In re Geraldo Q.

Filed 2/16/07  In re Geraldo Q. CA4/1

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COURTOF APPEAL, FOURTH APPELLATE DISTRICT

DIVISIONONE

STATEOF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, PeterE. Riddle, Judge.  Affirmed.

            Gregory A. appealsfrom an order of the juvenile court placing his minor son, Geraldo Q., in an out-of-state-foster homefollowing a post-permanency planninghearing.  Gregory contends that the court abused its discretion by orderingthe out of state placement.  We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

            In September 2003, the San Diego County Health and Human ServicesAgency (Agency) filed a petition in the juvenile court on behalf of 10-year-oldGeraldo under Welfare and Institutions Code section 300, subdivision (b).^[1] The petition alleged that Gregory attempted to leave Geraldo alone at hisschool during a school break while Gregory went across the border into Mexico. When school officials refused to keep Geraldo in their care, Gregory leftGeraldo unattended at a local fast food restaurant.  Police officers arrived atthe restaurant and discovered that Geraldo was unsupervised.  The officers tookGeraldo to Polinsky's Children's Center (PCC). 

            In its detention report, the Agency reportedthat Gregory had a significant number of previous referrals alleging generalneglect of Geraldo.  Most recently, Geraldo was admitted to PCC because Gregoryhad left him unattended for several hours at a shopping mall while Gregoryslept in his car.  When social workers questioned Gregory as to why he had goneto Mexico and left Geraldo behind at the restaurant, Gregory indicated that hewent to Mexico to look for his daughter.  He claimed that his daughter had beenkidnapped and forced into prostitution.  In September 2003, the court held adetention hearing and received the Agency's reports in evidence.  The courtfound a prima facie showing had been made on the allegations of the petition,and detained Geraldo in out of home care.  The court ordered that Gregorysubmit to a psychologicalevaluation. 

            The Agency included in its jurisdiction and disposition reportinformation pertaining to Gregory's lengthy criminal history, dating back to1964.  In addition, Gregory had been involved with Child Protective Services in Washington State.   In an interview with social workers, Gregory appeared tobe preoccupied with scenarios involving kidnappings, espionage, and smugglingpeople across the international border between the United States and Mexico. Gregory was also preoccupied with his belief that his daughter had been kidnappedand told social workers that he intended to rescue her.  The social workerbelieved that Gregory's emotional and physical state rendered him incapable ofproviding Geraldo with a safe and stable home.  It appeared to the socialworker that Gregory was dealing with mental health concerns that requiredprofessional evaluation and treatment. 

            The social worker recommended that Geraldoremain in out-of-home care and that the court provide Gregory with additionaltime to submit to a psychological evaluation.  In October 2003, Dr. Armentaconducted Gregory's psychological evaluation.  The evaluation revealed thatGregory suffered from a delusional disorder and a personality disorder.  Dr.Armenta believed that because Gregory did not trust other people, it would bedifficult for Gregory to benefit from court ordered reunification services. 

            The court held a contested jurisdiction anddisposition hearing in November 2003.  The court sustained the allegations ofthe petition, declared Geraldo a dependent under section 300, subdivision (b),and removed him from Gregory's custody.  The court ordered that Gregory complywith his case plan. 

            During the next six months, Gregory visited withGeraldo once a week in a supervised setting.  Gregory did not participate inparenting classes or individual counseling.  However, he did participate in aforensic parenting evaluation.  During the evaluation, he exhibited oddbehaviors and reported that court personnel were involved in a conspiracyinvolving the cover up of the murder of the chief of police.  Gregory continuedto allege that his daughter had been kidnapped, and later stated that he hadrestrained his daughter in a hidden location.  The doctor believed Gregorysuffered from paranoid and delusional thinking and recommended that Gregory beadministered antipsychotic medication.  The social worker recommended that thecourt continue services for an additional six months in an effort to determinewhether medication would assist in stabilizing Gregory's mental health.  At thesix-month review hearing, the court agreed with the Agency's recommendation.  Afterfinding that Gregory had not made substantive progress with his case plan, thecourt ordered that Gregory be provided an additional six months ofreunification services.

            The 12-month report indicated that Gregory hadcompleted a parenting class but that he had told social workers he had notlearned anything new from the class.  Gregory consistently visited with Geraldoon a weekly basis and showed interest in meeting with his son.  However,Gregory's housing situation remained unstable and he continued to suffer fromunresolved mental health issues.  Specifically, he told the social worker thathe had smuggled immigrants into the United States in exchange for informationabout his daughter's whereabouts.   During his visits with Geraldo, Gregorywould tell Geraldo that his sister had been abducted by gang members who had "puther to work."  Geraldo told social workers that these conversations madehim uncomfortable.  The social worker instructed Gregory to use discretion whentalking with Geraldo.  The social worker observed that Geraldo displayedaffection toward his father and seemed to enjoy the visits.  At the conclusionof the visits, Geraldo would tell his father that he loved him. 

            At the 12-month review hearing, the court foundthat Gregory had not made substantive progress with the provisions of his caseplan and that returning Geraldo to his father's custody would be detrimental. The court terminated reunification services and set a selection andimplementation hearing under section 366.26.^[2] 

            The assessment report filed by the Agency beforethe section 366.26 hearing recommended that a permanent plan of "AnotherPlanned Permanent Living Arrangement" (APPLA) be pursued on behalf ofGeraldo.  Geraldo opposed adoption, and legal guardianship was not a viablelong term plan because Geraldo was not a United States citizen.^[3] 

            By the time of the section 366.26 hearing,Gregory had not visited with Geraldo for about three months.  During this time,Geraldo remained with the same foster family he had been living with for about18 months.  Geraldo enjoyed living with his foster

family.  He continued to dowell in school and remained active in team sports.  Geraldo regularlyparticipated in therapy, and his therapist believed he had made progress indealing with previously identified anxiety and self-esteem issues. 

            After considering the Agency's reports, thecourt found that Geraldo was adoptable.  However, it determined that thesection 366.26., subdivision (c)(1)(B) exception applied to terminating Gregory'sparental rights in view of Geraldo's age and his objection to adoption.^[4] The court did not terminate parental rights.  Instead, the court identifiedAPPLA as the permanent plan for Geraldo.  The court ordered that Geraldo remainplaced in a licensed foster home and scheduled a six-month non-appearancepermanency planning review hearing. 

            The Agency submitted a six-month status reportand an addendum report to the court before the scheduled post-permanencyplanning hearing.  In these reports, the Agency recommended that Geraldo remainplaced in out of home care under the APPLA.  Geraldo's foster family of twoyears had recently given notice to the Agency that they would no longer be ableto care for him.  The Agency requested that Geraldo be placed with anon-relative extended family member who lived in New Hampshire and who hadindicated a willingness to have Geraldo placed with her on a long term basis. 

            The reports further indicated that Gregory hadnot visited with Geraldo for almost six months and that Geraldo expresseddisappointment with his father's failure to visit him.  Geraldo hadparticipated in unsupervised visits with his uncle in Washington.  The socialworker summarized Geraldo's visits with his uncle and noted that Geraldoenjoyed the visits and appeared sad when they ended.  Geraldo's uncle proposedto the Agency that his friend, Vera, take care of Geraldo.  Vera had metGeraldo during Geraldo's visits with his uncle and informed the social workerthat she was very interested in caring for Geraldo on a long term basis.  TheAgency commenced an Interstate Compact for Placement of Children (ICPC) homestudy to evaluate Vera's home in New Hampshire.  The social worker discussedwith Geraldo the possibility of his moving to New Hampshire to live with Vera. Geraldo's therapist reported that Geraldo was "very hopeful" aboutmoving to New Hampshire.  Geraldo indicated that he was 70 percent in favor ofmoving to Vera's home and 30 percent wanting to stay in San Diego and beclose to his father. 

            In May 2006, the court held a special hearing toaddress Geraldo's placement with Vera.  The court heard testimony from socialworker Tamara Meyer and from Geraldo.  Ms. Meyer testified that Gregory hadresumed visitation with Geraldo, but that there had been a six-month periodduring which there had been no visitation.  Ms. Meyer represented that she hadworked closely on Geraldo's case for about seven months.  She said that duringthe past five months, Geraldo had expressed his willingness to move out ofstate and live with Vera.  Vera had traveled to San Diego three or four timesspecifically to visit and spend time with Geraldo.  Between visits, Vera hadsent letters and gifts to Geraldo.  Geraldo indicated that even if he were tomove out of state, he wanted to maintain contact and visitation with Gregory. 

            Geraldo testified that he was aware of therequest that had been made to allow him to move out of state to live withVera.  When asked how he felt about the request, Geraldo stated that he agreedwith the request.  Geraldo further testified that he had visited with Veratwice, he enjoyed spending time with Vera, and he felt safe in her home. Geraldo told the court that he would love to be with Gregory, but if that wasnot possible and he were to live with Vera, he wanted to continue to see hisfather every couple of months, talk to him by telephone a few times a week, andsend him e-mails.  Geraldo did not want the court to terminate Gregory'sparental rights, and stated that seeing his father two times a year would notbe sufficient. 

            When questioned as to how he felt about movingout of state, Geraldo testified that he was about 65 percent "happy"with his decision to move to Vera's home.  In order to be 100 percent happywith his decision, Geraldo explained that he would have to take care of his "unfinishedbusiness."  He added that until he finished his business, he would like tostay in San Diego.  His "unfinished business" consisted of earningstraight A's on his report card and saying goodbye to an old friend he had metin a previous foster home.  If he were able to take care of all his business,Geraldo testified, he would be ready to go to live with Vera.  He did not knowhow long it would take for him to finish his business, but estimated that itcould take up to one year. 

            After hearing the witnesses' testimony andarguments of counsel, the court emphasized that its order would not terminateGregory's parental rights to Geraldo.  Rather, the order would address Geraldo'splacement.  The court ordered that Geraldo move to live with Vera, but notuntil the end of the school year, and only after Geraldo had the opportunity tofinish some of this unfinished business, including getting straight A's andlocating his old friend.  The court acknowledged Geraldo's desire to maintaincontact with Gregory, and ordered that the social worker arrange for a minimumof three visits a year between Geraldo and Gregory.  In addition to in-personcontact, the court directed the social worker to arrange telephonic and e-mailcommunications between Geraldo and Gregory. 

DISCUSSION

Thecourt did not abuse its discretion by ordering Geraldo placed out of state

            Gregory claims that the court did not properlyexercise its discretion when it authorized the placement of Geraldo in an outof state foster home.  He contends that Geraldo wanted to live with him, andthat placing Geraldo out of state would negatively impact their relationship.

            A trial court'sruling should not be disturbed on appeal unless an abuse of discretion isclearly established.  (In re Michael B. (1992) 8 Cal.App.4th 1698; Inre Corey (1964) 230 Cal.App.2d 813, 832.)  As one court has stated, when acourt has made a custody determination in a dependency proceeding, " 'areviewing court will not disturb that decision unless the trial court hasexceeded the limits of legal discretion by making an arbitrary, capricious, orpatently absurd determination [citations].' "  (In re Geoffrey G.(1979) 98 Cal.App.3d 412, 421.)  " 'The appropriate test for abuse ofdiscretion is whether the trial court exceeded the bounds of reason.  When two or moreinferences can reasonably be deduced from the facts, the reviewing court has noauthority to substitute its decision for that of the trial court.' " (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblinv. Brattain (1988) 44 Cal.3d 474, 478-479.)

            Following the termination of reunification services, if the minor isin a placement other than a legal guardianship, the court shall conductperiodic post-permanency planning review hearings.  (See section 366.3,subdivision (e).)  At the hearing, the court is to consider the child's safety(§ 366.3, subd. (e)) and "determine [t]he continuingnecessity for and appropriateness of the placement."  (§ 366.3,subd (e)(1).)  In addition, the court "shall consider all permanencyplanning options for the child including whether the child should be returnedto the home of the parent, placed for adoption, or appointed a legal guardian,or, if compelling reasons exist for finding that none of the foregoing optionsare in the best interest of the child, whether the child should be placed inanother planned permanent living arrangement."  (§ 366.3, subdivision(g).)  After the termination of reunification services, the parents' interestin the care, custody and companionship of the child are no longer paramount.  Rather,at this point "the focus shifts to the needs of the child for permanencyand stability."  (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

            The recorddemonstrates that the court did not abuse its discretion by placing Geraldo inan out of state placement with Vera, a non-relative extended family member.^[5] The court considered all the permanency planning options available to Geraldo,including adoption and guardianship.  The court found that Geraldo wasunadoptable because Geraldo objected to adoption, thus precluding thetermination of Gregory's parental rights.  (see § 366.26, subd. (c )(1)(B).) Although Geraldo expressed that he wanted to live with Gregory, returningGeraldo to Gregory's care and custody was not a viable option.  Reunificationservices for Gregory had been terminated in December 2004.  Since that time,Gregory continued to suffer from mental illness, had not participated intherapy sessions, and had ceased visiting Geraldo on a regular basis.  Inconsidering a legal guardianship as a long term arrangement, the court wasadvised that such an arrangement was not possible because of Geraldo's statusas a non-United States citizen. 

            Based on thesecircumstances, the court properly considered another planned permanent livingarrangement that consisted of Geraldo moving out of state to live with Vera.  (See§ 366.3, subdivision (g).)  While moving to New Hampshire to live with Verawould mean that Geraldo would no longer live in close proximity to Gregory,Geraldo testified that he agreed with the plan for him to move and live in Vera'scare and custody.  During the five months preceding the post-permanencyhearing, Geraldo expressed an interest and willingness to live with Vera, whowas willing to provide long term care for Geraldo through adulthood.  Thesocial worker reported that Geraldo sounded hopeful at the idea of moving, andGeraldo testified that he felt safe at Vera's home.  The social worker furtherreported that Geraldo had prepared a list of pros and cons in weighing the ideaof having to move out of state to live with Vera.  The list indicated thatGeraldo was 70 percent in favor of living with Vera.  At the review hearing,Geraldo reaffirmed his interest in moving after he had taken care of his "unfinishedbusiness."

            Following thehearing, the court in its order specifically directed that the social workerensure that Geraldo would have the opportunity to attend to some of his "unfinishedbusiness."  In addition, the court recognized the importance of honoringGeraldo's desire to maintain a relationship with Gregory even though Gregorydid not always consistently visit with Geraldo.  The record demonstrates thatby January 2006, Gregory had not visited with Geraldo in about six months, and thattelephone contact was infrequent.  Even when their visits were consistent,Gregory often was late to visits and had to be reminded not to discussinappropriate subjects that would upset Geraldo.  Nonetheless, the courtordered that Gregory and Geraldo have at least three in-person visits a year,have regular telephone contact, and be allowed to e-mail each other. 

            The courtproperly assessed all relevant factors and determined that placing Geraldo inVera's long term care was the most appropriate and viable option.  It wouldprovide Geraldo with a sense of permanency and stability that he deserved whileallowing him to maintain contact with Gregory.  The court did not abuse itsdiscretion.  (See § 366.3, subdivision (e).)

DISPOSITION

            The order isaffirmed.

AARON, J.

WE CONCUR:

                          McCONNELL,P. J.

                                   McINTYRE,J.

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