APPEAL from an order of the Superior Court of Los Angeles County, Zeke Zeidler, Judge. Order is reversed and remanded for further proceedings. (Los Angeles County Super. Ct. No. J910721).
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
In this dependency case (Welf. & Inst. Code, § 300 et seq.),*fn1 Dolly B., the mother of the minor child Scott. B. (Mother and Scott, respectively), appeals from a section 366.26 order that terminated her parental rights. At issue in the appeal is the applicability of a statutory exception to termination of parental rights--the parent-child relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)*fn2 Mother contends the exception applies to her relationship with Scott and therefore the dependency court committed reversible error when it chose adoption as a permanent plan for Scott and terminated her parental rights. She contends the trial court should have identified legal guardianship as the appropriate permanent plan for the minor child.
Our review of the record convinces us that Mother's position is well taken. We will therefore reverse the order that identified adoption as Scott's permanent plan and terminated Mother's parental rights.
1. Initiation of the Case and Mother's First Appeal to This Court
a. Efforts to Avoid Detention of Scott by the Dependency Court
This case commenced in July 2006 with a section 300 petition alleging physical abuse of Scott by his maternal grandmother (MGM) and Mother's failure to protect the child; violence between Mother and Scott's maternal uncle; Mother's neglect of the minor's hygiene; and filthy, unsanitary conditions in the family home where Scott lived with Mother, the MGM, and Scott's two uncles. Scott, who was born on October 10, 1998, was seven years old at the time. Prior to the petition being filed, attempts had been made to resolve the family's problems through the Los Angeles County Department of Children and Family Services (the Department). Scott had been diagnosed through the Los Angeles Unified School District as having characteristics consistent with ADHD (attention deficit hyperactivity disorder) and a need for special education services, and diagnosed through Regional Center as having a "qualifying diagnosis of Autism that is substantially disabling." At the detention hearing on the initial section 300 petition Scott was not detained by the dependency court. Instead the court ordered the Department to provide family maintenance and preservation services, wrap around services, and Regional Center services for Mother and Scott. The court ordered that Scott not be left alone with the MGM.
Prior to the court's adjudication of the initial petition, the Department filed a first amended section 300 petition. As with the initial petition, Scott was not detained by the court at the detention hearing on the amended petition. At the adjudication and disposition hearing on the amended petition the court sustained allegations that Mother has a limited ability to care for the minor which results in a detrimental home environment including dirty and unsanitary conditions; there is aggressive behavior by the MGM and uncle towards Scott and other family members in the family home; and Scott's parents failed to reunify with his siblings who were dependents of the court. The court declared Scott a dependent of the court and made a home of parent (Mother) order with family maintenance services.
b. Detention of Scott Is Ordered
A variety of services was provided to Mother in connection with this case but she had trouble utilizing them and she was not able to discipline Scott and control his behavior. The principal at Scott's school did not believe Mother was capable of caring for the child. Scott had behavior problems at school and problems interacting with his peers; Scott's special education teacher reported the minor's behavior was regressing; and Scott, who has bladder control issues, often came to school dirty and smelling of urine. Scott's court appointed special advocate (CASA) stated in her January 2007 report that Scott and Mother have a very close relationship but Mother was overwhelmed with the child's special needs and was not able to provide him with the type of care and supervision he requires. The MGM continued to be an extremely negative influence in Mother's and Scott's lives, but Mother was unable to find alternative housing because of her health problems and developmental needs. The CASA recommended that the dependency court terminate the home of parent order and place the minor in foster care.
The Department filed a section 342 "subsequent petition" on March 21, 2007, after Scott was found riding a bus for hours by himself and several days later found wandering the streets alone, wearing no shoes, wearing dirty clothes, and smelling of urine. The subsequent petition alleged Mother failed to provide the minor with adequate supervision. This time the court detained Scott in shelter care. Reunification services and concurrent planning for permanent placement were ordered, and Mother was given monitored visitation.
As of March 26, 2007, Scott was in his third foster home and remained placed there. He began attending therapy on a regular basis and demonstrating a willingness to participate in the sessions. Mother was visiting him weekly and he interacted positively with her and enjoyed the visits. Scott told his CASA he liked living with his foster family and would like to live with Mother again. The foster mother reported Scott had adjusted well to her home and his new school, he was learning table manners and learning to eat well balanced meals, and he enjoyed family events and interacted well with the children and adults in the home. His visits with Mother were good and he was heard to tell her he wanted to live with her again but not in the same apartment with the MGM. He indicated he wanted Mother to move out of the MGM's home and have her own place. Members of the wraparound team that had been assembled for him reported that since moving to the foster home the minor was more verbal and communicative, there was a vast improvement in his behavior, and his social skills were improving. The foster parents were giving him toilet training and his bladder control was improving. He appeared to be thriving in their home. Scott told the Department social worker he liked his foster home and his new school. The social worker observed that during Scott's visits with Mother in the park she had little control over him and let him do whatever he wanted. The foster parents reported Scott generally followed their directions.
At the July 9, 2007 adjudication and disposition hearing on the section 342 subsequent petition the court sustained the allegation of Mother's failure to adequately supervise Scott, found that Scott would be at risk in Mother's care, and ordered custody taken from her and Scott placed in foster care. The court found that Mother had failed to reunify with Scott's many siblings and her parental rights had been terminated for some of them. The court further found that Mother had not made reasonable efforts to treat the problems that led to the removal of Scott's siblings, and it was not in Scott's best interest for Mother to be provided with services for reunification with him. However, Mother's monitored visits were continued. Mother filed an appeal challenging the jurisdiction finding, removal of Scott from her care, and the court's denial of reunification services. We heard the appeal and affirmed the disposition order by our unpublished opinion filed on April 1, 2008.
2. Dependency Activities Subsequent to Mother's First Appeal
a. September 2007 Matters
A September 2007 report from the CASA states the CASA interviewed Scott, the foster mother and various social workers for the report. The CASA noted that living with the foster family had brought immense changes in the minor. When the CASA would visit with the minor prior to his removal from Mother's home he was very withdrawn, practically non-verbal, did not express his feelings with words but instead would growl and thrash about, lacked social skills and struggled with social interaction, did not attend school on a regular basis, and lacked adequate toilet training. Since living with the foster family he had become "quite verbal and expressive," appeared to be comfortable with the adults in his life, was seeing to his own hygiene and personal care, was interacting well with the other children in the home, and was attached to his foster sister.
The foster mother reported Scott did very well in summer school. He was having difficulty adjusting to the new school year but it was getting better. He no longer was wearing pull-ups during the day, only at night. His weekly visits with Mother continued. They were visiting at a park. The foster mother stated the minor's behavior regressed during the visits and he reverted to his old ways of growling and whining and it took awhile for his behavior to adjust when he returned home to the foster family.
The foster family agency social worker was meeting with Scott on the days he had his visits with Mother and she witnessed his regressive behavior. She stated he was very bonded with his foster family. Another social worker spoke with Scott's parents and explained to them that if a family member was willing to adopt the child then the parents could continue to have a relationship with him. Mother did not want to discuss that, but Scott's father (Father), who sometimes came to Scott's visits with Mother, was open to it and stated he would contact the social worker.
The CASA stated Scott referred to the foster family as his family and he liked living with them. However Scott wanted to know when he could resume living with Mother. Scott stated the MGM was still living in the apartment and Mother was doing okay. The CASA opined in her report that although the minor continued to ask when he could return to Mother's care, it was clear that Mother does not have the capacity to provide an adequate home for him, and adequately care for him and protect him, despite the numerous services that had been provided to her. The CASA recommended that the court order adoption as the permanent plan for the child.
A combined review hearing under section 366.21, subdivisions (e) and (f) was held on September 25, 2007. At that hearing the court set a section 366.26 hearing for January 23, 2008.
b. The Initial Section 366.26 Hearing
In her January 2008 report the CASA stated Scott told her he was doing great, he likes his teacher, but he does not like homework. He was attending a combined third-fourth grade special education class. He told the CASA about the foster family's birthday celebration for him, the presents he received for Christmas, and the decorations on the foster family home. The foster mother reported the minor continued to thrive in her home and his teacher was pleased with his progress. He continued to visit with Mother on a weekly basis and his behavior often regressed after the visits, with growling and whining. The foster mother stated Mother was sharing too much inappropriate information with Scott about her life and it seemed to burden the minor. Scott did not mention Mother during the week and did not show an interest in calling her.
The CASA reported that Scott only mentioned Mother to her to share past experiences, and he continued to refer to his foster family as his family. He went to an adoption fair in November 2007 with a Department adoption worker. The foster mother stated her family would be his foster family for as long as necessary but the family was not considering adopting him at that time. She was concerned about the foster home's close proximity to Mother's home because Scott was a different child when he was around Mother.
The Department's report for the January 23, 2008 section 366.26 hearing states Scott continued to have wraparound services including weekly individual therapy, and it was reported that he was beginning to be better able to discuss his feelings, thoughts and emotions and was working toward developing tools to enable him to discuss core emotional issues. He was considered by the Department to be adoptable. The adoption social worker reported Scott is personable and outgoing, and he "has some special needs which will need to be considered in an adoptive match." He was reported to have been diagnosed as a high functioning autistic child. He was assigned to a special needs adoption recruiter "due to his needs and family background." The report states "[t]here are many opportunities for recruitment for Scott. DCFS is confident these efforts will result in an adoptive match for Scott." No relatives had been identified for possible placement. Mother continued to visit with Scott on a regular basis at the park, where he would greet her with a hug and play on the play ...