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In Re Mickel O. et al., Persons Coming Under the Juvenile Court Law. v. Brendan O

July 13, 2011

IN RE MICKEL O. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. MERCED COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
BRENDAN O., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash, Judge. (Super. Ct. No. 27530)

The opinion of the court was delivered by: Kane, J.

CERTIFIED FOR PUBLICATION

OPINION

SEE CONCURRING OPINIONS

Brendan O., maternal grandfather of Mickel O. and Mallory P. (collectively, the children), appeals the juvenile court's denial of his petition, filed pursuant to Welfare and Institutions Code section 388, requesting that the court place the children with maternal grandparents or, in the alternative, provide maternal grandparents unsupervised visitation with the children. In addition, maternal grandfather specifically contends (1) the social worker violated his constitutional rights by searching his personal belongings; (2) the social worker did not comply with the juvenile court's mediation order; (3) the agency*fn1 and the juvenile court failed to investigate referrals made regarding abuse and neglect of the children while in paternal grandparents' care; (4) the social worker did not properly investigate allegations of mistreatment of Mallory; (5) the juvenile court failed to protect Mallory and failed to enforce the Child Abuse and Reporting Act; (6) the social worker's report was biased and contained false information; (7) maternal grandparents should have been considered for adoptive placement; (8) the juvenile court erred when it granted de facto parent status to paternal grandmother; (9) the children were denied effective assistance of counsel; and (10) the juvenile court failed to consider the best interests of the children.

While we sympathize with maternal grandfather's desire to have an active role in raising the children and recognize that these proceedings have been unduly protracted and difficult, we cannot say the juvenile court abused its discretion in denying the section 388 petition. However, we do conclude the court abused its discretion in terminating supervised visitation for maternal grandparents. Accordingly, we will reverse the order terminating supervised visitation and remand to the juvenile court with directions.

PROCEDURAL AND FACTUAL BACKGROUND

This case has a long history, much of which has been recounted in other opinions. At this point, the two sets of grandparents are fighting over the children. We set out a brief history.

Mother and father had two children, Mickel and Mallory. The children lived with mother and maternal grandparents until Mickel was four years old and Mallory was eight months old. During this time, Mickel formed a strong bond with maternal grandfather. On August 22, 2006, the children were made dependents of the court (Welf. & Inst. Code, § 300)*fn2 based on allegations that mother and father failed to protect or supervise the children and that mother suffered from mental illness, developmental disability or substance abuse. The children were placed with father. The agency offered mother reunification services.

On October 24, 2006, the agency filed a supplemental petition alleging that mother attacked father and paternal grandmother in father's home, and that father failed to prevent mother from having contact with the children. The children were removed from father's home and placed with paternal aunt. On November 9, 2006, the petition was sustained and maternal grandparents were granted de facto parent status.

On June 19, 2007, reunification services to mother were denied, and reunification services were ordered for father.

Due to a medical situation in paternal aunt's family, the children needed to be moved. On August 7, 2007, maternal grandparents sought placement. The homes of both sets of grandparents were considered for placement, but mother was residing in maternal grandparents' home. The agency was concerned that maternal grandparents could not protect the children from mother. The court placed the children with paternal grandparents. Maternal grandparents appealed the placement order and we affirmed (In re Mickael O. [sic] (June 26, 2008, F054035 [nonpub. opn.]).

On January 18, 2008, maternal grandparents filed a petition under section 388 to change a court order.

On April 15, 2008, paternal grandparents were granted de facto parent status. Mother's motion to reinstate reunification services was denied, she appealed, and we affirmed (In re M.O. (Feb. 27, 2009, F055603 [nonpub. opn.]).

On May 22, 2008, the parties agreed to participate in a bonding study.

On August 21, 2008, Pattee Russell-Curry (the expert) submitted the bonding study report to the social worker, Sandra Contreras (the social worker). As noted in the report, the social worker had requested that the expert examine who the children considered as parents, and explore the bonding between the children and their parents and grandparents. The expert first interviewed and observed the parties in her office, but found that the adults were tense and unnatural in the setting, so she decided to observe them at home where they would behave more naturally. Her report contained the following observations:

"Characteristic Patterns of Interaction

"The children exhibit very clear patterns of close personal space with their family and with me, as a stranger. They responded to nurturing touch, playful touch, and gentle physical redirection. I used these techniques with them, and observed all of the [maternal family] to also use this style. The children were more positively responsive, with [Mickel] controllable by [maternal grandfather] when he quietly guided him in this way. [Mickel] was less responsive with this type of redirection from the ... women [on the maternal side]. In fact, [Mickel] seemed to, in general, be far more oppositional defiant with all the females[ of both families].... Mallory, was generally resistant with every one, although she was most responsive to [paternal grandfather's] guidance. She became increasingly oppositional with [paternal grandmother's] physical restraint, and was sassy, silly or 'impish' with everyone in a challenging or defiant way.

"Both children presented with distinct and rapidly changing mood swings. Mallory was frequently whiny, pouty and defiant and most of the photos of her at visits were very unhappy looking. Over time, I observed Mallory to be a happy child, but it was often mixed with being naughty when she had the biggest smiles and laughter. This 'style' of playing seems mixed with hidden anger.

"[Mickel] presented as a mild and pleasant child, who could quickly and violently strike out at his sister, and shocked me on his first session, and was quickly redirected by me. Over time, I saw [Mickel] as a very sad, depressed child, who has moments of happiness. His sadness seems to be complicated by missing his [father], being unsure of his mother's love, wanting to go home to [maternal grandfather], ravenous for [maternal grandmother's] cooking, desperately wanting a close physical bond with [paternal grandfather] (who has more distant physical boundaries), and seeing sport in defying and confounding [paternal grandmother], when what he really wants is for her to play with him.

"I found [maternal grandparents] overall to be more warm, nurturing and physically close and accommodating to these children. They naturally shaped their bodies and moved their faces into intimate, close personal space as they attempted to engage the children. Mallory consistently used less eye contact, and overall was more avoidant with [maternal grandparents] than with [paternal grandparents]. [Mickel] was very engaged with [maternal grandfather] at the exclusion of all others.

"[Paternal grandparents] are more physically reserved. I observed more distal gestures of affection. For instance, where [maternal grandparents] might curve their bodies around the child's, or encase them and envelope them as they worked at the table with toys, [paternal grandparents] were more likely to move the children over, establish distinct spa[t]ial boundaries, reach out and touch them at a distance, use words of affection, but without the body engaging in reinforcing the meaning of their words. [Paternal grandmother] has very clear boundaries, and the children often attempted to move into her physical space for nurturance and intimacy, but she would define these attempts as inappropriate. However, I did not see any inappropriateness in their attempts to be close to her. They did occasionally need help regulating how they negotiate intimacy in another person's space.

"I believe that the distinctness of these differences may in large part be due to cultural styles and differences. However, these children have internalized love and intimacy with close physical proximity, shaping the body into the other person's space. [Paternal grandparents'] discomfort with this style has led to anxiety on their part, concerns and misunderstanding, I believe, and has created frustration for these children.

"In terms of 'goodness of fit', the children do not fit well with [paternal grandparents'] style of relating. They are clearly at home in their style of relating with [maternal grandparents]. The 'goodness of fit' is evident in the ways in which they relate with [maternal grandparents]. [¶] ... [¶]

"Nature and Extent of Bond of [Mickel] with [Paternal Grandfather]

"[Mickel] seems to really like [paternal grandfather]. He attempts to have much physical contact with him .... [Paternal grandfather] previously explained to me that he was not raised with so much physical contact with his own father, and so it feels somewhat uncomfortable for him.... After observing everyone, I believe that [Mickel] wants, very much, to establish a warm nurturing relationship with [paternal grandfather] as a Father/Grandfather figure. I believe this is because he appears to have a warm, nurturing, physical relationship with [maternal grandfather]. This is how he has learned to show familial love, but it is somewhat frustrated by the difference in styles of relating between the two families.

"In the home observation, I found [paternal grandfather] to be far less mellow and laid back than he presented in my office. In his home, he tended to get caught-up in some power struggles with [Mickel]. He ignored Mallory's naughty words, but perhaps she was testing for him to set limits.... It was evident[,] however, that [paternal grandfather] is at a disadvantage being gone four days out of the week. On his return, he has to continually re-establish boundaries with the children, I suspect.... Currently, the children deal exclusively with [paternal grandmother] during the week, then must adjust to [paternal grandfather's] expectations which[,] are different, upon his return.

"Clinical Impressions of [Mickel] and [Maternal Grandfather]

"[Mickel] appears to be most closely attached and bonded to [maternal grandfather]. This relationship is almost exclusive to all others. He is attentive with eye contact, much interaction, and warm love and affection between them. When seen together with the rest of the [maternal] family, [Mickel] remains almost exclusively with [maternal grandfather]. His mother attempted several times to get his attention for a big hug or to interact, and he would harshly admonish her that he was busy playing.

"While I do understand the special and intense bond that a child can develop with a grandparent, it is noteworthy that this intensity between them seems to actually exclude everyone else. This seems to me, to be not healthy in its exclusion of others, not necessarily because of its specialness or intensity, but because of how it alienates the rest of the family. I would think that this would make them feel left out. It certainly cheats [Mickel] out of learning how to engage in meaningful interaction with others in a more engaged way.

"[Maternal grandfather], of all the adults, seemed to have the best luck with [Mickel] in speaking softly to him, cueing him to settle down with a gentle touch on the back or arm, to nurture him with affectionate pats on the head.

"Additionally, the intense focus on [Mickel] almost exclusively, although not completely, was noteworthy. I do understand that a much more developed relationship was built with [Mickel] than with Mallory simply because of how young she was when she was removed from the home. Yet, I would expect grandparents to more democratically divvy up their time with the children, and to want to get to build the relationship with Mallory since they may feel cheated out of so much precious time with her.

"Instead, what I saw, which seems to be consistent with observations of others, is that there is a gender division within the family. [Maternal grandfather] and [Mickel] have their activities and focus, and [maternal grandmother] and [mother] focus primarily on Mallory. Both [maternal grandmother] and [mother] do make attempts to engage [Mickel], but he ignores, pulls away, rebuffs or otherwise rejects them in the presence of [maternal grandfather]. I did not observe [maternal grandfather] help [Mickel] learn how to bridge those social skills by encouraging him to look at them and respond when spoken to, or to invite them to join them in an activity so they were not left out. There seemed to be an unspoken understanding among them that this is how they function. I believe that this unusual division of interaction and relational pattern is a significant piece of why [maternal grandparents] were not considered more seriously for placement. It appears that these issues were addressed on several occasions with [maternal grandparents], but that they either did not understand their significance, or were unwilling to take corrective feedback that might have assisted them in working toward the return of the children to them.

"Clinical Impressions of [Mickel] and [Maternal Grandmother]

"[Maternal grandmother] stands by happy to see [Mickel], but takes a back seat to the group activity, primarily. When seen alone with [her], [Mickel] avoided a lot of eye contact, played parallel to her and, in general, only tolerated her, in comparison to his need for mother's approval, and his clear engagement with [maternal grandfather]. [Maternal grandmother's] role appeared to be one of nurturer through food. She appears to be a wonderful cook, who regularly sent tasty food for the children to eat, which they hungrily gobbled down.... [¶] [Maternal grandmother] made many attempts at appropriate play with [Mickel] and he was responsive sometimes, such as in playing hide and seek, which developmentally and emotionally, given his many disruptions, losses, and home changes, was a great game for them to play.

"Nature and Extent of Bond of [Mickel] and [Paternal Grandmother]

"[Mickel] demonstrates clinical oppositional defiant behavior with [paternal grandmother]. He is really challenging, testing limits, saying the opposite of what is expected, teasing and being defiant without mercy. In some instances, I felt that he was trying to engage [maternal grandmother] in play with him, but because he was being rude, disrespectful, disobedient, out of control or otherwise out of line, it was not really possible for [her] to engage with him in that way. On the other hand, because [she] is perhaps a more serious person with him than the other adults, he may be responding to this difference in style with the only social skills he has, which are to be playful, rambunctious or strong willed and defiant. In this way, their personalities are mismatched. [¶] Nonetheless, while he was able to separate from all other adults, ... he showed great anxiety when [paternal grandmother] left the room, and would not let her go without him. He refused to be left. Although he gave [her] a very hard time in their session with me, he had trouble separating from her when [paternal grandfather] came to take him home and [paternal grandmother] remained a few more minutes with me. I found that he had an ambivalent attachment with [paternal grandmother], one that is needy and insecure, but wanting very much to feel secure. Although he gave her the most trouble, he also appeared to rely on her the most in other ways emotionally, as she is his caretaker now. [¶] ... [¶]

"Recommended Steps for Developing Healthy Attachments

"In this family's situation, I believe that there are no normal, natural, healthy bonds, but there are many attachments that are ambivalent, enmeshed, avoidant, or insecure.*fn3 ] In my opinion, [Mickel] is intensely bonded, in an enmeshed sort of way with [maternal grandfather], so that it keeps him from developing a more balanced bond with the females [on the maternal side of the] family. I believe there are distinct attitudinal differences between the sexes in the [maternal grandparents'] home, and there are certainly cultural and special needs issues which must be kept in mind when understanding how their family functions. It may be that [maternal grandfather] was the buffer for [Mickel], from the instability in his mother's life. His intense bond with [maternal grandfather] may be the result of the 'abuse bond' with his mother. [¶] [Maternal grandfather's] willingness to help [Mickel] 'bridge' his attention to include his mother and grandmother, or sister, would assist in reducing the intense enmeshment between them, and open up more relational opportunities between the male and female relatives. This ability would help socialize [Mickel] and Mallory in ways to include people, make them feel welcomed, loved and accepted. [¶] ... [¶]

"Discussion of the Nature and Extent of Bonds in the Family

"[¶] ... [¶]

"[Mickel] had a happy, if somewhat hyperactive visit [at maternal grandparents' home], primarily exclusive with [maternal grandfather]. When I told him it was time to go, and that [maternal grandfather] would keep his toys safe (rather than taking them), he reached for [maternal grandfather] who picked him up. In that moment, [Mickel] emotionally and physically collapsed in [maternal grandfather's] arms as dead weight, said he didn't want to leave, and cried large crocodile tears to the end of the visit. I immediately followed up at the [paternal grandparents'] home as he was returned and he was calm and happy. I saw no signs of lasting trauma. However, I believe that his authentic emotion of despair, and his attachment to [maternal grandfather] are primary, fundamental and intense. That he does not have a more intensely bonded connection with his mother ... was notable ....

"Clinical Impressions of [Mother's] Disabilities and Impact on Bonding

"It would appear that [the agency's] involvement has aggravated an already volatile situation. However, this intervention occurred due to the parents['] pathologies, their unwillingness to seek help, and the compelling and enmeshed ways in which each parent was able to triangulate their extended family into their pathology. This process polarized these families and has created ongoing discord, anxiety, chaos, animosity and other pathology for these young children and the entire system .... This complex systemic 'splitting' screams Borderline Personality Disorder. Whether this is a feature of [mother's] diagnosis, a possible issue with [father], or coming from other parties or workers, is not clear. However, what is clear, is that there is clearly a pathological process that has ensnared this entire case, and will most greatly impact the ability of these children to maintain positive relationships with all family members. If the process can not be deactivated or disengaged from this borderline feature, severe limits will undoubtedly need to be established to buffer [Mickel] and Mallory from continually being sucked in and confused. [¶] ... [¶]

"[Maternal grandparents'] home was warm and welcoming, neat and tidy, organized, cozy, kid-friendly and appeared totally acceptable to me as a home environment. Both [maternal grandparents] are from large families and have plenty of experience raising kids and interacting with them. [Maternal grandmother] in particular, was quite hospitable and gracious. [Maternal grandfather] is so upset and angry by the circumstances, that his negativity and pessimism spill[] out uncontrolled at the slightest trigger. This level of frustration in [maternal grandfather] is also seen in [mother]. There is a family pattern of suspiciousness and defiance in [maternal grandfather] and [mother], and this behavior is also evidenced in both of the children. Yet, in my observations of their interactions with the children, they were both appropriate, nurturing and positive. However, if their overall pattern is more pessimistic, controlling, demanding or hot tempered, this eventually will impact the children. [¶] ... [¶] ... That [maternal grandparents] were a more stable constant for these children was probably one of the most important factors in their resilience to be doing as well as they are at this time, in my opinion. [¶] ... [¶]

"Summary of Bonding Study

"[Mickel] is a mixed race (Asian/Caucasian) 6 year old male with an abuse and trauma history dating back to at least 6 months in utero. At 3 years of age, he was removed from his home and proceeded to be moved 4 times. His behavior was reportedly active, impulsive and disruptive when in his mother's custody, and continues to be so now. Per the [paternal grandparents], and [the social worker's] reports, [Mickel] has academically grown and developed substantially. Per the [maternal grandparents] reports to me, [Mickel] regressed from the stress of his detention, and his functioning after removal is not a good measure of his abilities prior to that time. [Mickel] exhibits depression, anxiety, oppositional defiance, aggression, impulsiveness, and rapid mood swings with intense emotionality. He misses [maternal grandfather] and [father], and wants reassurance that [mother] loves him. In fact, he seeks reassurance also from [paternal grandparents]. He frequently asked the adults if they wanted him. He is insecure in his attachments, enmeshed in his bond with [maternal grandfather], and uses some avoidance attachment in relationship with his grandmothers. His play is extremely violent and aggressive. He expressed with much vehemence, how much he hates the fighting that his parents and [maternal grandfather] have done with each other. He remembers [mother] pulling [paternal grandmother's] hair. It is very upsetting to him.

"Mallory is a mixed race (Asian/Caucasian) 2 years and 10 month old female child, separated from her primary caregivers at 3 months of age, and moved in about 3 month intervals two more times, settled into a relative placement for 8 months under the age of 1, and was again moved to be placed with [paternal grandparents]. Her behavior is impulsive, with poor boundaries and indiscriminate affection. She exhibits some oppositional defiance. She displays moody, whiny behavior with sudden behavioral changes, and frequent pouty affect alternating with sassy, silly behavior. Her early disrupted attachments concern me as a potential risk factor. She is developing well, with good physical coordination, and manual dexterity for a young child her age. She is very fond of her families, but is particularly partial to [paternal grandfather]. She has an ambivalent attachment to [paternal grandmother], in my opinion, with resistance and struggling, yet clingy behavior.

"All of the adults appeared to have some anxiety issues, which manifested itself differently in the ways they attempted to relate to the children, and how well they were able to be responsive. Each family has a distinct style of relating, and because the children were raised in the [maternal grandparents'] home initially, and perhaps for other biological reasons, the children exhibit a more complementary style of relating with [maternal grandparents], but one which clashes with [paternal grandparents]. [¶] However, the children appear to feel settled and safe at [paternal grandparents'], and continue to persist in trying to get [paternal grandparents] to relate to them in ways which are playful, nurturing, but with firm limit setting. They readily tell [paternal grandparents] that they love them and seek physical closeness."

On August 26, 2008, reunification services for father were terminated and a section 366.26 hearing set. The children remained in paternal grandparents' home and the court ordered monthly visits for mother and maternal grandparents.

On September 5, 2008, the expert wrote an addendum report directly to the juvenile court, voicing her concerns about the way the social worker, Sandra Contreras, was handling the case. She stated:

"I am writing directly to you, in response to questions posed by one of the attorney[s] in this matter, [maternal grandparents' counsel]. [Counsel] has requested my recommendations in the above matter as they pertain to termination of parental rights, possible detriment of harm or impact on the children, and whether termination of contact with the maternal grandparents would be detrimental to the children. I left [maternal grandparents' counsel] a message that Ms. Sandra Contreras, social worker with [the agency,] has on at least two occasions, during the final preparation of my previous report, adamantly insisted that I not provide any recommendations, but only address the nature and quality of the relationships and bonds with the parties involved. Obviously, [maternal grandparents' counsel] is frustrated with this turn of events. He has determined that [the social worker] is 'meddling'. [Maternal grandparents] would view this as continuing obstruction.

"Therefore, I have decided to write directly to the Court, who ordered this report. I was instructed to provide my findings only to [the social worker], who has been the liaison between the Court and myself, and provided all information as to what was needed in the assessment. However, normally, I would prepare my report directly for the Court.

"Therefore, please find enclosed, my findings in response to [maternal grandparents' counsel's] questions. I am sending them directly to you, as I believe that this case has been compromised, and controlled by [the social worker's] adamant resistance to my requests to observe the children in the maternal grandparent[s'] home, which was only possible after County Counsel advised her to cooperate with me, and my questioning the restraining of any recommendations that I might offer. [Maternal grandparents'] concern that the agency is doing everything in their power to undermine their relationship with their only grandchildren does appear to have some merit based on my observations of the process to accomplish this assessment."

The expert then explained that she had discovered a "'cloud of suspicion'" over maternal grandfather that she could only substantiate "through rumor, innuendo, fears and suspicions ...." She said: "[B]ut [it] has no basis in any evidence, yet it is coloring all decisions that have been made in this case regarding [maternal grandfather], as far as I can tell." The expert continued:

"There is a belief that [maternal grandfather] has been sexually inappropriate with [Mickel], or that he will be, based on the following reports: [O]nce [maternal grandfather] brought [Mickel] to the [paternal grandparents'] home for a visit and advised [paternal grandfather] that [Mickel] had diarrhea and was 'bleeding from the butt'. Social worker concerns regarding the close physical proximity, touch and whispers between [Mickel] and [maternal grandfather have] raised suspicions. Community rumors that [maternal grandmother] is never seen at the home, and 'probably' does not live there, [have] fueled concerns that their life is a lie and a cover so that [maternal grandfather] can get the boy back for himself. The belief that [Mickel] slept with [maternal grandfather] and that [maternal grandmother] was allegedly not present, has raised suspicions that something untoward may have occurred. The upset and anger over believing that [maternal grandfather] lied when he told [paternal grandparents] that the whole family was going camping, only to learn upon their return that only [maternal grandfather] and [Mickel] went camping, and [Mickel] seemed upset and very closed about the trip, only saying he didn't like it, led [paternal grandparents] and the social worker to believe that he must have been molested on this trip. I saw pictures from that camping trip in which [Mickel] appeared happy.

"For whatever reason, suspicion, rumor and innuendo have been allowed to run rampant in this case, and has determined the removal of these children from [maternal grandparents'] home, and the resistance on the part of the [agency's] social workers from working with them to return the children to their home. However, the workers have never addressed these issues that I could determine. I asked their attorney if there were sexual abuse issues in this case and his response was 'there better not be' as they had not been addressed. I asked the social worker ... and both sets of grandparents. Only [paternal grandparents] and [the social worker] alluded to their suspicions with the above examples. [Maternal grandparents] also were upset that there might be such a belief, and that it had not been addressed.

"I believe that it is important that this issue be brought out into the open. It is impossible for [maternal grandparents] to address it or defend themselves if they don't know they are being accused. It answers many of the questions that they have about 'why' the decisions in this case have gone the way they have."

The expert proceeded with her report, as follows:

"Impact of Domestic Violence

"Having said that, I will say that although I believe that [Mickel] is most intensely bonded with [maternal grandfather], and the [maternal grandparents] appear far more emotionally invested and attached to [Mickel], [Mickel] is very clear that he feels most secure now in [paternal grandparents'] home. He has been able to verbalize to me his anger, hurt and frustration on several occasions because his mother, father and [maternal grandfather] all fight. He states, 'I hate, Hate, HATE‼‼! that they fight‼!' He appears to want to go home to [maternal grandparents' home], but not now, not anymore, because of the domestic violence. I believe that if there was no more animosity and anger, that yes, under good circumstances, [Mickel] would want to go 'home' to [maternal grandparents]. However, at this point, he appears more emotionally settled and stable in [paternal grandparents'] home, and is putting down roots with [paternal grandmother] in ways that show me he is relying on her help emotionally.

"I believe that the children probably should have been placed with [maternal grandparents] as long as they did not leave the children alone with [mother], but I understand that that did occur. If they were out of compliance with the requirements, and they were uncooperative with the Orders or other matters, this may have led to the reasons the social workers stopped ...


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