In re Cassandra Q.

Filed 3/16/07 In re Cassandra Q. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.

Steven L. Berman, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.). Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

___________________________________________________

Appellant, father Freddy Q., appeals the order terminating parental rights to his daughters, Cassandra Q. (born June 2003) and Dana Q. (born February 2005). Appellant contends the juvenile court erred in terminating parental rights because the Department of Children and Family Services (DCFS) improperly denied him visitation rights, thereby depriving him of the ability to establish a statutory exception (Welf. & Inst. Code,  366.26, subd. (c)(1)(a))^[1]to termination of parental rights.

However, no evidence supports the assertion that visitation was wrongfully thwarted by DCFS, which was given discretion to deny monitored visits to appellant, who had caused severe physical and emotional trauma to the children. We thus affirm the order terminating parental rights.

FACTUAL AND PROCEDURAL SUMMARY

In November of 2005, DCFS filed a dependency petition. ( 300.) The first count in the petition alleged that appellant engaged in violent physical conduct with the mother, such as stabbing the mother with a knife on one occasion and tying her to a chair and holding her and Cassandra hostage in the family home. The second count alleged that on November 25, 2005, appellant drove his car while under the influence of methamphetamine, resulting in a fatal automobile accident (on Highway 5 in Kern County). As a result of the accident, the mother died and Cassandra, who had not been placed in a proper child restraint, required surgery for fractures on both legs. Additional counts alleged that appellants emotional and mental problems limited his ability to care for his children, and that his drug abuse rendered him incapable of providing his children with regular care and supervision.

DCFS placed Cassandra and Dana with a maternal aunt, Maria A., and her husband, Antonio A., both of whom live in Los Angeles.^[2] According to the aunt, in June of 2003, appellant would not let the mother out alone and kept her and Cassandra hostage in their bedroom. Then, from July of 2004 through January of 2005, appellant locked the mother and Cassandra in the bedroom. In January of 2005, the mother left appellant and went to live with the aunt and uncle.

The aunt also indicated that appellant did not believe Dana was his child. Rather, he believed the mother had been impregnated by a spirit that lived in their home. Also, appellant beat the mother when she found drugs in the home and hit her in the stomach when she was eight months pregnant. Appellant was incarcerated four months for beating the mother.

Prior to the fatal car accident in November of 2005, the children and the mother lived with the maternal aunt and uncle for approximately nine months. The maternal aunt and uncle had a strong bond with the girls and were willing to adopt them.

The maternal uncle, Alejandro M., advised the DCFS social worker that he had lived with appellant and the mother from June of 2004 until January of 2005. While he lived with them, he overheard appellant hitting the mother and verbally abusing her. He generally tried not to intervene, but on several occasions, he did get into a fight with appellant to protect his sister.

In late January of 2005, the uncle and two friends helped the mother escape from appellant. When they arrived to assist in the escape, they found the mother tied to a chair in the middle of the living room and Cassandra sleeping on the floor next to her. Both the mother and Cassandra were dirty, and the house smelled like mold and was stuffy from lack of outside air.

Appellant confronted the uncle outside the house and threatened to call the police, but the uncle took the mother to the hospital for medical treatment. Appellant had lightly stabbed the mother in the stomach, and she almost lost the baby. Because the mother was in this country illegally, she thought she could not confront appellant. Corroborating the information by the aunt and uncle about appellants abusive conduct, a Kern County newspaper article described appellants arrest for beating the mother and threatening to kill Cassandra and her unborn sister.

At the initial juvenile court hearing on December 7, 2005, the court ordered appellant to stay 100 yards away from the children, the maternal aunts home, and the hospital and doctors who were treating Cassandra after the car accident. The court also ordered appellant, for whom it had appointed legal counsel, not to have any visits with the children. The court found that any visits would be detrimental to the children because it appeared appellant was responsible for the mothers death and for severe injuries to Cassandra, noting that there were also allegations of substantial domestic violence.

On January 17, 2006, DCFS filed an amended petition alleging that the injuries to Cassandra constituted severe physical abuse, and that appellants conduct in tying the mother to a chair and locking her and Cassandra in a bedroom for over six months constituted acts of cruelty. The juvenile court dismissed the original petition, directed that DCFS give notice to appellant of the next hearing date on February 1, 2006, and ordered that appellant be removed from state prison for that hearing.

A DCFS report prepared for the February hearing indicated that the children remained with their maternal aunt and uncle. Appellant denied threatening to kill the mother, or threatening her with a knife. He also denied failing to properly restrain Cassandra in the vehicle at the time of the accident, and denied being under the influence of any substance at the time of the accident. He claimed to have been clean and not taken any drugs for two years.

However, appellants blood test taken soon after the fatal accident revealed the presence of methamphetamine at a level indicated to be strong. Also, the maternal aunt related to DCFS that appellant had admitted to her that he had forgotten to strap Cassandras legs in to the car seat and that was why her legs were broken in the car accident. The aunt doubted that appellant wanted to care for his daughters, because she recalled a time when the mother was alive and appellant had asked the aunt if she would take care of the girls permanently because he really wanted to be only with the mother.

As of the February DCFS report, submitted on January 30, 2006, appellant had not visited the children since the date of the accident on November 24, 2005. In addition to the charges against appellant related to the car accident, appellants criminal record included a 2005 arrest for inflicting corporal injury on a spouse, threatening a crime with intent to terrorize, exhibiting a weapon not a firearm, and false imprisonment. The social worker recommended that appellant not receive reunification services, and a contested hearing ensued.

At the hearing on March 7, 2006, DCFS offered into evidence the detention report dated December 6, 2005, the jurisdiction and disposition report dated February 1, 2006, and a document entitled information for court officer, which summarized an interview with a police officer at the scene of the car accident and contained copies of newspaper articles which related appellants prior abusive conduct toward the mother. Appellants counsel objected to all the statements attributable to the aunt, and in particular to hearsay statements made by the mother to the aunt. The court excluded statements made by the mother to the maternal aunt, holding that the mothers state of mind was not relevant to the dependency proceedings. However, the court did admit the mothers statements to her brother, that she was afraid of appellant due to his domestic violence against her, as evidence of the mothers state of mind. The court also refused to admit evidence of a newspaper account that the mother was beaten by appellant, ruling it was hearsay on hearsay.

However, the court did admit into evidence the remainder of the social workers reports. The county counsel rested its case based on the documentary evidence presented, noting that the social worker was available for questioning by appellant. Appellants counsel moved to dismiss the petition. County counsel emphasized that the uncle had witnessed appellant beating the mother, and the childrens counsel argued that witnessing appellant beating the mother was an act of cruelty against the children.

The court struck the mothers statement that appellant had threatened to kill her and the children, but found that the uncle had seen the mother tied to a chair. The court further found that the uncle had witnessed the mother being beaten by appellant and had seen stab wounds on her stomach. It also deemed appellants driving under the influence of methamphetamine in complete reckless disregard of the safety of his children and his family. As the court concluded, I dont think theres any doubt [appellant] knew or should have known he was endangering the childs life; and, in fact, he eventually wound up killing the mother and severely injuring the children. And, again, its apparent [appellant was] too stoned to deal with the childs safety seat, too stoned to deal with the driving.

The court sustained the dependency petition. It found true the allegations that the children had suffered or were at a substantial risk of suffering serious physical harm from appellant ( 300, subd. (a)), who had failed to protect them from serious physical harm ( 300, subd. (b)), had inflicted severe physical abuse on a child ( 300, subd. (e)), and had subjected the children to cruelty ( 300, subd. (i)). Specifically, the court found true the allegations that appellant had endangered Cassandra regarding the car accident, and that appellant had a history of physical altercations with the mother, including stabbing her with a knife when she was pregnant, tying her to a chair, holding her and Cassandra hostage inside the home, and repeatedly striking the mother in the presence of Cassandra. However, the court struck those allegations of the petition which alleged appellant had threatened to kill the mother, had been arrested for corporal injury to a spouse, and had a history of drug abuse, though it found appellant was a current abuser of methamphetamine, which rendered him incapable of providing the children with regular care and supervision.

Moreover, the juvenile court found appellants statement to the aunt true that he had failed to failed to completely buckle the strap on Cassandras car seat, which led to the childs fractured legs and bruises, supporting the finding of severe physical abuse ( 300, subd. (e)) and the denial of family reunification services ( 361.5, subd. (b)(5) & (b)(6)). The court further advised appellant that he had to seek any relief from its order by way of an extraordinary writ and noted that the clerk had given appellant a written statement of his appeal rights.^[3] There is no indication in the reporters transcript or the clerks minute order of the March 7, 2006, proceedings of any modification or requested modification of the courts prior order that appellant was not permitted to have any visits with the children.

On June 29, 2006, DCFS filed its section 366.26 report with the juvenile court. As indicated in the report, the maternal aunt and uncle were very attached to the girls and committed to providing them with a stable and loving environment and wanted to adopt them. Appellant was not able to visit the children at the maternal aunts home because of the courts restraining order. The social worker recommended termination of appellants parental rights.

At the hearing on June 29, 2006, the juvenile court put the section 366.26 hearing over to August 30, for completion of the home study on the maternal aunt and uncle. Appellants counsel then asked that appellant be permitted to have weekly, one-hour monitored visits with the children, based on counsels understanding, which he acknowledged could be wrong, that appellant was to have at least one hour of monitored visits per week, even though the minute order doesnt reflect that. However, when counsel for DCFS reviewed her notes, she indicated that on December 7, 2005, there had been a no-visitation order; appellants counsel did not dispute that fact or that the order had not been changed.^[4]

The court thus indicated that since there was an existing no-visitation order, appellant had to show a change in circumstances to change the existing order. Appellant stated he would file a section 388 petition to secure visitation rights. The court then changed the prior restraining order of December 7, 2005, to a permanent restraining order . . . in full force and effect until December 6, 2008. As the court explained, That was no contact with the kids or the [caretakers], other than court-ordered visitation, and that should be in the restraining order. As specified in the clerks minute order of that proceeding, appellant must stay at least 100 yards away from caretakers and children except during court ordered visits, and DCFS has the discretion to allow one hour a week monitored at DCFS office with appellant.

The DCFS social workers report of August 30, 2006, contained a recent letter from the childrens therapist that recommended against appellant having visits with the children. The therapist believed that contact with appellant would be re-traumatizing for the children and the visits with him should be postponed indefinitely. According to the therapist, both children had posttraumatic stress disorder due to physical and emotional abuse, as well as from witnessing the severe domestic violence appellant had inflicted on the mother. The social workers report also indicated that the home study for the aunt and uncle had been approved, and it recommended no visitation with the children and termination of appellants parental rights.

At the hearing on August 30, 2006, appellants counsel advised the juvenile court that appellant had no visits with his children because he has not been able to establish contact or a schedule with the social worker, in part because of a problem [ ] scheduling with the caretakers. Appellants counsel also indicated that although appellant had contacted him three times in the last three months, the matter was not brought to the courts attention and it had been nine months since appellant had last seen his children. The court found it would be detrimental for the children to visit with appellant and denied any further visits. Counsel for DCFS then stated that the restraining order currently in effect indicates monitored visits at the DCFS office only, and asked the court if that portion of the restraining order would be vacated. Counsel for the children urged that appellant not be allowed any visitation because it would be traumatizing for the children. The court responded that it did not want enforcement of the restraining order as it was written, and then suggested, Why dont you give me a duplicate, and try to get that line whited out. I know something has to go to CLETS [California Law Enforcement Telecommunications System], an amended restraining order.

On September 20, 2006, at the contested section 366.26 hearing, DCFS offered its reports into evidence, and they were admitted without objection by appellant. Counsel for appellant made an offer of proof as to appellants testimony if he were called to testify: that he had played a significant role in the lives of the children, having raised them with the mother; that he loved the children and believed there was a significant bond between himself and the children; and that termination of his parental rights would be detrimental to the children. Both county counsel and the childrens counsel stipulated to this offer of proof.

Regarding the significant role in the childrens lives that appellant alleged, the juvenile court remarked that at the time the case started the older child was just over two years of age, and the younger was just 11 months old. The court reiterated its earlier findings, that appellant had a violent relationship with the mother, had used methamphetamine, and had been involved in a car accident causing the mothers death and severe injuries to Cassandra. Appellant has had no visits with the children. When counsel for appellant remarked that appellant had been precluded from visiting, the court noted that appellant had not even been living in the area where the children resided, and that the reason for appellants lack of visitation was legally irrelevant.

The court concluded that appellant could not show any detriment to the children if his parental rights were terminated because he had not visited the children. The court found that the children would be traumatized just by seeing the father, which provided additional evidence that there was no bond and that appellants contact with the children would be detrimental to them. The court then found by clear and convincing evidence that the children were adoptable, and it terminated appellants parental rights.

DISCUSSION

Pursuant to the dependency statutory scheme, it is well settled that the present situation constituted a sufficient basis for termination of appellants parental rights, unless there was a compelling reason for determining that termination would be detrimental to the child such as, for example, if the parent had maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c))(1)(A); see In re Celine R. (2003) 31 Cal.4th 45, 52-54.) According to appellant, the juvenile court denied him of his substantive due process liberty interest in parenting his children, because DCFS improperly denied him visitation rights, depriving him of the ability to establish the above statutory exception to the termination of his parental rights.

The burden is on the parent to establish the existence of one or more of the statutory exceptions to section 366.26. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. (In re Celine R., supra, 31 Cal.4th at p. 53, original italics.) Here, appellant basically argues that DCFS wrongfully obstructed his visitation rights and thus denied him the opportunity to make an argument against termination of parental rights, which the court might have theoretically accepted.

There are several fundamental problems with appellants claim of improper obstruction with visitation by DCFS. First, the assertion is premised only on the argument of appellants counsel at the August 30, 2006, hearing. It was not supported by any evidence whatsoever. Even at the September 20, 2006, hearing when appellants counsel made an offer of proof as to what appellant would testify to, the offer of proof did not include any factual assertion relating to DCFSs purported improper thwarting of visitation.

Moreover, even the argument of appellants counsel acknowledged that appellants lack of contact with the children was because part of the problem was scheduling with the caretakers. To the extent there were scheduling issues with the caretakers, obviously such problems do not support a claim of wrongful obstruction by DCFS.

Most significantly, as indicated in the clerks minute order of December 7, 2005, although the restraining order required that appellant stay at least 100 yards away from [the] caretakers and children except during court ordered visits, restricted visitation was permitted with DCFS [having] the discretion to allow one hour a week monitored at [the] DCFS office. (Italics added.) The DCFS social worker and the childrens therapist concluded that appellants visits would be detrimental to the children, who suffered physical and emotional abuse and posttraumatic stress disorder from witnessing the domestic violence appellant inflicted on the mother. Thus, there is no basis for appellants claim of wrongful denial of visitation by DCFS, because it had the discretion to deny visitation by appellant and had ample justification for doing so.

DISPOSITION

The order under review is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] Although appellant apparently resided in Grass Valley in Northern California, the juvenile court in Los Angeles County found that it had jurisdiction over the petition because the children had been released to the custody of the aunt and uncle in Los Angeles County.

^[3] On April 20, 2006, this court dismissed appellants petition (case No. B189789), filed pursuant to former California Rules of Court, rule 38.1.

^[4] Actually, the terms of the December 7, 2005, did not state no-visitation, but rather constituted a restraining order requiring appellant to stay at least 100 yards away from the children and their caretakers.