In re Jose C.

188 Cal.App.4th 147

114 Cal.Rptr.3d 903

10 Cal. Daily Op. Serv. 11,660

2010 Daily Journal D.A.R. 14,078

In re JOSE C., A Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v. D.C., Defendant and Respondent;N.C., Intervener and Appellant;Jose C., Appellant.

No. B221562.

Court of Appeal, Second District, Division 8.

Sept. 2, 2010.

Christopher Blake, San Diego, under appointment by the Court of Appeal, for Intervener and Appellant N.C.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Appellant Jose C.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Defendant and Respondent.

GRIMES, J.

*151 SUMMARY

The child, Jose C., and the maternal grandfather in this dependency case challenge the juvenile court's order terminating the mother's parental rights. The order must be reversed, they say, because (1) the court erred in finding Jose was likely to be adopted, and (2) the court should have found the grandfather to be Jose's presumed father (even though the court was not asked to do so), a finding that would have allowed the grandfather to assert the "continuing beneficial relationship" exception to termination of parental rights. We find no merit in these contentions and affirm the order terminating parental rights and freeing Jose for adoption.

FACTUAL AND PROCEDURAL BACKGROUND

Both Jose and his mother are developmentally delayed, and both receive assistance from government entities (referred to as regional centers) that provide services to developmentally disabled persons. Jose, who was then seven years old, first came to the attention of the Department of Children and Family Services in November 2006, when it was alleged mother physically abused Jose. Because the family was receiving services from the regional center that included in-home supervision, the department did not remove Jose from the home. But, despite receiving intensive services, including 24-hour in-home supervision, parenting and anger management classes, mother made minimal progress and continued to use inappropriate physical discipline.

On June 14, 2007, after an incident in which it appeared that Jose had been hit in the eye, either by a pencil or his mother's hand, the department detained Jose. The juvenile court sustained the allegations that mother used inappropriate physical discipline and that mother was developmentally delayed and unable to provide appropriate care and supervision for Jose. (Welf. & Inst.Code, § 300, subds. (a) & (b).) The man who mother identified as Jose's father had no contact with Jose, and the father's whereabouts are unknown. Jose was placed in foster care.

A long series of hearings ensued, including dispositional, six-month review, 12-month review, and permanency planning hearings. While mother was well-intentioned, and strong bonds existed between Jose and mother (and between Jose and his maternal grandfather), mother was unable to learn to control her behavior. Her parental rights were terminated and Jose was freed for adoption. Below, we summarize pertinent facts relating to mother, Jose, grandfather, and Jose's caretaker (the prospective adoptive mother).

1. The mother

Jose's mother has the cognitive ability of a five-year-old and functions socially at the level of an 11-year-old. She lacks the capacity to learn anger management and appropriate parenting skills, and is unable to provide care for Jose without constant supervision.

In a court-ordered psychological evaluation, Dr. Daniel Kramon concluded that mother was well-intentioned with Jose, but unable to control her inappropriate, impulsive statements to him (and that, with respect to hitting Jose, "this issue will likely be an ongoing struggle for her to control herself"). Kramon characterized the relationship between mother and son as "more similar to a peer type relationship than that of a mother/child relationship." While there were "many deficits" in the mother's parenting abilities, Kramon's August 13, 2007 report indicated that Jose appeared "very closely bonded with [mother] and if Jose were to be separated from her for an extended period of time, there could be a risk of significant emotional detriment."

The department's report in August 2007 also included its interviews with Dr. Mayra Mendez, a therapist who had treated mother for several years when mother was younger and who had begun treating her again about 15 months earlier. Mendez observed that, based on Jose's level of need and mother's level of retardation, the mother had "zero capacity" to handle Jose's multiple problems.¹

2. Mother's relationship with grandfather

Jose and his mother lived with the maternal grandfather for the first six years of Jose's life, until October 2005, when mother moved out with Jose. Mother claimed that grandfather used to physically abuse her. The department asked Dr. Mendez about the relationship between mother and grandfather. Mendez reported that mother lived with grandfather until mother made allegations that he was physically abusing her and taking her money, "which according to Dr. Mendez, she [mother] not only reported to her [Dr. Mendez], but to regional center...." According to the department's report, Dr. Mendez said that "if maternal grandfather is doing 'good' in mother's eyes, such as providing her with transportation, then mother is in good stance with him, otherwise, mother will not remain in contact with him." ²

3. The grandfather

In March 2008, the department and grandfather discussed the possibility of placing Jose in grandfather's home. Grandfather reported he was staying in a friend's garage that did not have an indoor restroom or a room for Jose; such a home would likely not receive the necessary approval for placement of a dependent child. Grandfather told the department that he had a flexible schedule to care for Jose if Jose were placed with him; he owned a tow truck and worked side jobs as a mechanic, and could use respite care from the regional center for Jose when he needed to work. Grandfather also told the department that his daughter did not want Jose placed with him because she (mother) does not want to move in with him "as she likes her freedom." Grandfather elected not to have his home assessed for placement as he did not think it would be approved.

Grandfather sought de facto parent status on several occasions beginning in March 2008.³ A de facto parent is someone who has assumed the role of a parent on a day-to-day basis for a substantial period; a de facto parent may be present at hearings concerning a dependent child, may be represented by retained counsel (or at the court's discretion, by appointed counsel), and may present evidence ( In re Patricia L. (1992) 9 Cal.App.4th 61, 66, 11 Cal.Rptr.2d 631), but does not have the rights of a parent. Finally, in July 2009, the court (over the department's opposition) granted grandfather's request for de facto parent status, observing that the request presented the court with "a very, very mixed bag" but that such motions were to be liberally construed.

4. The prospective adoptive mother

In August 2007, about seven weeks after he was detained, Jose was placed in the home of foster parent A.A., where he has remained throughout these proceedings. (Jose was initially placed in another home, but the foster parent there "was overwhelmed with the behavioral problems that Jose was presenting with....") A.A. wants to adopt Jose, who has thrived and adjusted well in her home.

When Jose was first placed with A.A., he was not toilet trained. By June 2008, A.A. reported that "Jose has [come] a long way and ... he is able to go to the restroom on his own and is able to identify his needs." A.A. reported that Jose "continue[d] to improve at school as teachers report to her that [Jose] is doing better as he can recognize most letters, colors, and numbers." By July 2008, Jose reported that "I want [A.A.] to be my other mom. She helps me a lot." The department's April 2009 report indicated that Jose and A.A. had developed a strong attachment to each other, and Jose had also developed a strong bond with three of A.A.'s adult children with whom he had daily contact, and with her adopted son.

At a hearing in September 2008, mother's counsel told the court that mother was inclined to accept an adoption for Jose if it were an open adoption, though she needed to know the terms of such an arrangement. A.A. indicated she was also interested in ensuring that Jose and his mother maintain contact after an adoption, but preferred any postadoption contact to be monitored. A postadoption contact agreement was signed in February 2009, and included provisions for regular face-to-face and phone contact between mother and Jose.

The department's report in April 2009 stated A.A. believed it was important that Jose maintain a relationship with his birth mother. But A.A. and mother (according to the report) believed it would not be in Jose's best interest to continue having visits with his grandfather, "due to grandfather being aggressive towards mother and Jose in the past."

5. Jose

Jose has been diagnosed as having attention deficit hyperactivity disorder (for which he takes medications) and mild mental retardation. When he was detained, he was receiving therapeutic counseling services. Though he was almost eight years old, he did not use the toilet for bowel movements. Dr. Mendez, who had also treated Jose and supervised his previous therapist, said that he appeared to be functioning at the age of a three- to four-year-old. Sonia Lopez began providing Jose with individual therapy in late August 2007. By March 2009, Jose had "decreased negative social interactions" and was able to make friends at school. By December 2009, Lopez had stopped meeting with Jose, because he was stable and no longer in...