IN RE: TABETHA S. and Travis B.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: TABETHA S. and Travis B., Minors. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. DIANE K., Objector and Appellant.

No. D014048.*

Decided: January 23, 1992

Stephen R. Brodsky, San Diego, for objector and appellant. Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, Patricia L. Davis and Patrice Platner–Granger, San Diego, for petitioner and respondent. Miriam R. Kennedy, San Diego, for Minors.

Diane K., mother of Tabetha S. and Travis B., appeals an order under Welfare and Institutions Code 2 section 366.26 permanently severing Diane's parental rights, declaring that the minor dependents of the court are adoptable by clear and convincing evidence and referring them to the Department of Social Services (Department) for adoptive placement.   The order was made February 15, 1991, when Tabetha was seven years old and Travis was three years old.   Since July 1990 Tabetha has been placed out-of-state with her maternal great aunt who expressed a willingness to adopt.   Since June 1990 Travis has been placed in California with his paternal grandmother who also expressed willingness to adopt.   The trial court continued the matter for a review hearing on August 8, 1991.

During the appeal this court has denied Diane's request we take judicial notice of the names of certain drug treatment programs in San Diego County, her request we take additional evidence on the matter of her drug treatment and progress since the February 1991 hearing, and Department's motion to dismiss the appeal.

Diane contends she has successfully rehabilitated from drug addiction, a matter first discovered during the appeal, and should be given a new reunification plan;  Code of Civil Procedure section 909 authorizes this court to take additional evidence of her rehabilitation;  the initial February 1989 order to detain the children outside her home and the June 1990 order terminating reunification services were unsupported by substantial evidence;  and the order terminating her relationship with the children was not supported by substantial evidence.   Finding merit in the last contention there was insubstantial evidence to support the order from which this appeal is taken, we reverse.

FACTS

In February 1989 Tabetha, then five years old, reported to a Department social worker that Tabetha had been molested by Scott B., Diane's live-in boyfriend of three years' duration and the father of Travis.   The molestations had occurred out of the state a number of times in the past, between approximately November 1987 and August 1988.   Diane told the social worker she was having trouble getting Scott B. to leave.   There was a history of reports of molestation, drug use and mental problems of Diane, and family violence.   Tabetha and Travis, then two years old, were taken into protective custody and a dependency petition was filed.   Travis was detained with his paternal grandmother and Tabetha was placed in a confidential foster home.

At the hearing on the amended petitions in June 1989, Diane pleaded no contest as to both minors to allegations under section 300, subdivision (d), relating to sexual abuse or substantial risk of sexual abuse, and as to Travis under section 300, subdivision (j), relating to sibling abuse with substantial risk of abuse or neglect of the minor.   The court declared the minors dependent children of the court and ordered a reunification plan which Diane signed.   The reunification plan included orders that Diane attend Narcotics Anonymous meetings, obtain a sponsor within three weeks and complete five steps of the twelve-step program before the next hearing;  submit to drug testing;  attend Parents United;  and visit her children regularly.

In July 1989 at a special hearing the social worker reported that during a visit with Tabetha Diane placed a telephone call to Scott B. and insisted Tabetha speak to him.   This was a violation of the court's no contact order.   Tabetha told the social worker she was very unhappy and distressed over the fact she spoke to Scott B.   The social worker ordered visits at the office only.   The court continued the matter to August when it ordered continuation of Tabetha's placement with the paternal grandmother.   The next hearing remained set for December.

In October 1989 a clinical and developmental psychologist recommended all visitation and phone contacts between Diane and Tabetha be suspended until Diane successfully completes four consecutive weeks of clean drug testing.   The psychologist described Diane as a “negative influence” at this stage of the reunification process.   In a report about three weeks earlier, in September, the psychologist reported Diane had told Tabetha during a visit at the beach that she was going to put Tabetha in Diane's car and drive off the next time they went to the bathroom at the beach.   Tabetha was incensed Diane was able to deny saying this and suffer no consequences.   The psychologist opined that Tabetha's retractions of statements about Scott B.'s molestation were due to pressure from Diane and others, including Scott B.'s mother.   At this stage Diane had told Tabetha she was going to marry Scott B.   The social worker ordered office visits only and told Diane if she provided proof of four weeks of clean drug tests she would be permitted to resume visitation at the foster parent's home.

In November 1989 Tabetha's confidential foster home placement was changed.

In December 1989 at the review hearing in which Diane was present the court suspended visitation between Diane and Tabetha and set a contested review hearing for February 1990.

In January 1990 a special hearing was held “to inform the Court of the mother's attempt to kidnap [Tabetha].”   Diane did not appear at the hearing in which the social worker reported that on January 2 Diane parked her car in the middle of the street leaving the motor running outside of Tabetha's school at about the time Tabetha's school day was finished.   Diane instructed Tabetha to get into the car so they could “get Travis.”   Tabetha became scared and ran to her teacher.   Diane also said to Tabetha she would be back some day.   The social worker also reported that Diane was not complying with her reunification plan in that she was not testing for drugs, attending parenting classes or going to therapy.3  The trial court extended the no-contact order to include both minors.

In the report for the February 1990 hearing, the social worker stated she was having difficulty tracking down Diane due to her transient lifestyle, but had contact with her in late November at her therapist's office where Diane admitted to using marijuana, expressed fear she could not “stay clean” and said she would soon begin drug testing.   Diane was not present at the February hearing.   The court continued the minors' dependency status, finding that return of the children to Diane would create a substantial risk of detriment and that reasonable services had been offered or provided designed to aid in overcoming the problems which led to the minors' removal from the home.   The court continued the confidential foster home placements, extended the no-contact order and set a 12–month review hearing for June 1990.

By the time of the June 1990 hearing the social worker reported Diane and Scott B. were located April 30 at a temporary residence in Encinitas and were told of the hearing date and the Department's plan to recommend adoption for both minors.   The social worker reported she had lost track of Diane and Scott B. since December 1989, Diane had stopped seeing her therapist, and there was no proof Diane had attended any meetings of Narcotics Anonymous or submitted to drug tests after November 1989.   Diane and Scott B. did not attend the June hearing.   The court found that reasonable services had been offered or provided but despite these services the parents had failed to make progress toward alleviating or mitigating the causes which led to the removal and there was no substantial probability the minors could be returned to the parents' custody within the next six months.   Further reunification services were terminated.   Tabetha was ordered placed in the home of her maternal great-aunt in North Carolina and Travis was continued in placement with his paternal grandmother.   A hearing under section 366.26 was scheduled for October 1990.

The parents could not be located and served for the October hearing under section 366.26 to terminate the parental rights or establish a guardianship, and the matter was continued so that due diligence declarations could be filed.   The social worker reported in October that the minors were doing well in their placements with the relatives who voiced their desire to adopt.   Even if the placements failed the social worker believed the minors were adoptable and a suitable adoptive home could be found.   A contested hearing under section 366.26 was set for February 1991.

In November 1990 the court ordered service by publication on both parents and confirmed the hearing date in February 1991.   Notice to Diane was duly published in December 1990.

In December 1990 the Department learned Diane gave birth to a child with positive toxicology for controlled substances and a new petition was filed on behalf of the infant with hearings set for January 22 and 29, 1991.   It was reported for the February 1991 hearing that search efforts for Diane were continuing, there had been no change in the status of the case with respect to parent visitation (none since the last hearing) and the status of the permanency planning for the minors was unchanged with them both remaining adoptable and in placements preparing for adoption.   At the hearing set for February 5, 1991, Diane did not appear.   The court requested additional information about Tabetha and continued the matter to February 15, 1991.

Diane appeared at the continued hearing where the court received in evidence the social worker's reports of October 4, 1990, February 5, 1991 and February 15, 1991, a psychological examination of Tabetha and two letters.   The trial court observed and Department's counsel conceded the October 4, 1990, report and the February 5, 1991, report were identical.

It is noteworthy that the February 5, 1991, report contained information about the Department's recent contact with Diane and the fact hearings were scheduled for January 22 and 29, 1991, regarding the infant born “tox positive” in December 1990.   The report gives no information about the outcome of those hearings although it promises to submit to the court any additional information about Diane available before the February hearing.4  Curiously, the February 5, 1991, report contains the statements, “the mother's whereabouts have generally become known,” and “[s]earch efforts for the mother are continuing.”   The February 15, 1991, report reflected the receipt of the recent psychological evaluation of Tabetha.

The Department did not call any witnesses.   There was no direct statement from Tabetha concerning her attitude toward the proposed termination and adoption.   Diane offered no evidence and submitted the matter based on the documentation available.

Department's counsel pointed to the recent therapist's report as showing Tabetha was “doing very well and the placement is stable and excellent for her.”   Department's counsel argued the inapplicability of the exceptions of section 366.26, subdivision (c)(1), paragraphs (A) through (D).  Department's counsel particularly argued the only possibly applicable exception, that in paragraph (A) relating to regular visitation and benefit from continuing the parental relationship,5 did not apply.   Department's counsel relied on the argument, “Tabetha has had no visits with her mother since at least July of 1990.   And there is no beneficial relationship existing in that case.”   Counsel pointed out Travis also has had no visits and no beneficial relationship existed there.

Diane's counsel argued for long-term foster care, pointing out her inability to maintain a relationship with the minors was due to the orders denying visitation and claiming she has complied in great part with her reunification plan.   Diane's counsel made reference to Diane's continuing “with her drug rehabilitation through the Options Program,” and suggested she would be able at some later time to resume her parental role with the minors.   Diane's counsel expressed the belief it was not her fault that the relationship was broken, that was due to a Department decision and she still has a bond with the minors.   Diane then addressed the court, stating:

“THE MOTHER:  Your Honor, I know I have done these children a lot of damage through my failure to drug test.   I feel that the children would be better off with me if I can remain sober, if I continue my sobriety.  [¶] I'm in a program called ‘Option for Recovery’ which is the six-month class and which even after that I would continue to go to “NA” because I found a lot of friends in the 12–step community.

“I don't have any friends in the other world anymore.   And my relatives that they're placed with right now, they're getting up in age.   And I feel like I could be a better parent to them once I, you know, complete this program and graduate from it because we're the one that go to the beach and play baseball and stuff like that with the kids.   And I've learned through the parenting classes how the generations have gone down, have carried into me, to parent my children like I have parented them and stuff.   These feelings of my childhood.   I'm learning to go through this.   I feel like my aunt has had the same parenting as my mother who parented me.   And Tabetha is being placed right now.   I would like to have the children in my care to be able to break this chain.

“I love my children very much.   And I see how my attitude and my behavior has affected them as well as the court.   If they can be placed in long-term foster care, I'd like to be able to get them back as soon as I graduate from this program, ‘Options,’ that I'm in.   I also have another baby that was taken from the hospital which was positive toxin.   I'm reunifying with her.   I just want my children to be together if I'm healthy for them.”

The court then made the findings and order here in question, terminating Diane's parental rights, finding the minors are adoptable by clear and convincing evidence and referring them to the Department for adoption.

DISCUSSION

I *

II

A

As to the order here in question, the termination order under section 366.26, there is a lack of substantial evidence in the form of recent data concerning the status of Diane and the direct views of Tabetha about the termination and adoption.   Under the circumstances of this case, Diane's request for long-term foster care instead of a termination and adoption order was the functional equivalent of a request for a continuance.

A continuance permitting the presentation of evidence concerning Diane's current status could give rise to a finding under section 366.26, subdivision (c)(4), that “adoption of the minor or termination of parental rights is not in the interests of the minor,” with a resulting order for legal guardianship or long-term foster care under that subdivision.   A continuance would also permit the filing of a motion under section 388 to change, modify or set aside the order upon grounds of change of circumstances or new evidence.   (See In re Taya C. (1991) 2 Cal.App.4th 1, 7, 2 Cal.Rptr.2d 810 [91 L.A. Daily J. 15953, 15954, and text accompanying fn. 7].)   There was here involved a matter initiated not by the conduct of Diane but rather by one with whom she lived but who apparently was not involved in her life by the time of the February 1991 hearing.   The record in this case, particularly the February 5, 1991, social worker's report, shows the Department possessed additional information about recent developments in Diane's life, including the circumstances surrounding the outcome of the January hearings regarding the newborn infant.   However, the Department did not fulfill its promise to disclose that information to the court.   The latest report detailing the status of the case in terms of Diane's situation is the October 4, 1990 report, dated months before the new developments came to light and the date of the hearing.   In these circumstances it was inappropriate for the court to proceed to decide the matter without the benefit of the promised additional information that the record indicates was in the Department's possession.

In addition to these considerations we observe it is not weighty evidence that the mother did not visit for a considerable time span when the record shows she was under a court order not to visit for the greater part of the reunification period, from December 1989 to the date of the hearing in February 1991.   The court should place emphasis on the period of time Diane was visiting and the relationship during that time.   If there has been a change of circumstances such as drug rehabilitation, that should be factored into the decision.

B

With respect to Tabetha's views of the prospective termination and adoption, subdivision (g) of section 366.26 provides in part:  “At all termination proceedings, the court shall consider the wishes of the child and shall act in the best interests of the child.”   The subdivision goes on to specify conditions under which the minor's testimony may be taken in chambers outside the presence of the parent or guardian and it sets forth a means for the parent to learn the content of testimony given in chambers.6

There are elements of time, placeand nature of the evidence in subdivision (g)'s language.   The when and where aspects are encompassed in “[a]t all termination proceedings.”   As to the nature of the evidence, the subdivision's repeated references to “testimony” demonstrate the Legislature requires direct evidence of the child's wishes to be presented to the court.

 Thus, it is clear that subdivision (g) reflects a legislative purpose to require the court, in the termination proceeding, to receive evidence consisting of a direct expression of the minor's wishes concerning the matter at hand.   Of course, where the minor is not present 7 or there are age or other limitations on the ability of the minor to communicate to the court at the proceeding, literal compliance with the provision is not possible.   See In re Marcos S. (1977) 73 Cal.App.3d 768, 784–785, 140 Cal.Rptr. 912.   However, where the minor is able to communicate to the court, we believe there must be an effort made to substantially comply with subdivision (g).   Any of several possible substitutes for testimony in court or in chambers come to mind, including reports prepared for the hearing, letters, telephone calls or electronic recordings.   In reaching this conclusion, we do not imply a holding that the child is required to be present at the proceeding in order to accomplish this result.

 Here, there was a description of the minor Tabetha's recently expressed wishes communicated to the court in the February 13, 1991, report of a North Carolina psychologist that was received by the court.   The psychologist's report contains a statement that Tabetha “is extremely confused and negative about her relationship with her mother ․ and is adamant that she wishes no contact whatsoever with her.”   Were this a statement by Tabetha, made in the context of a showing Tabetha was then aware she was participating in a proceeding to decide the permanent termination of her relationship with Diane as her mother, it would suffice as an expression of the child's wishes as required by subdivision (g).   However, the statement is not a quotation of Tabetha's words and, even if it is an accurate presentation of Tabetha's expressions, it does not show the context in which it was made.   Thus, the statement in the psychologist's report does not represent substantial compliance with subdivision (g)'s express requirement that the court consider the wishes of the child in all termination proceedings and its implied requirement that those wishes of the child be expressed to the court at the proceeding.

We reverse and remand for the court to reconsider the matter in the light of updated, fresh information concerning the status of the mother and an expression of Tabetha's wishes.

DISPOSITION

Order reversed.

FOOTNOTES

FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

3.   In the social worker's report of February 1, 1990, she reported a December 13, 1989, telephone conversation with Diane's therapist in which the therapist stated Diane “is regularly attending therapy.”

4.   After informing the court of the scheduled January hearings with respect to the new-born infant, the February 5, 1991, report states:“If additional information on the mother becomes available prior to this hearing it will be submitted for the Court's consideration.”

5.   Section 366.26, subdivision (c), provides that the court shall terminate parental rights only if it first finds by clear and convincing evidence it is likely the minor will be adopted.   Subdivision (c) further provides that certain findings in addition to the adoptability finding “shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor due to one of the following circumstances:“(A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship․”

FOOTNOTE.   See footnote 1, ante.

6.   In full, subdivision (g) of section 366.26 reads:“(g) At all termination proceedings, the court shall consider the wishes of the child and shall act in the best interests of the child.“The testimony of the minor may be taken in chambers and outside the presence of the minor's parent or parents if the minor's parent or parents are represented by counsel, the counsel is present, and any of the following circumstances exist:  [¶] (1) The court determines that testimony in chambers is necessary to ensure truthful testimony.  [¶] (2) The minor is likely to be intimidated by a formal courtroom setting.  [¶] (3) The minor is afraid to testify in front of his or her parent or parents.“After testimony in chambers, the parent or parents of the minor may elect to have the court reporter read back the testimony or have the testimony summarized by counsel for the parent or parents.“The testimony of a minor also may be taken in chambers and outside the presence of the guardian or guardians of a minor under the circumstances specified in this subdivision.”

7.   Section 366.26, subdivision (e)(1), provides in part:  “The minor shall not be present in court unless the minor so requests or the court so orders.”

TODD, Associate Justice.

WIENER, Acting P.J., and BENKE, J., concur.

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