In re Charles N., A121373 (Cal. App. 4/13/2009)

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In re Charles N., a Person Coming Under the Juvenile Court Law LAKE COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. George N. et al., Defendants and Appellants.

A121373

Court of Appeals of California, First Appellate District, Division Two

April 13, 2009

Not to be Published in Official Reports

Appeal from the Lake County Super. Ct. No. JV-320145.

RICHMAN, J.

These three appeals are by the parents and grandparents of a boy taken into the juvenile dependency system before he was a year old. The dependency concluded with the termination of both parents' rights as to the child. Through this entire period, the grandparents unflaggingly sought to have the child placed with them, even if the reunification efforts of the parents were not successful.

The parents, who have filed separate and lengthy briefs, present numerous arguments looking to overturn the order terminating their parental rights. Many of these arguments are joined by the grandparents. These arguments will not prevail, and we shall affirm the termination order.

The primary goal of the grandparents' appeal—and in this they are joined by the parents—is to overturn the placement order made at the same time as the termination order. They earnestly insist that the juvenile court abused its discretion in maintaining placement with the foster parents who were prepared to adopt, arguing that what the court should have done was shift placement to a member of the family, most obviously the grandparents themselves. Although we sympathize with the family's frustration at not getting custody, we are unable to conclude that the juvenile court exceeded the bounds of reason by leaving the minor with the extraordinarily-qualified foster parents who had cared for him since he was detained.

BACKGROUND

The minor, Charles N., is the son of George N. (Father) and N.P. (Mother). Anthony N. is the father, and M.J.N. is the mother, of George; they are thus Charles's paternal grandparents (Grandparents).

On Friday, September 22, 2006, the Lake County Department of Social Services (Department) filed a petition in which it was alleged that Charles qualified as a dependent child under Welfare and Institutions Code section 300, subdivision (b).¹ The majority of the 15 specific allegations concerned Mother's and Father's drug use and inability for provide for Charles. It was also alleged that Father was "on parole for sex charges."

Also on September 22, the juvenile court held a brief hearing on the Department's request that Charles be detained. The reporter's transcript of the hearing shows that Mother, Father, and Grandparents were present. The hearing opened with the court explaining to those present that the bailiff was "giving you a brochure" about "juvenile dependency proceedings." Attorney Karen Evans of the Lake County Public Defender's Office, stated that "I will represent the mother. Mr. Wiley can represent [the father]." Ms. Evans was specially appearing for Mr. Wiley because he was on vacation until the following Monday. The court inquired "In terms of detention, is it submitted at this point in time?" Ms. Evans replied "Yes." After ascertaining that Father's mailing address was the same as the Grandparents', the court took judicial notice of "the file" and ordered Charles detained in the Department's custody. The court further stated, "An inquiry has been made by the Lake County Department of Social Services regarding the Indian Child Welfare Act eligibility, and that act does not apply."² The court then set the jurisdictional hearing for October 16.

By October 16, 2002, the court had filed the Department's jurisdiction report in which it noted that "The mother . . . was a dependent of the juvenile court as a minor,"³ and that Father, in addition to being on parole, "Is currently incarcerated at the Hill Road Correction Center in Lakeport" following arrest on September 27 for a parole violation and possessing a controlled substance for sale.⁴

On October 16, the court was informed by Mr. Wiley that he had represented the Mother "as a de[p]endant child herself," and this would "necessitate[] a change I think." Without objection from Father, who was "present in custody," or the Grandparents, who were also present, the court allowed Mr. Wiley and Ms. Evans to exchange assignments: Ms. Evans, originally appointed for the Mother, would now represent the Father, and vice versa for Mr. Wiley. The court ascertained that Ms. Evans had not yet interviewed Mother.

Mr. Wiley requested a continuance of the hearing to October 23. When the court inquired "So there's no problem with a one-week continuance from everybody's perspective?," Ms. Evans replied that father "has a problem with it, but it has more to do with placement"; both he and Mother "want[] the child placed with the grandparents, his parents." There followed some discussion about "normal checks and clearances," including fingerprint checks. The court determined that this was not a reason for not continuing the hearing to the 23rd, but it told the grandparents to "keep in contact" with the Department.

On October 23, Mother, Father, and the Grandparents were present for the jurisdictional hearing. Father testified about the circumstances of his recent arrest, for which he would be in court the next day. He also testified about Mother's "fits of anger" and "mood disorders"; that he was working when Charles was taken into custody at the maternal grandmother's house; and that the allegation that he failed to provide food for Charles was incorrect. Father admitted that "I'm on parole for unlawful sex with a minor," and that he was convicted of "drug charges" in " '97, '96."

Department social worker John Griffith testified briefly about the circumstances of the initial investigation of Charles on September 19. Ms. Evans, counsel for Father, wanted to cross-examine "only about placement," but the court ruled that such a subject was "not correct at this proceeding[]."

Grandfather testified that there was food for Charles at Father's house at the time Charles was taken into custody at the maternal grandmother's house; Grandfather knew this because he drove Father, who had no means of transportation, to the store to buy food two days before the Department investigated on September 19.

Social worker Griffith retook the stand and testified that when the Department did a follow-up investigation on September 20, Charles was attended only by Mother and a female friend, both of whom were believed under the influence of methamphetamine.

When the court inquired if any party had any further evidence, Father's counsel Ms. Evans stated: "No evidence, Your Honor. But my understanding was last time we were in court that the grandparents were going to be assessed and their house was going to be looked at. I was wondering what became of that. Specifically, the grandparents that are here in the courtroom." Counsel for the Department advised the court, "I don't have any current information on that. The social worker's not the one doing the assessment. Everything was turned over to them last week is my understanding and that it's in progress."

Grandfather then addressed the court: "Well, on Tuesday we were told that it was turned in to the worker that was supposed to come out and check the house. Then again when we were called Thursday, as you told us to do last week, Your Honor, you told us to keep calling, we were told, oh, it was done Thursday instead of on Tuesday. And when we—the guy called this morning to come out and check our house, he was very rude with me, first off. [¶] Secondly, he says, `Well, what do you want me to do, not even come?' This is no way for a CPS worker to work. They were told to come out last week by you yourself, Your Honor. Either they're not—they've made every excuse to make sure that the child wasn't put back in our home so far. And we want to know why."

The court learned from the Department that "the maternal grandmother also has asked for placement," and that "the LiveScans" had "been done as to grandparents." Without addressing this issue, the court then sustained virtually all of the allegations of the petition. The court also expressed its opinion that it found "hard to believe that the father is leaving the child well supervised with a person he doesn't even know the last name of and who is adjudged to be under the influence of meth when the police arrive for one of the home visits."

The court then set November 6, 2006, for the dispositional hearing, at which time "I'm hoping that CPS then will finish checking out both grandparents' houses. That will be one of the issues at disposition . . . ." At that point Grandfather interjected "That means we have to wait until after the 6th to get the baby back into the family?" At that point counsel for the Department changed what he had just told the court; he now learned that "The LiveScans came back and they're favorable to both. [¶] . . . [¶] . . . So CPS will move forward with the placement options." The court then told Grandfather: "What they're saying, sir, is the child may be placed in one of your cares, one of the grandparents' houses. It could be sooner than November 6. It doesn't have to wait to that point."

In its disposition report the Department noted under "Problems Requiring Intervention and Possible Causes: [¶] The father is incarcerated and unable to make appropriate arrangements for the care of his child. [¶] The father has a history of drug abuse that interferes with his ability to adequately meet the needs of his child. [¶] The father is a registered sex offender. [¶] The mother has a history of drug abuse that interferes with her ability to adequately meet the needs of her child. [¶] The mother has poor impulse control and explosive fits of destructive rage."

Under "Family's Perception of Their Needs," the social worker noted: "According to the father he is currently in custody pending the...