Santa Clara County Department of Social Services v. Ann P.

212 Cal. App. 3d 734, 260 Cal. Rptr. 810, 1989 Cal. App. LEXIS 761
CourtCalifornia Court of Appeal
DecidedJuly 27, 1989
DocketNo. H004591
StatusPublished
Cited by1 cases

This text of 212 Cal. App. 3d 734 (Santa Clara County Department of Social Services v. Ann P.) 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
Santa Clara County Department of Social Services v. Ann P., 212 Cal. App. 3d 734, 260 Cal. Rptr. 810, 1989 Cal. App. LEXIS 761 (Cal. Ct. App. 1989).

Opinion

Opinion

AGLIANO, P. J.

The department of social services (DSS) and the minor, Emily L., appeal from a judgment denying the department’s petition to terminate the parental rights of the minor’s mother, respondent Ann P., pursuant to Civil Code section 232.1 Appellants contend the trial court erred as a matter of law in declining to terminate respondent’s parental rights in the face of undisputed evidence compelling termination. We agree for the reasons stated below and reverse the judgment.

Facts

Emily L., born prematurely April 24, 1985, was placed in protective custody directly from the hospital when she was three weeks old. A petition [737]*737was filed in juvenile court alleging the minor’s mother had no permanent home, two of the minor’s half-siblings were the subjects of section 232 proceedings, and a third half-sibling was a dependent child of the court who was undergoing a permanency planning hearing. Emily was declared a dependent child on October 18, 1985. (Welf. & Inst. Code, § 300, subd. (a).) In December 1985 she was placed in a foster-adoptive home, where she has since remained.

Respondent has a long history of drug and alcohol abuse, and an extensive criminal record dating back to 1977. When dependency was declared she was in custody on drug-related charges. The reunification service plan established for her included requirements that she complete a drug counseling program, refrain from possession or use of alcohol and illegal drugs, complete a parenting class, obtain stable housing, and visit regularly with Emily.

During the six-month period covered by this service plan, respondent enrolled in a parenting class and a drug program, and she visited twice with the minor at the jail facility. She did not obtain stable housing or the resources to pay for housing, however, and the social worker was not yet satisfied she would remain drug free. Nevertheless, due to respondent’s incarceration and the lack of a “fair opportunity” to reunify with the minor, the social worker recommended extending services six more months. A second service plan was therefore signed on June 10, 1986, calling for the same conditions as the first, with an additional requirement that respondent submit to random drug testing. During the ensuing period respondent completed the parenting class, for which she received a “glowing evaluation,” and she visited weekly with the minor. These visits became unsupervised in her home until respondent twice tested positive for PCP. She then entered a residential drug treatment program.

On November 7, 1986, an 18-month permanency planning hearing was held. The social worker recommended long-term foster care to avoid the legislative mandate to terminate reunification services after 18 months: “We could no longer recommend continued reunification so the choices were to recommend terminating parental rights, returning the child home or long-term foster care, [fl] At this point in time Ann was not in a position to have her child returned, and I wanted to give her more time to reunify so I didn’t want to recommend terminating her rights at that hearing so this was the only other choice I had.” The juvenile court adopted that recommendation. A third service plan was provided respondent, though she did not sign it. Visitation continued as before, until December 1986, when a scheduled extended visit was canceled because respondent had failed to appear for drug testing since early November 1986. The social worker informed [738]*738respondent that further visits would be arranged as soon as she provided a “clean” drug test; respondent repeatedly promised to appear for the tests but never did.

At the postpermanency planning hearing on April 24, 1987, the social worker changed her recommendation to a permanent plan of adoption. She felt that “things with Ann had deteriorated” to the extent that she could not foresee reunification. Accordingly, the juvenile court ordered that termination proceedings be initiated under Civil Code section 232 to facilitate the plan of adoption.

On September 9, 1987, DSS filed a petition to free Emily from respondent’s custody and control under section 232, subdivision (a)(7).2 The petition alleged that Emily had been in out-of-home care since September 1985, and that during this period respondent had failed, and was likely to fail in the future, to provide a home, care, and control of the minor despite the provision of reunification services. DSS concurrently filed a petition under section 7017 to terminate the parental rights of Emily’s natural father, who had never shown any interest in her. The petition as to the father was granted October 23, 1987.

Hearing was conducted on April 12 and May 2, 1988. The minor’s social worker testified regarding her efforts to promote “unification” between respondent and the minor, and described respondent’s failure to comply with the three service plans provided.

Respondent, who was again in custody on drug-related charges, testified on her own behalf. She stated that she lived with a stable man who did not drink or use drugs, and that she had not used illegal drugs for about 10 months. She also stated that she had a job waiting for her upon her release from jail in July. Finally, she testified there were no pending criminal charges, and the sentence she was then serving was for a crime committed over three years earlier.

On cross-examination, respondent admitted that she had pled guilty in March 1988, to being under the influence of PCP on November 28, 1987, and that there was in fact a pending charge against her of being under the influence of PCP in the county jail on December 31, 1987. She also [739]*739acknowledged that her other three children had been freed from her custody and control.

The probation officer’s report indicated that respondent’s previous employer was not holding her job for her, but he might be willing to hire her in another capacity. Examination of respondent’s recent criminal history confirmed the November 1987 incident and the December 1987 charge, and revealed an additional conviction in October 1987 for public drunkenness (Pen. Code, § 647, subd. (f)). In an interview with the probation officer, respondent felt she had resolved her drug problem, as she had “gotten ‘loaded’ [on PCP] only once during the past six months.” The probation officer found “nothing positive” in respondent’s recent history, and concluded that it was “simply unfair to Emily to hold her ‘in limbo’ waiting for a reformation which might never occur.”

DSS urged the court to grant the petition so that Emily could have stability as a permanent member of an adoptive home. Counsel noted the minor was three years old, had never been in respondent’s custody, and had not even seen respondent for more than sixteen months.

The trial court, in denying the petition, found there had been no instability in the child’s life, as she had been in the same foster home for over two years. Furthermore, since “the mother is in jail, and she has got a long ways to go, and she is going to convince everybody she is a good mother. . . . what I am asking is what is the rush?” The court sympathized with respondent’s status as a member of a “subculture” of alcoholics and drug addicts who “have very slim chances of getting themselves out of the predicament they are in, and . . . are given a blueprint for success . . . which they are not capable of succeeding at. . . .

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Related

In Re Emily L.
212 Cal. App. 3d 734 (California Court of Appeal, 1989)

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Bluebook (online)
212 Cal. App. 3d 734, 260 Cal. Rptr. 810, 1989 Cal. App. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santa-clara-county-department-of-social-services-v-ann-p-calctapp-1989.