IN RE: the Abandonment of JOSE F.

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Court of Appeal, Second District, Division 7, California.

IN RE: the Abandonment of JOSE F., Diocelina P., Juan P., Minors. LOS ANGELES COUNTY DEPARTMENT OF ADOPTIONS, Petitioner and Respondent, v. ERNESTINA V., Appellant.

Civ. 70001.

Decided: March 18, 1986

Lydia B. Sanchez, under appointment by the Court of Appeal, for appellant. John H. Larson, County Counsel, and Tom Tyrrell, Deputy County Counsel, for petitioner and respondent.

Ernestina V. appeals from an order under Civil Code section 232, subdivision (a)(7) freeing three of her minor children from her custody and control.   We reverse for a new trial limited to the issue of whether reasonable services designed to reunite the family were provided or offered to Ms. V.

FACTS AND PROCEEDINGS BELOW

Ms. V. is the mother of Jose, Diocelina and Juan, the children affected by the court's order.1  In December 1978, the children were adjudged dependent children under Welfare and Institutions Code section 300 and placed in foster homes under the supervision of the county welfare department.   Jose and Diocelina were placed together;  Juan was placed separately.

Although there was some initial concern over Juan's health, the major reason for the county's intervention was the family's cramped and dirty living quarters.   Initially, all five of Ms. V.'s children were made dependents of the court and placed in foster care.   The two oldest children were later returned to Ms. V. but remained dependents.   The dependency and placement orders were continued for Jose, Diocelina and Juan at each review and, in June 1981, the children were referred for adoptive planning.

In the years the children have resided in foster homes Ms. V. has visited them on numerous occasions.   Nevertheless, over the years the bonding between Ms. V. and the children has given way especially with Juan who was only one year old at the time of placement.   Ms. V.'s housing situation has not improved.   At the time of trial she was residing in an apartment with another woman and six children.   Ms. V. has given birth to two children since the commencement of the dependency proceeding.   The social workers who observed Ms. V. with all her children and the court-appointed psychologist who interviewed Ms. V. agreed her parenting skills were minimal.

The trial court sustained the petition to free the children from Ms. V.'s custody and control under the provisions of Civil Code section 232, subdivision (a)(7).   At the time the case was tried and the trial court announced its decision from the bench, section 232, subdivision (a) provided, in relevant part,

“An action may be brought for the purpose of having any person under the age of 18 years declared free from the custody and control of either or both of his parents when such person comes within any of the following descriptions:

“ * * * * * *

“(7) Who has been cared for in one or more foster homes, ․ under the supervision of the juvenile court, the county welfare department or other public or private licensed child-placing agency for two or more consecutive years, providing that the court finds by clear and convincing evidence that return of the child to his parent or parents would be detrimental to the child and that the parent or parents have failed during such period, and are likely to fail in the future, to do the following:

“(i) Provide a home for the child;

“(ii) Provide care and control for the child;  and

“(iii) Maintain an adequate parental relationship with the child․”

ISSUES

On appeal, Ms. V. contends the evidence was insufficient to sustain the petition and the county failed to provide her mandated services designed to reunite the family.   We reject the first contention but we find the second may be meritorious.   Therefore we are reversing the judgment and remanding the case for a new trial on the issue of services in light of the 1982 amendment to section 232 subdivision (a)(7).2

DISCUSSION

A. THERE WAS SUFFICIENT EVIDENCE TO ESTABLISH THE ELEMENTS NECESSARY UNDER SECTION 232, SUBDIVISION (a)(7) AT THE TIME THE CASE WAS TRIED.

 As we explain in part B infra, pp. 243–246, a new trial is necessary in this case.   However, it is not necessary to retry every issue.   Leaving aside the question of reunification services, which we discuss in part B, there was sufficient evidence from which the court could conclude, under the circumstances presented, the other requirements for termination of parental custody and control were satisfied.

Section 232, subdivision (a)(7) at the time of trial, as now, requires the trial court must find the minor comes within the statutory description by clear and convincing evidence.   As a reviewing court, we do not exercise our independent judgment on or reweigh the evidence.   Our task is to determine whether there is sufficient evidence to support the findings of the trial court.  (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 586, 211 Cal.Rptr. 827.)

In order to obtain a judgment terminating parental rights under section 232, subdivision (a)(7), at the time of trial the petitioner was required to establish the child had been in a foster home under the supervision of certain described agencies for two consecutive years and establish by clear and convincing evidence returning the child to the parents would be detrimental to the child and that the parents have failed and are likely to fail in the future to provide a suitable home, care and control and an adequate parental relationship.

It is undisputed the children were in foster care for more than two years when the petition was filed.

In the intervening years, Ms. V.'s situation had not improved with respect to the children.   If anything, the birth of two additional children made it even more difficult for Ms. V. to provide shelter, care and control for the children and maintain an adequate parental relationship with them.   At the time of the hearing, Ms. V. was sharing an apartment with another woman.   Six children lived in the apartment.   Ms. V. had never been able to find a home large enough for herself and five children, much less seven.   Providing adequate parental care and control of seven children is a difficult task under the best of circumstances.   For a single parent the task would be even more difficult, especially where the parent has “limited ․ parenting skills” to begin with.   Finally, due to the time the children have been in foster care, their parental relationship with Ms. V. has necessarily declined.   With Juan, it is virtually non-existent.

It is apparent from the evidence that, at least without appropriate services, Ms. V. was not able to provide the children a suitable home, support, care and a parental relationship and return of the children to Ms. V. would be detrimental to the children.

After the trial judge announced his decision from the bench but before the judgment was entered, an amendment to section 232, subdivision (a)(7) went into effect under a finding of emergency.  (Stats.1982, ch. 978, §§ 1, 78.)   Among other things, the amendment added a new paragraph to subdivision (a)(7) which reads as follows:

“The court shall make a determination that reasonable services have been provided or offered to the parents or guardians which were designed to aid the parents or guardians to overcome the problems which led to the deprivation or continued loss of custody and that despite the availability of these services, return of the child to the parents or guardians would be detrimental to the child.   Probation officers or social workers who provided these services shall appear at the termination proceedings.”

The amendment made a significant change in California law.   It made the provision or at least offering of reunification services mandatory in the case of children placed in foster care.   It did this by requiring the petitioner as part of its case to prove such services had been provided or offered but without success.   Prior to the amendment, California case law encouraged but did not mandate social services to parents whose children were in foster care.   The failure of the county welfare department to offer or provide services was not fatal to a petition to terminate parental custody and control.   Rather, it was within the trial court's discretion to order services and delay the proceedings pending the results.  (In re Angelia P. (1981) 28 Cal.3d 908, 923, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Jacqueline G., supra, 165 Cal.App.3d 582, 591, 211 Cal.Rptr. 827.)

As we explain in part B, infra, pp. 243–244, the 1982 amendment is applicable to this case.   Because the court failed to make the determination required by the amendment, substantial evidence to support the determinations the court did make are insufficient to sustain the judgment.  (Cf. In re David C. (1984) 152 Cal.App.3d 1189, 1211, 200 Cal.Rptr. 115;  In re R.S. (1985) 167 Cal.App.3d 946, 966–968, 213 Cal.Rptr. 690.)

B. A NEW TRIAL IS REQUIRED TO DETERMINE IF THE COUNTY PROVIDED OR OFFERED REASONABLE SERVICES DESIGNED TO REUNITE THE FAMILY AND WHETHER, DESPITE THE AVAILABILITY OF THESE SERVICES, RETURN OF THE CHILDREN TO THEIR MOTHER WOULD BE DETRIMENTAL TO THEM.

The passage of the amendment requiring reunification services requires us to address three questions.   Was the trial court required to apply the amended provisions of section 232, subdivision (a)(7) to this case?   If so, was its failure to do so prejudicial error?   If the error was prejudicial, was the error waived by Ms. V.'s failure to bring the amendment to the court's attention?

1. The Amendment to Section 232 (a)(7) Is Applicable to This Case.

 Whether a cause is governed by a statute that takes effect prior to judgment depends on several factors.   If the statute is procedural or remedial it applies to pending cases.  (Republic Corp. v. Superior Court (1984) 160 Cal.App.3d 1253, 1257, 207 Cal.Rptr. 241.)   If the statute affects substantive rights—changes the legal effect of past events—it will not be applied to a pending case unless a legislative intent it be applied is clearly expressed and its application will not interfere with vested rights or impair contractual obligations.  (Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 594, 97 Cal.Rptr. 30;  Westfield-Palos Verdes Co. v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 486, 493, 141 Cal.Rptr. 36;  McBarron v. Kimball (1962) 210 Cal.App.2d 218, 220, 26 Cal.Rptr. 379.)

The amendment at issue here requires the court to make certain determinations of fact affecting severance of the parent-child relationship and, therefore, is couched in procedural and remedial terms.   It also makes a change in the substantive law because, before the amendment, reunification services were not required to be provided or offered in order to obtain a judgment declaring a child free from parental custody and control under section 232, subdivision (a)(7) (See discussion, supra, pp. 242–243.)   The amendment is, therefore, “substantive” because if applied in the case at bench it would give the previous transactions between the county welfare department and Ms. V. a different legal effect from that which they had under the law when they occurred.  (Abrams v. Stone (1957) 154 Cal.App.2d 33, 40, 315 P.2d 453.)

Assuming the amendment should be treated as substantive for purposes of determining its applicability to the case before us, we conclude the Legislature intended the amendment to have a retroactive effect.

 The Legislature need not say it intends the statute to apply retroactively if, considering “all pertinent factors”, such was the Legislature's intent.  (In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371.)  “A wide variety of factors may illuminate the legislative design, ‘such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ ”  (Ibid.)

 The fact the statute was enacted as an urgency measure “necessary for the immediate preservation of the public peace, health, or safety” (italics added) is itself evidence of legislative intent it apply to pending cases.

In addition to context, other pertinent factors identified in Bouquet are present here.   The specific reason given for treating the statute as an urgency measure was to conform state law to a federal statute, Public Law 96–272, which took effect in June 1980.  (See Stats.1982, ch. 978, § 78.)   This federal legislation was intended to lessen the emphasis on foster care placement and to encourage greater efforts to find permanent homes for children either by making it possible for them to return to their own homes or by placing them in adoptive homes.  (Sen.Rep. No. 96–336, 2d Ses., p. 1 (1979) U.S.Code Cong. & Admin.News 1980 p. 1448.)   To accomplish this goal Congress required the states, as a condition of federal financial assistance in their foster care and adoption programs, to establish, on or before October 1, 1982, specific goals as to the number of children who will remain in foster care in excess of twenty-four months, (42 USC, § 671, subd. (a)(14)) and effective October 1, 1983, to provide reasonable efforts be made to make it possible for the child to return to his home.  (42 USC, § 671, subd. (a)(15).)   The law also required the state agency administering the program to develop a case plan for each child receiving foster care payments including a plan for assuring services are provided to the parents in order to improve the conditions in the parent's home and facilitate return of the child to his own home.  (42 USC, §§ 671, subd. (a)(16);  675, subd. 1.)

 The federal and state laws reflect a public policy decision children should be reunited with their natural parents whenever possible.  (Comment, Senate Bill 14:  California Foster Drift Solutions [etc.] (1983) 18 U.S.F.L.Rev. 301, 302–303.)   Without providing reunification services 3 to the parents the stipulation in the statute “the parents ․ are likely to fail in the future” to provide for the child's well-being is a self-fulfilling prophecy in most cases.   In the construction of a statute supporting the exercise of a fundamental right 4 if the reason of the statute extends to past transactions, as well as to those in the future, that, too, is probative evidence the Legislature intended the statute should be applied to pending cases.  (Cf. Abrams v. Stone, supra, 154 Cal.App.2d 33, 42, 315 P.2d 453.)

 All the indicators of legislative intent ascertainable in this case call for the retroactive application of the amendment.   We conclude, therefore, the requirement of a determination reunification services were provided or offered is applicable to this case.

2. Failure to Apply the Amendment to This Case Was Prejudicial to Ms. V.

We are convinced after an examination of the entire case, including the evidence, it is reasonably probable a result more favorable to the appellant would have been reached had the trial court considered the issue of reunification services.

The trial judge himself suggested as much when he stated, in rendering his decision,

“This is an extremely difficult case, a tragic case, I think in respects because I don't know what the status of the case would be today if there had been certain kinds of services provided.   And perhaps if there had been a different approach taken to the case by the Department of Public Social Services.   If counseling had been more successful, the posture of the case today is maybe to some extent beyond Miss Villa's control.”  (Italics added.)

There is strong evidence the county welfare department did not provide or offer services to Ms. V. designed to overcome the problems which led to the loss of custody of her children.

According to Ms. Henry, the social worker assigned to the children, the major obstacle to reuniting the family was Ms. V.'s lack of adequate housing.   Based on the record before us, no efforts were made to assist Ms. V. overcome this obstacle.   Ms. Henry testified, “[W]e can refer the client where to go to look for housing.   But we cannot take them or we cannot find the housing for them.”   There is no evidence Ms. V. was even given the minimal service of a referral to possible housing sources.

A second obstacle to the return of the children was concern over Ms. V.'s ability to provide adequate care and control for the children.   Mr. Coronel, the adoptions worker assigned to evaluate Ms. V. as a parent, testified he gave Ms. V. “a couple of referrals” to parenting classes.   He stated she did not participate in such a program “while I was involved with her” but “she did at some point.”   Mr. Coronel's involvement with Ms. V. consisted of two one-hour visits between September and December 1981.   He provided no details about the parenting classes to which he referred Ms. V. in terms of their appropriateness to her situation, their availability or accessibility.   There is no evidence he followed up with Ms. V. to see how his referrals had worked out or whether additional efforts needed to be made.   Ms. Henry's efforts were just as superficial.   She testified she contacted a counseling agency on Ms. V.'s behalf.  “[T]he Spanish-speaking counselor said he had no vacancies.   I had to wait for an appointment.”   There was no testimony Ms. Henry followed up this contact, asked the counselor to contact her or Ms. V. when a vacancy occurred or gave Ms. V. the information so she could follow up.

Ms. Henry's attitude toward this case appears to have been it was hopeless to try to reunite Ms. V. and the children and that adoption was the only solution.   We base this observation on the record before us.   Ms. Henry recommended adoption in her first report to the court in the dependency case.   Prior to making this report, the only “service” Ms. Henry had provided Ms. V. was a referral to a counseling agency that had no vacancies.   Furthermore, it was not part of her “case plan” to see that Juan, who was in a separate foster home, ever visited with Jose and Diocelina.  (The adoption plan was that Jose and Diocelina would be adopted by the same family and Juan adopted by another family.)

Ms. Henry testified at trial counseling for Ms. V. could not “realistically” be considered due to Ms. V.'s work hours, the number of children she had and the limited availability of counseling programs for Spanish-speaking persons.   She did not explain the basis for her opinion and her opinion is suspect given her lack of effort in this direction and the fact Ms. V., on her own, did find one counseling program which she attended for over a year.   As far as we can tell from the record, Ms. Henry made no attempt to assist Ms. V. find adequate housing despite her view lack of adequate housing was the major barrier to reunification of the family.   Ms. Henry testified, “I spoke [to Ms. V.] about the possibility of housing projects at one time.”   She did not elaborate as to what she said to Ms. V. about housing projects.

The evidence suggests Ms. V. would have accepted services had they been offered.   She entered a counseling program soon after the children were taken from her.   Apparently she found this counseling program on her own.   None of the social workers who testified took credit for the referral.5  Also, on her own initiative, without help from any social worker, Ms. V. applied for government-assisted housing and conducted her own search for a house large enough to accommodate all her children.

3. Application of the Amendment to This Case Was Not Waived by Failure to Call It to the Trial Court's Attention.

 There are exceptions to the rule appellate courts will not consider points not raised below.  (9 Witkin, Cal. Procedure, Appeal, § 311, pp. 321–322.)   One such exception applies when the issue involves public policy (United Calif. Bank v. Bottler (1971) 16 Cal.App.3d 610, 616, 94 Cal.Rptr. 227) or is of considerable public interest.  (Wong v. DiGrazia, supra, 60 Cal.2d at p. 532, 35 Cal.Rptr. 241, 386 P.2d 817;  Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.)

There can be no doubt public policy permeates the decision to permanently sever the natural ties between parent and child.  (See In re Angelia P., supra, 28 Cal.3d at p. 917, 171 Cal.Rptr. 637, 623 P.2d 198;  In re Susan M. (1975) 53 Cal.App.3d 300, 310–311, 125 Cal.Rptr. 707.)   Nor is there any doubt “balanc[ing] the interests of the child in secure and sufficient parenting with the conjoined interests of both parent and child in preserving the familial bond” is a matter of public interest.  (In re Carmaleta B., supra, 21 Cal.3d 482, 491, 146 Cal.Rptr. 623, 579 P.2d 514.)   Surely, if the rule against perpetuities merits consideration for the first time on appeal (see United Cal. Bank v. Bottler, supra, 16 Cal.App.3d 610, 94 Cal.Rptr. 227 and Wong v. DiGrazia, supra, 60 Cal.2d 525, 35 Cal.Rptr. 241, 386 P.2d 817) a question involving deprivation of the “fundamental right” “in the care, custody and companionship of a child” deserves our attention.   (In re Angelia P., supra, 28 Cal.3d at p. 929, 171 Cal.Rptr. 637, 623 P.2d 198.)

The decision in Oldenkott v. American Electric Inc. (1971) 14 Cal.App.3d 198, 92 Cal.Rptr. 127 is distinguishable from the case before us.   In Oldenkott, the plaintiff sued for breach of an employment contract.   At the time of trial, a decision of the United States Supreme Court prevented the defendant from raising a certain defense.   However, prior to entry of judgment in Oldenkott the Supreme Court reversed its earlier decision.   Defendant, American Electric, did not learn of the new Supreme Court decision until after entry of judgment and expiration of the time to move for a new trial.  (Id., at p. 206, 92 Cal.Rptr. 127.)   On appeal American Electric argued the judgment should be reversed to give it an opportunity to present the newly authorized defense.   The Court of Appeal rejected this argument on the grounds the defense was waived by not asserting it in the trial court and there was no evidence suggesting defendant could prove its new defense.  (Id., at pp. 207–208, 92 Cal.Rptr. 127.)

Unlike the federal judicial decision at issue in Oldenkott, in this case we deal with a state statute the Legislature intended apply to pending cases.   The statute is based on public policy rather than private interests.  (See United Calif. Bank v. Bottler, supra, 16 Cal.App.3d at p. 616, 94 Cal.Rptr. 227.)   And, there is a sufficient basis for believing the result would be more favorable to the appellant if a new trial were granted.

DISPOSITION

The judgment is reversed and the trial court is directed to conduct a new trial limited to a determination whether reasonable services have been provided or offered to Ms. V. which were designed to aid her to overcome the problems which led to the deprivation or continued loss of custody of Jose, Diocelina and Juan and whether, despite the availability of these services, return of the children to Ms. V. would be detrimental to the children.

Appellant is awarded costs on appeal.

FOOTNOTES

1.   Unless otherwise noted, our references to “the children” are to Jose, Diocelina and Juan.

2.   Although Ms. V.'s brief does not discuss the 1982 amendment to section 232, subdivision (a)(7) this does not preclude us from raising the issue on our own initiative.  (See Wong v. DiGrazia (1963) 60 Cal.2d 525, 532, fn. 9, 35 Cal.Rptr. 241, 386 P.2d 817.)   Doing so does not prejudice the respondent in this appeal because it did not file a brief.   (See Cal. Rules of Court, rule 17, subd. (b).)

3.   Reunification services include counseling, emergency shelter care, teaching and demonstrating homemakers, parenting training and transportation.  (Welf. & Inst. Code, § 16507.1)

4.   A parent's interest in the care, custody and companionship of a child has been recognized as a fundamental liberty.  (Stanley v. Illinois (1972) 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551;  In re Carmaleta B. (1978) 21 Cal.3d 482, 489, 146 Cal.Rptr. 623, 579 P.2d 514.)   A judgment freeing a child from the custody and control of its parents amounts to the taking of a liberty under the due process clause of the United States Constitution.  (Weinberger v. Wiesenfeld (1975) 420 U.S. 636, 652, 95 S.Ct. 1225, 1213, 43 L.Ed.2d 514;  In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244.)

5.   It is not clear from the record whether this counseling program was related specifically to parenting skills or was directed toward Ms. V.'s experience of depression resulting from the foster care placement of the children.

JOHNSON, Associate Justice:

THOMPSON, Acting P.J., and WADDINGTON, J.*, concur.