issue was the safety of the minor
in appellant’s care. Appellant’s counsel suggested it was important to have expert
testimony and the court responded, “[B]ut the relevancy of the bonding study in light of
the issues that are presented to the Court, can you articulate for me how they would be
relevant?” Appellant’s counsel explained that minor’s strong bond to appellant was
relevant because of possible harm to the minor if he were removed from her.
After hearing testimony from appellant and Tanya relating to jurisdiction, the
court revisited the subject of the bonding study, informing appellant’s counsel that it
tentatively was not convinced such a study would be relevant. Counsel reiterated that he
felt the study was needed to determine the extent of the psychological damage removal
from appellant could have on the minor, which should be considered along with the
minor’s physical safety. The juvenile court declined to order the additional bonding
study, explaining: “The Court recognizes that the [appellant] will remain a paternal
grandmother to the child and will remain in a relationship with the child through this
reunification process and can meet -- visit with the child as we allow grandparents to visit
with the child, so the nature of that relationship will be maintained through these
proceedings. But the safety of the child is paramount to the Court. And the Court feels
that a bonding study would not assist the Court in making the decisions the court needs to
make with respect to [the minor’s] safety . . . .”
The juvenile court sustained the allegations in the petition and terminated
appellant’s guardianship, removing the minor from her home. The minor was declared a
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dependent child of the court and the court ordered reunification services be provided to
both parents.
DISCUSSION
I
Evidence Supporting Removal
Appellant contends there was insufficient evidence to support the order removing
the minor from her custody. We disagree.
A. Standard of Review
A dependent child may not be taken from the physical custody of his parent or
guardian with whom he resides unless the court finds clear and convincing evidence
“[t]here is or would be a substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s or guardian’s physical custody.” (§ 361,
subd. (c)(1); see In re Heather A. (1996) 52 Cal. App. 4th 183, 193.) The court also must
“make a determination as to whether reasonable efforts were made to prevent or to
eliminate the need for removal of the minor.” (§ 361, subd. (d).) “The parent need not be
dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the child.” (In re Diamond
H. (2000) 82 Cal. App. 4th 1127, 1136, overruled on other grounds in In re Renee J.
(2001) 26 Cal. 4th 735, 748, fn. 6.)
Removal findings are reviewed for substantial evidence, drawing all reasonable
inferences to support the findings and noting that issues of credibility are matters for the
trial court. (In re Heather A., supra, 52 Cal.App.4th at p. 193.) Further, evidence of past
conduct may be probative of current conditions, particularly where there is reason to
believe the conduct will continue in the future. (See In re Rocco M. (1991) 1 Cal. App. 4th
814, 824.)
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B. Substantial Evidence of Risk to Minor
As we detailed ante, appellant had repeatedly left the minor in the care of her adult
children, who are unsuitable caregivers. She was aware of father’s criminal history, his
substance abuse problem, and his failure to participate in any substance abuse services.
She originally obtained guardianship and agreed to the safety plan due to father’s failings.
Despite this, she asserted repeatedly that she was unaware there were any concerns
regarding father’s (unsupervised) care of the minor, and she liberally permitted this
contact. After most recent his release from incarceration, she permitted father to live
with her and the minor and continued to permit him to care for the minor, despite a new
safety plan directly to the contrary. Further, she permitted mother to visit the minor in
mother’s home, also in direct violation of the safety plan.
Appellant allowed Tanya to care for the minor, and did not understand the related
concerns, despite the fact that Tanya’s mental disability was readily apparent to father
and mother, and even noticed by the social worker during an interview. Appellant knew
of Tanya’s troubled history and that she was having difficulty with medication
compliance. She had recently called Adult Protective Services regarding Tanya, yet she
treated Tanya as an appropriate caregiver for the minor.
The record in its totality shows that appellant has repeatedly put the minor at direct
risk of harm as a result of her chronic poor judgment as to the suitability of family
members as unsupervised caretakers for the minor. Given the dangerous consequences,
which we have detailed ante, as well as the potentially even more dangerous
consequences of this lack of judgment, there was sufficient evidence of substantial
danger to the minor’s physical and emotional health, safety, and well-being to support
removal of the minor from appellant’s home.
C. Alternatives to Removal
Appellant argues the juvenile court failed to consider alternatives to removal. But
the record reflects that the Agency and court had made reasonable efforts to eliminate the
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need for removal of the minor from appellant’s custody by giving her the opportunity to
engage in services and enter into protective safety plans. Those efforts had not
succeeded, and the risk to the minor continued.
Appellant had completed a parenting program, attended Al-Anon meetings, and
received individual therapy to address her codependency and lack of insight into past and
current circumstances. Nonetheless, as we have described, she consistently failed (or
refused) to recognize her own children’s inability to ensure the minor’s safety.
Continued placement in appellant’s home, even with close supervision and
conditions, was not a viable alternative to removal, due to her apparent inability to
recognize her persistent disregard of the rules. There was no reason to believe appellant
would comply with further restrictions or conditions when she had not complied with the
safety plan already ordered. Nor is it reasonable for a social worker to monitor appellant
and the minor around the clock to insure compliance with the terms and conditions of
custody or exercising good judgment in the minor’s care. Appellant needed to develop
and exercise those capabilities on her own, with the assistance she was getting; she
demonstrated that she could not do so.
On this record, the juvenile court had no alternative but to insure the minor’s
protection by ordering him removed from appellant’s custody.
D. Consideration of Detriment
Appellant argues that in removing the minor from her, the juvenile court failed to
adequately consider the minor’s bond to her and the detrimental impact removal would
have on him. She argues that the court erred in failing to balance the detrimental impact
of removal against the potential risk of harm to which the minor was being exposed. We
find no error.
Preliminarily, we disagree with appellant’s assertion that the juvenile court failed
to even consider the potential detriment removal would have on the minor prior to
entering the removal order. Evidence of potential detriment was presented to the court
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and, on review, we presume the court considered all factors relevant to its decision,
absent affirmative evidence that it did not. (Evid. Code, § 664; cf. In re Steven A. (1993)
15 Cal. App. 4th 754, 765.)
The record was clear that the minor was strongly bonded to appellant. The court’s
decision that a second bonding study was unnecessary to its determination whether to
remove the minor does not signal that the court did not consider this bond in entering its
order. Further, the juvenile court revealed its consideration of the minor’s bond to
appellant (and the potential detriment to the minor of disrupting that bond) when it
explained that the minor would still maintain a relationship with appellant.
In support of her argument that balancing was required, appellant relies on In re
Jamie M. (1982) 134 Cal. App. 3d 530 (parent’s schizophrenia does not support removal,
in absence of evidence of actual detriment to minor resulting therefrom); In re Jeanette S.
(1979) 94 Cal. App. 3d 52 (minor in good health and in no immediate danger from filthy
conditions of home, which could be cleaned and monitored, and trial court had failed to
pursue reunification options before ordering removal); In re Paul E. (1995)
39 Cal. App. 4th 996 (potential hazards listed were trivial and chronic messiness did not
support finding of substantial risk of harm); and Kimberly R. v. Superior Court (2002)
96 Cal. App. 4th 1067 (fact of parent’s mental illness, which was being managed, coupled
with a single instance of parental tardiness in retrieving child from supervised setting,
does not pose substantial risk of harm to the child to warrant removal).
Appellant’s reliance on these cases is misplaced. In each of the cases cited by
appellant, the minors were exposed to potential risks that the appellate courts concluded
were not sufficient to warrant removal of the minor. Here, as we have explained, the risk
to the minor had already resulted to the minor’s being rescued from dangerous situations.
The risk was actual, no longer merely potential as in the cases on which appellant relies.
Here, to the extent that a balancing test is even arguably required, the risk of harm
outweighed the evidence of detriment.
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II
Termination of Guardianship
Appellant contends that substantial evidence does not support the juvenile court’s
order terminating her guardianship. Again, we disagree.
A. Standard of Review
Where a minor is the subject of a section 300 petition, the juvenile court may
terminate the minor’s probate guardianship on noticed motion at any stage of the
dependency proceedings. (§ 728, subd. (a); In re Merrick V. (2004) 122 Cal. App. 4th
235, 253.) A guardian is not entitled to reunification services prior to termination of the
guardianship. (In re Merrick V., at p. 253.) The showing required to terminate the
guardianship is that it would be in the minor’s best interests to do so. (In re Angel S.
(2007) 156 Cal. App. 4th 1202, 1208.)
We review a juvenile court’s order terminating a probate guardianship under the
substantial evidence standard. (In re Merrick V., supra, 122 Cal.App.4th at p. 254.) This
means, among other things, that we resolve all evidentiary disputes in favor of the court’s
rulings and draw all reasonable inferences to support them. (In re Alexis E. (2009)
171 Cal. App. 4th 438, 450-451.)
B. The Minor’s Best Interests
The minor has already been subjected to significant instability in his young life.
He was removed from his parents and placed with appellant under a guardianship at six
months of age. He was then removed from appellant when he was 15 months old, after
having been left alone in the truck at the casino, and remained in foster care for seven
months before returning to appellant. His father, who had been providing the majority of
his care, was incarcerated for two and a half years, and then moved back into his home.
Only three years after returning to appellant’s care, the minor was removed a
second time, for substantially the same reasons. The removal was, again, a result of
appellant’s chronic poor judgment and lack of insight in selecting caregivers, which
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repeatedly placed the minor in harm’s way and continued despite safety plans and court
orders to the contrary.
When, as here, a minor has been repeatedly removed, “at least part of the best
interest analysis must be a finding that further reunification services have a likelihood of
success.” (In re William B. (2008) 163 Cal. App. 4th 1220, 1228.) As we have already
discussed, there was simply no evidence to support a finding that another reunification
with appellant would provide the minor with permanency and stability throughout the
remainder of his childhood. (See id. at p. 1229.) Despite the minor’s strong bond to
appellant, his best interests were not served by merely postponing his chance for stability
and continuity by subjecting him to yet another placement with appellant which was
destined to fail. (Ibid.)
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
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