Los Angeles County Department of Children & Family Services v. Daniel R.

75 Cal. App. 4th 1093, 89 Cal. Rptr. 2d 664, 99 Daily Journal DAR 10979, 1999 Cal. App. LEXIS 939
CourtCalifornia Court of Appeal
DecidedSeptember 22, 1999
DocketNo. B125875
StatusPublished
Cited by81 cases

This text of 75 Cal. App. 4th 1093 (Los Angeles County Department of Children & Family Services v. Daniel R.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Los Angeles County Department of Children & Family Services v. Daniel R., 75 Cal. App. 4th 1093, 89 Cal. Rptr. 2d 664, 99 Daily Journal DAR 10979, 1999 Cal. App. LEXIS 939 (Cal. Ct. App. 1999).

Opinion

Opinion

LILLIE, P. J.

Yolanda R. and Daniel R., the mother and father of Andrea R., born September 16, 1990, appeal from a September 15, 1998, order terminating their parental rights (Welf. & Inst. Code, § 366.26)1 and referring Andrea for adoption, six years after Andrea was removed from parental custody.

Appellants contend (1) after the establishment of a legal guardianship of Andrea, they were entitled to a full evidentiary hearing on the issue of changed circumstances under section 366.3, subdivision (c), prior to the court’s holding a new section 366.26 hearing; (2) the trial judge abused her discretion in terminating parental rights because she was new on the case, refused Yolanda R.’s request that Andrea testify, and failed to consider the strong parent/child relationship under section 366.26, subd. (c)(1)(A); and (3) the court abused its discretion in summarily denying a section 388 petition for modification lodged by Yolanda R. on April 29, 1998.

Factual and Procedural Background

At the time of Andrea’s birth in September 1990, Yolanda R. had quit using heroin and was in a prenatal methadone program; her two older daughters by a different father had been made dependents of the court and the paternal grandmother had been granted guardianship of them in 1986. Yolanda’s relationship with Andrea’s father began in 1989. After Andrea was born, Yolanda R. began using drugs again. Daniel R., who was a registered drag offender with a criminal history, apparently did not live with Yolanda R. When Andrea was about a year old, Yolanda’s brother took over her primary care; in July 1992, Yolanda’s brother died suddenly and [1097]*1097Yolanda again took custody of Andrea. In September 1992, Yolanda was evicted from her apartment; she was with Andrea in the welfare office applying for homeless assistance when she appeared intoxicated and unconcerned about supervising her toddler; Yolanda told the social worker that she was on methadone.

On September 24, 1992, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of Andrea, which alleged, as later sustained under section 300, subdivision (b), that Yolanda had a history of heroin use which limited her ability to care for her child. Andrea was placed in the home of her maternal cousin, Eleanor Z., known to Andrea as Aunt Eleanor. In January 1993, Yolanda was arrested for being under the influence of a controlled substance and the petition was amended to include allegations that Yolanda’s heroin use made her unable to safely care for Andrea. Neither Yolanda nor Daniel R. appeared for a disposition hearing on March 30, 1993, when the court ordered Andrea removed from her parents’ custody and ordered family reunification services; Yolanda was to participate in drug counseling and testing; father was to participate in counseling as directed by the parole department.

The social worker’s report dated September 28, 1993, noted that Yolanda had been incarcerated for most of the last six months and had one monitored visit since her release from jail; she appeared to be transient and had not enrolled in a drug program; Daniel R. had not sought visitation nor contacted DCFS. Andrea was happy living with her Aunt Eleanor, who had expressed an interest in guardianship or adoption of Andrea if reunification failed. An adoption assessment completed in December 1993 stated that Andrea was appropriate for adoption and that her aunt wished to adopt her.

In early 1994, Daniel R. began regular visits with Andrea and expressed a desire to be involved with her; Yolanda’s whereabouts were unknown. In March 1994, the social worker recommended guardianship for Andrea with her aunt. In the spring of 1994, Daniel R. was permitted to take Andrea to visit Yolanda for four hours on the weekends; in June 1994, the parents had a verbal argument and Daniel left Andrea with Yolanda at her residence, the Sober Living Home; the social worker recommended that parent/child visits be monitored by a DCFS social worker. In August 1994, Yolanda started a drug rehabilitation program but was discharged several weeks later because she had a positive test for heroin and had a negative impact on other clients at the program; Yolanda admitted that she was colluding with others to obtain another person’s urine for her drug testing and to deceive the court. The social worker’s report for August 1994 noted that although Daniel R. had services offered to him for about 21 months, he still had no stable [1098]*1098residence and appropriate daycare arrangements for Andrea while he worked on his construction job; he previously resided in his mother’s home or slept in his truck on a construction job site. The report also stated that the parents had an “entangled” relationship and frequently engaged in open battle with verbal obscenities in front of the child, who was even,caught in a physical tug-of-war between her parents; Andrea had cried and was visibly shaken. The social worker also recommended adoption planning.

The social worker’s September 1994 report noted that Andrea was coming home from visits with her father in an unmanageable condition, aggressive, haughty, and having tantrums; Andrea said that her father would secretly take her to see her mother, and her parents told her to keep it a secret; the court had apparently ordered that a social worker, and not the father, was to monitor the mother’s visits. Aunt Eleanor told DCFS that she could not bear up under the pressure from the parents, who told Andrea that she did not have to obey her caretakers because they were not her parents; the social worker found it clear that Andrea was being coached to lie or be dishonest with the social worker and that Andrea was being told not to trust the social worker or the court with her safety. Because the aunt was requesting that Andrea be placed elsewhere, the social worker recommended adoption for Andrea, as it afforded Andrea more stability and was in her best interest. A subsequent report stated that Andrea had symptoms of emotional distress, was confused and concerned about who loved her and what would happen to her in the future.

On January 23, 1995, when Andrea was four years old and had lived with her aunt for about two and one-half years, Eleanor Z. contacted DCFS and requested that Andrea be removed due to marital and financial problems. Andrea was thereafter placed in the foster home of Don and Carolyn H., where she lived for about another two and a half years. Although Don and Carolyn H. provided a good home for Andrea and she was happy there, they did not want to adopt her. Pursuant to a mediated agreement approved by the court on March 28, 1995, Andrea was to be released to Daniel R. once he secured adequate housing and an approved child care plan, but he was not to monitor visits with Yolanda R. The matter was continued for two months, however Daniel R. did not appear at the May 1995 hearing and did not visit Andrea from May 1995 to November 1996; Daniel R. claimed that he only failed to visit Andrea for a nine-month period, and that he was working in Las Vegas at the time. Yolanda, who in May 1995 was pregnant by a man other than Daniel R., visited with Andrea only sporadically during this time; the social worker’s September 1995 report stated that Yolanda had only had two visits with Andrea in the last nine months.

At a section 366.26 hearing on September 27, 1995, the court terminated family reunification services and found that Andrea was adoptable and that [1099]

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Bluebook (online)
75 Cal. App. 4th 1093, 89 Cal. Rptr. 2d 664, 99 Daily Journal DAR 10979, 1999 Cal. App. LEXIS 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/los-angeles-county-department-of-children-family-services-v-daniel-r-calctapp-1999.