IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 23, 2011
IN RE B.B., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
R.B., DEFENDANT AND APPELLANT.
Super. Ct. No. JD220385
The opinion of the court was delivered by: Hull , Acting P. J.
In re B.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
R.B., the father of the minor B.B., appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references that follow are to the Welfare and Institutions Code.) Appellant contends the juvenile court committed prejudicial error by failing to consider the minor's wishes when terminating parental rights. We affirm the order.
FACTS AND PROCEEDINGS
The five-year-old minor was placed in protective custody in January 2010 after he was discovered living with his mother and her boyfriend in a trailer deemed uninhabitable due to numerous health and safety hazards. In January 2010, the Sacramento County Department of Health and Human Services (DHHS) filed a petition seeking jurisdiction over the minor pursuant to section 300, subdivisions (b) and (j).
The parents have an extensive child welfare history. Of the mother's seven children, all but the minor tested positive for methamphetamine at birth. The mother lost custody of her other six children due to her drug use. In April 2004, the juvenile court sustained a dependency petition for the minor pursuant to section 300, subdivisions (b) and (j), based on the parents' substance abuse. The dependency was terminated in November 2004 after appellant and the mother completed services and reunified with the minor. The juvenile court sustained another dependency petition in November 2005, after the mother was found with a syringe loaded with methamphetamine within reach of the minor's car seat, at which time the mother and appellant were incarcerated. The dependency was terminated in October 2006 after the parents reunified with the minor.
Appellant had been the minor's sole caregiver since the child was one-and-a-half years old. Even though appellant knew the mother's history of methamphetamine abuse, he placed the minor with the mother in September 2009 when he turned himself in to prison. He wanted to leave the minor with his girlfriend, but the mother threatened to call the police if he did.
Appellant has a lengthy criminal history dating back to 1984, with numerous felony convictions for drug and theft-related offenses. He was serving a three-year prison term for felony vehicle theft when the petition was filed in 2010.
The minor was placed in a foster home following his detention. According to the foster father, the minor was a bright child, but could count only to four and did not know the alphabet. He alternated between being a sweet, loving child, and angry and hostile with a large vocabulary of swear words. The minor was terrified to leave the foster home and told the foster father that appellant would "kill" him. Seeing the foster father wearing a belt, the minor asked him: "Are you going to hit me with that?"
The foster father said the minor always had dark circles under his eyes, along with serious anger, self-esteem, and fear issues. The minor was seeing a behavioral therapist for numerous issues, including: bed wetting, pants wetting, aggressiveness, swearing, tantrums, yelling, spitting, lack of social skills, fear of the toilet and the dark, nightmares, irritability, teasing others, whining, repetitiveness, anxiety, arguing, back-talking, defiant behaviors, learning appropriate peer interaction, multiple redirection, fascination with soap and water, and fear of someone coming to get him.
The minor told the foster father that appellant "can kick your ass." According to the mother, the minor was afraid of the toilet after appellant "beat the heck out of him" for causing the toilet to overflow. The foster father witnessed the minor's fear of the toilet; every time the minor flushed the toilet he would say "oh no the water, the water" and was scared to sit on the toilet.
DHHS filed an amended dependency petition (§ 300) in March 2010. The petition alleged the mother's history of drug use, DHHS's inability to locate her, appellant's incarceration, and the mother's child welfare history.
The minor was interviewed by a social worker in March 2010. According to the minor, appellant, whom he calls "Bobbie," "calls me an idiot and a dummy and he says 'you're not in charge.'" When the minor gets in trouble, appellant "beats me up and kicks me out of the house." The minor stated "Bobbie kicked me out of the car . . . with his feet and punched me, right after I told him I loved him." On one occasion, the minor tried to hug appellant, who responded by pushing him away really hard. The minor said this made him feel "bad" and hurt his feelings.
The minor related an incident where appellant pulled out a knife and tried to "kill everyone," and attempted to cut the minor. He once saw appellant choke his mother, causing the minor to choke appellant in return. Asked with whom he wanted to live, the minor answered his mother, her boyfriend, appellant, and his foster father, all in the same home, because he loves everyone. However, he wanted to live with the foster father the most.
The minor's therapist said the child had "no learned social skills at all." The minor was diagnosed with post-traumatic stress disorder (PTSD) and attention deficit hyperactivity disorder. There was a significant change in the minor's behavior after he started taking Ritalin, allowing him to sit for 25 to 30 minutes at a time and stay focused on school work. The therapist recommended against visits with appellant as it could jeopardize the minor's placement with the foster father by causing a spike in the minor's behavioral issues.
The therapist related that the minor had nightmares one to three times a week, and thinks ghosts are talking to him and trying to kill him. According to the therapist, the minor had "street smarts but his social skills are at a three year old's level." He had limited verbal skills, used only swear words to express himself, and did not process very well.
The minor's teacher believed he had been severely abused; he had a fear of abandonment and would flinch when people moved too quickly. The teacher was aware of the PTSD diagnosis and recalled a time in class when the minor said, for no reason, "don't call me a liar." The teacher described this behavior as a flashback. The minor would say things around other children such as, "I'm stupid, look at me; I'm an idiot." The teacher had never seen such an extreme case and thought it would take years to undo the damage caused to the minor.
The juvenile court sustained the amended petition in April 2010. Reunification services were denied, and the juvenile court set a selection and implementation hearing. (§ 366.26.) The juvenile court ordered no contact between appellant and the minor.
The August 2010 selection and implementation report stated the minor refers to the foster father as his "dad." The foster father continued to work with the minor on his behavioral issues, and was committed to adopting him. The minor, who was thriving in the foster father's care, was considered generally adoptable because of his age and health.
The appellant filed a petition for modification in August 2010, seeking reinstatement of reunification services. The petition was denied later that month.
At the September 2010 selection and implementation hearing, appellant denied abusing the minor, objected to the denial of his section 388 petition without a hearing, and asserted the beneficial parental relationship exception to adoption. The juvenile court terminated parental rights.
Appellant contends the court erred in failing to consider the minor's wishes.
"At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." (§ 366.26, subd. (h)(1).) The statute imposes "a mandatory duty on the courts to 'consider the child's wishes to the extent ascertainable' prior to entering an order terminating parental rights[.]" (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 (Leo M.).) A statement from the minor need not be testimony in court; informal communication on or off the record, reports prepared for the hearing, or other methods may suffice. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480 (Diana G.).)
Appellant did not raise this issue in the trial court and has forfeited the argument on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
But we also find the record contains ample evidence of the minor's wishes. The jurisdiction and disposition report relates the March 2010 interview with the minor in which he expresses his desire to live with his mother, her boyfriend, appellant, and the foster father, all together in the same house. The minor's counsel related this information to the juvenile court at the disposition hearing, where counsel also said the minor called appellant "Bobby," rather than "dad" or some other bonding name. By the time of the September 2010 section 366.26 hearing, the minor was closely bonded to the foster father, whom he called "dad."
We presume the juvenile court read and considered all of the evidence before it, including the social workers' reports, as it stated it did. (Evid. Code, § 664.) The minor wanted to stay with all the significant adults in his life, but preferred the foster father. The six months between the interview and the section 366.26 hearing was not so long as to require another interview with the minor regarding his preferences. The minor thrived in the foster father's care and formed a close attachment to him. In turn, the foster father wanted to adopt him.
Appellant subjected the minor to prolonged physical and emotional abuse, leaving the child with profound problems at the time of his most recent detention. He did this to the minor in spite of having received extensive services in the two previous dependency actions involving the minor. The record thus strongly suggested the minor's needs for stability and permanence meant adoption was the best choice for him.
In re Julian L. (1998) 67 Cal.App.4th 204, cited by appellant, is distinguishable. There the record contained no evidence of the minor's feelings toward his parents or of his thoughts about his living situation. (Id. at p. 209.) Here, by contrast, the record reflects the minor had had a bond with appellant but had also bonded with the foster father.
We also reject appellant's contention that the minor had to be told about the possible termination of parental rights. Appellant relies on Diana G. in which the parents argued that the children's wishes regarding termination and adoption were not presented at the section 366.26 hearing and were not considered by the juvenile court. (Diana G., supra, 10 Cal.App.4th at p. 1480.) The appellate court interpreted the predecessor to section 366.26, subdivision (h)(1), former section 366.26, subdivision (g), "to require the juvenile court to receive direct evidence of the children's wishes regarding termination and adoption at the permanency planning hearing." (Diana G., at p. 1480.)
The Court of Appeal in Leo M. declined to follow Diana G., as requiring a direct expression of the minor's wishes on termination and adoption "in all termination proceedings fails to take into account the tremendous diversity that exists among children." (Leo M., supra, 19 Cal.App.4th at p. 1592.) The text of section 366.26, subdivision (h)(1) contains no requirement that evidence indicating the child's wishes be direct or that the child be aware that the proceeding is a termination action for purposes of assessing the child's preferences. (Leo M., at p. 1592.) Although a direct statement from the minor regarding his or her preferences regarding adoption may be the most dispositive, "it will not always be possible or in the minor's best interest to obtain such a statement. For example, some children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents." (Ibid.)
We agree with Leo M., and decline to follow this holding of Diana G. The minor's therapist recommended against visitation because contact with appellant could weaken the bond with the foster father and cause a spike in the minor's behavior problems. The juvenile court could reasonably infer that the risk of traumatizing the minor precluded asking him about termination and adoption.
We conclude the record does not support the claim the juvenile court failed to consider the wishes of the minor or that no such evidence was before the court.
The order terminating appellant's parental rights is affirmed.
BUTZ ,J. HOCH ,J.
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