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In Re P.S. et al., Persons Coming Under the Juvenile Court v. P.S.

April 7, 2011


Super. Ct. Nos. JD228487, JD230376

The opinion of the court was delivered by: Raye P.J.

In re P.S. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

P.S., Sr., the father of two-year-old P.S., Jr., (P.S.) and one-year-old Ph.S., appeals from orders of the Sacramento County Juvenile Court terminating his parental rights.

On appeal, father contends (1) his modification petitions were erroneously denied, (2) there was insufficient evidence that the children are adoptable, and (3) there was insufficient evidence that the beneficial relationship exception to adoption does not apply. We shall affirm the orders.


Detention of P.S.

In October 2008, one day after P.S.'s premature birth, the Sacramento County Department of Health and Human Services (Department) placed him in protective custody due to his 20-year-old mother's failure to participate in, and consequent termination of, family reunification services for a half sibling, N.T., which in turn placed P.S. at risk for abuse, neglect, or harm.

Father, age 47, was present at the birth of P.S. and his name is listed on the birth certificate. He told a social worker that mother had given him custody of P.S. Father denied that he had any Child Protective Service (CPS) history and admitted that he has 11 other children, all of whom live with their mothers. Father lived alone, was unemployed, and received social security for a disability related to a back injury. He denied any domestic violence with mother but admitted to mutual domestic violence with the mother of some of his other children for which he had been incarcerated and had attended anger management counseling.

Four days later, the Department filed a petition alleging that P.S. came within juvenile court jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).*fn1 The petition alleged various facts with respect to mother but no facts with respect to father.

On October 9, 2008, the juvenile court found father to be the "presumed father" of P.S. and ordered the baby detained.

Jurisdiction and Disposition of P.S.

The October 2008 jurisdiction/disposition report recommended that P.S. be declared a dependent, removed from his parents, and placed with a maternal great-aunt. During the three weeks that mother had lived with father, he had not noticed her having any mental health issues or having any emotional or developmental delays. Rather, father thought mother simply was "young and immature." The social worker deduced that father's failure to notice raised "concerns regarding [his] ability to set boundaries with the mother," and opined that he should not receive custody until he learned to set "boundaries and limits" with mother and learned to "parent a young infant child." Reunification services were recommended for father but not for mother.

The investigation revealed that father had an extensive criminal history, starting with a conviction for battery in August 1982 and including convictions for corporal injury of a spouse or cohabitant, obstructing or resisting a peace officer, and another battery for which he was then on probation.

A December 2008 addendum to the report noted that the Department had received information from a worker at mother's independent living program (ILP) regarding domestic violence between mother and father. The ILP worker advised that mother, who is developmentally delayed and a client of the Alta Regional Center, had said that father, her live-in boyfriend who is considerably older than her, had been beating her for several weeks. Father would lock the apartment door and refuse to let mother leave. He frequently would beat her with a belt and belt buckle. The ILP worker observed that mother had a "raised skin area near her left ear and left temple area."

Mother told the ILP worker that she and father had arranged for him to seek custody of P.S. and then allow mother to see P.S. as often as she wanted; he told her they "wouldn't let CPS know about it, and [mother] could live with [father]." The ILP worker, who has known mother since 2005, knows "when [mother] is not telling the truth, and she's telling the truth about this."

Father left the Department a voice mail message adamantly denying the allegations.

When a Department social worker interviewed mother, she inquired whether the juvenile court would find out about the domestic violence. Mother then claimed that a year before she was pregnant with P.S. father had hit her, but not recently. She denied making the statements that the ILP worker had attributed to her.

The Department continued to recommend out-of-home placement and asserted that father needed counseling on "how to establish boundaries with the mother and to identify behaviors of mental health, developmental and emotional delays in order to ensure the safety and protection of the child, as well as domestic violence and anger management/poor impulse control issues."

In January 2009 the Department filed another addendum recounting mother's insistence that she had lied about father physically abusing her "because she was jealous of the father's new relationship with another woman." She said it "was 'all lies,'" and she had not intended to jeopardize P.S.'s possible placement with father. The addendum stated that the Department had ongoing communication with father who denied the allegations, was compliant with services, and now acknowledged mother's mental health issues.

Without addressing the ILP worker's observation of mother's physical injuries or the worker's opinion that mother's report had been truthful, the Department remarkably concluded that "there is no evidence" that father "ever" had been abusive to mother. The Department recommended that P.S. be placed with father under a program of dependent supervision.

In January 2009 the juvenile court sustained the petition, adjudged P.S. a dependent, placed him with father, ordered services for father, and set a review hearing.

Subsequent Juvenile Petition--Detention of P.S.

Only two months later, P.S. was returned to protective custody. In March 2009 mother and father had a verbal argument that escalated into a physical confrontation. Father punched mother in the face two times. He was arrested and taken to jail.

The Department filed a petition under sections 342 and 387, alleging the parents "have a history of engaging in domestic violence," with the most recent incident occurring on March 20, 2009. The petition alleged the "ongoing domestic violence" placed P.S. at risk of physical harm, abuse, and/or neglect.

The juvenile court detained P.S. and a jurisdiction hearing was set for April 2009.

Subsequent Juvenile Petition--Jurisdiction of P.S.

When interviewed by the Department, father claimed that mother, who had been "stalk[ing]" him, tried to force her way into the apartment to see P.S. When she did so, he "slightly grab[bed] her shoulder ...

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