In re Jesse R.

Filed 3/5/07 In re Jesse R. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Jesse R., Sr., appeals from orders terminating his parental rights (Welf. & Inst. Code,  366.26) to his three children.^[1] In large part, he claims the court never found him to be an unfit parent so that the termination order violated his due process rights. Appellant also contends the court should have found termination would be detrimental to the children based on his relationship with them. Finally, appellant argues the court should have appointed each child separate counsel due to what appellant perceives to be a conflict of interest at the termination stage. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In July 2003, appellant was sentenced to serve a five-year-prison term for transportation of a controlled substance (Health & Saf. Code,  11379). Remanded to custody, appellant left behind his wife and their three young children, who were then three-, five- and six-years of age. Appellant has remained incarcerated ever since and is not scheduled to be released until the summer of 2007.

By August 2004, respondent Stanislaus County Community Services Agency (the agency) detained the children because there was no one to care for them. The mother was homeless and abusing drugs. The maternal grandmother, who had provided a home for the children for the last year, was no longer able to care for them due to health issues. For appellants part, he too had a history of substance abuse, including his 2003 felony conviction. Also, he could not arrange for the childrens care during his incarceration.

Consequently, the agency initiated the underlying dependency proceedings, alleging that the children came within the description of section 300, subdivisions (b) and (g) based on the conduct of each parent.

At a combined jurisdictional and dispositional hearing in September 2004, both parents knowingly waived their rights on the record and submitted the matter of jurisdiction on the agencys social study. Relevant to this appeal, the social study contained appellants admission that the biggest problem in providing care for his children was housing and his drug abuse. There was also evidence in the record that appellant could not arrange for the childrens care while he was incarcerated.

At the same hearing, the Stanislaus County Superior Court made the requisite findings to adjudge the children dependents and remove them from parental custody. The court also ordered reunification services for both parents. In the case of appellant, services depended largely on what was available to him at Sierra Conservation Camp, his place of confinement. The prison had a parent education program appellant could attend. In addition, he would be eligible to participate in the prisons substance abuse program once he served two years of his sentence. The court also ordered once-a-month visits at the prison between appellant and his children.

In September 2005, after 12 months of services, the court terminated reunification efforts for appellant. Although he completed the parenting program and eventually commenced participating in the prisons substance abuse program, he would nonetheless be unable to reunify with the children within the statutory time remaining for reunification efforts. Thereafter, in February 2006, the court terminated services for the mother, who failed to adequately address her substance abuse. The court in turn set a section 366.26 hearing to select permanent plans for the three children.

Over the course of their dependency, the children lived in multiple placements. Sometimes, all three could not be placed together. Each of the children also required counseling at one time or another to deal with behavioral problems. Roughly one month before the scheduled section 366.26 hearing, the agency placed the children with a foster parent who was committed to providing all three of them with a permanent home. However, she requested a period of adjustment to get to know the children better before committing to a specific permanent plan of either legal guardianship or adoption. Meanwhile, the oldest child stated he did not want to be adopted by the current foster parent but wished to live with her and his siblings. The two children said they would like for the foster parent to adopt them and to continue having their older brother live with them.

At the originally-scheduled, section 366.26 hearing, the court found good cause to continue its permanency planning for the children until mid-summer. In the course of the hearing, appellant requested a bonding study to determine whether it would be detrimental to the children for the court to terminate his rights. According to appellant, the children had regularly visited with him, the visits went very well and the children wanted to continue seeing him. In response to appellants request, the childrens counsel asked for the opportunity to clarify. She explained:

Judge, I would like to clarify. Their first choice is to go with the parents. They are under the impression, based on statements that have been made to them, that that is going to be happening in the near future. Based on that impression with the children they have -- while they are very happy where they are now, they have expressed to me if they are not able to go back with their parents, they would like to stay with [the foster mother]. They are happy and they have asked her if they will be able to see their parents if they were to be adopted. [The foster mother] has told them that she does want them. The foster mother has told them that she wants them. She wants to have all three of them with her. I think at this point, because of information that the children have been getting, that theres some confusion as to the reality of their situation.

She also expressed concern that the children had been subjected to a number of comments from the grandmother and the parents with regard to their impending return to the parents which in counsels view significantly interfered with their ability to form attachments to their caregiver and gave them unreasonable expectations. Counsel in turn asked that visits be supervised.

The court granted appellants bonding study request with the proviso that if the prison would not give a psychologist access to complete a bonding study, it would not hold the agency responsible because access would be up to the prison. Based on a similar rationale, the court would not order supervised visits. However, it did specifically direct the grandmother and the parents, all of whom were present in court, to refrain from discussing the childrens future with them.

By the time of the continued hearing, the agency reported the current foster parent was willing and able to adopt all three children. They had developed a close attachment to one another. Consequently, the agency recommended that the court find the children adoptable and terminate parental rights. In the meantime, no bonding study had been performed. The agency learned from a psychologist and supervisor with a childrens agency that it would be inappropriate to conduct a bonding study with the contact between the parent and the children limited by a glass partition in a jail setting.

At the continued section 366.26 hearing in late July 2006, the agency submitted the matter on its reports. Counsel for the children offered the parties stipulation that appellants attorney had recently interviewed the two older children. The oldest child indicated he wanted to be adopted. The younger one did not wish to be adopted but wanted to continue to have contact with his parents and his maternal grandmother.

Thereafter, appellant called a number of witnesses to establish his record of pleasant monthly visits with the children. At the prison, those visits, which averaged a couple of hours, occurred in an open area where the children and appellant could have contact. According to the grandmother, who had facilitated most of the visits, the children looked forward to their visits and were affectionate with appellant. They would tell him what they were doing. At the end of visits there were hugs and maybe a few tears. Appellant also wrote frequent letters to the children. The children, however, did not want to write back. Appellant testified he opposed termination of his rights because he hoped to reunify with his children upon his prison release in 2007. He also stated that he took good care of the children before he went to prison in 2003.

On cross-examination, the grandmother testified that the children seemed very happy in their foster mothers home. To the extent they missed their biological family, the grandmother explained the children missed mostly her, not their parents. At this point, they knew her better than they knew appellant. Before the children were detained in the summer of 2004, she took care of them and they had not been visiting with their father in prison. Furthermore, since she had known appellant, he had been in and out of prison.

On his cross-examination, appellant admitted to having violated parole twice since 1995, each time resulting in incarceration for approximately eight months. He also testified that upon his release he planned to reunite with the childrens mother.

Following argument, the court found the children adoptable and rejected appellants argument that adoption would be detrimental to them based on their parent-child relationship. The court in turn terminated parental rights.

DISCUSSION

I. Appellants Non-Offending Parent Claim

Appellant contends the courts termination order violated his due process rights because there was no finding, let alone clear and convincing evidence to support a finding, that he was an unfit parent. As appellant sees it, he was a non-offending parent who has lost his parental rights due to his incarcerated status, not his inability to parent.

Before a state may terminate the rights of parents in their natural child, due process requires that the state support its allegations by at least clear and convincing evidence. (Santosky v. Kramer (1982) 455 U.S. 745, 747-748 (Santosky).) California's dependency system comports with the rule in Santosky because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court musthave made prior findings that the parent was unfit. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) It is not the purpose of the section 366.26 to show parental inadequacy. (Ibid.) Instead,

[t]he 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. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.)

Among those findings in Californias dependency scheme are the courts jurisdictional findings followed by its findings by clear and convincing of ongoing substantial risk of detriment to warrant a dependent childs out-of-home placement.

To support his claim of non-offending parent status, appellant: essentially demurs to the jurisdictional allegations pertaining to his conduct; challenges the sufficiency of the evidence to support those allegations; and argues his wifes conduct, not his, was the cause of the childrens detention. As discussed below, we are not persuaded by appellants non-offending parent claim and therefore conclude there is no basis for his due process argument.

As a procedural matter, appellants contention fails because the time to complain regarding the pleading and proof underlying the juvenile courts exercise of dependency jurisdiction has long since passed. The juvenile court exercised its dependency jurisdiction at a September 2004 hearing. However, appellant never demurred to the agencys pleading either before or at the jurisdictional hearing. Neither did he contest the evidence supporting the courts jurisdictional findings nor did he assert any claim of non-offending parent status in the trial court. Rather, he knowingly waived his rights and submitted the case on the agencys social study. Thus, he failed to preserve such issues. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)

Moreover, the juvenile courts exercise of dependency jurisdiction was reviewable by appeal from its disposition in September 2004. ( 395, subd. (a); In re Candida S. (1992) 7 Cal.App.4th 1240, 1249.) Appellant, however, did not appeal. Thus, the jurisdiction findings are final and are res judicata. (In re Daniel D. (1994) 24 Cal.App.4th 1823, 1832-1833.) Consequently, appellant forfeited his opportunity to contend he was a non-offending parent and may not so complain now. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563 [An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed].)

In any event, appellants contention fails as well on the merits. By appellants own acknowledgement, his inability to provide regular care due to his substance abuse brought the children within the courts jurisdiction under section 300, subdivision (b). As he wrote in a September 2004 letter to the social worker:

The biggest problem in providing care for my children is housing and my drug abuse, which Im currently trying to work through.

The record also establishes that the children came within the courts jurisdiction under section 300, subdivision (g) because appellant was incarcerated from the outset and could not arrange for their care. He had left them in the nominal care of their mother who was unable to provide for them. Moreover, once the children were detained, he offered no viable options. At most, appellant suggested to the agency that his former employer could care for the children or that the maternal grandmother should have the children. However, when the agency contacted the former employer, he declined, stating he and his wife were unable to provide care. In addition, although the maternal grandmother wanted to help, she was unable to care for them.

Thus, we conclude there is no merit to appellants due process claim under Santosky that he was never determined to be an unfit parent.

II. No Detriment

Next, appellant claims the court erred when it declined to find termination would be detrimental to the childrens best interests. According to appellant, he was entitled to such a finding because he presented evidence that he had maintained regular visitation and contact with his children, who were sufficiently attached to him, so that they would benefit from the continuing relationship ( 366.26, subd. (c)(1)(A)). As discussed below, we disagree.

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (Id. at p. 1351.) On review of the record, we find no abuse of discretion.

In this case, appellant no doubt established that he maintained regular visitation and contact with his children throughout their dependency. Indeed, the court acknowledged in its ruling that appellant had tried to be a dad to these kids even while incarcerated. However, as the appellate court explained in In re Derek W. (1999) 73 Cal.App.4th 823, 827, a parent must do more than demonstrate frequent and loving contact, an emotional bond with the child, or that parent and child find their visits pleasant.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, appellant introduced no such evidence. We note in particular that neither he nor the childrens grandmother testified to any harm the children might suffer if rights were terminated. In addition, although a bonding study was not possible in this case due to appellants incarcerated status, we observe the two older children still had counselors at the time of the section 366.26 hearing. Those counselors conceivably had information, if not opinions, which had a bearing on this issue. However, according to the record, appellant never sought any report or testimony from the counselors on the detriment question.

Accordingly, we conclude the juvenile court did not abuse its discretion by rejecting appellants detriment claim.

III. Childrens Counsel

Appellant also argues, and for the first time, that the childrens counsel had an actual conflict of interest such that the court should have appointed separate counsel for each child. To support his argument, appellant relies on the older childrens conflicting wishes regarding adoption and their counsels presentation to the court. As appellant reads the record, his oldest son went back and forth on his feeling toward adoption, his second son was very adamant that he did not want to be adopted, and counsel improperly attempted to balance the childrens interests when she advised the court that the childrens first choice was, of course, to reunify with their parents, but that not being the case, then they were prepared to be adopted. Thus, from appellants perspective an actual conflict existed between the two older children so that their counsel should have asked to withdraw.

We disagree with appellants characterization of the record and thus find no merit in his argument. Initially, according to the social worker, the oldest child did not want to be adopted by his foster parent while the younger son did. According to the parties stipulation, however, the boys switched positions. The older son expressed a wish to be adopted while the younger son did not want to be adopted. Such evidence hardly supports appellants claim that his oldest son went back and forth on his feeling toward adoption, while his second son was very adamant that he did not want to be adopted. At most, this record shows both of appellants sons vacillated, albeit not in unison, in their remarks about adoption. Furthermore, as their attorney explained to the court more than once, the children had been led to expect that they would be able to reunify with their parents which only heightened their confusion. Such a record does not compel an inference, let alone a conclusion, that there was a conflict of interests among the two brothers.

In addition, appellant takes counsels statement to the court out of context. The childrens counsel, who was charged by statute with advising the court of her young clients wishes ( 317, subd. (e)), was so advising the court. The childrens counsel stated:

I have had extensive contact with these children in their placement in Waterford. The children have been doing extremely well in this placement. They have become fully integrated into the family. And when I have visited them prior to them being here at court, they have all expressed the desire to be adopted.

Their -- I will be clear that their first voice was, of course, to reunify with their parents, but that not being the case, then they were prepared to be adopted. And that has been a consistent expression of their wishes; although, they did not express that wish -- [the younger son] did not express that wish on the 27th.

It is my feeling that these children -- theyre wonderful children. They are extremely well integrated, as I said, into the family. It is an adult decision, and I would offer to the Court that based on their age and experience and emotional development, that in the -- their best interests, that their feelings be augmented by a recommendation in their best interest, and I do support the adoption.

She later added that their mother in particular had continued to tell the children it was likely they would be reunited and so the children, in counsel words, have held out that hope. Now that is not an -- that is no longer an option, the children are ready to go forward and be in a more permanent plan.

In reading this record, we note that no one questioned counsels remarks as an attempt to balance conflicting interests nor was any claim of conflict made. Instead counsel merely advised the court, as she is required to do, regarding her understanding of her clients wishes. Having reviewed the record, we conclude there is no support for appellants claim on appeal.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.