Opinion
A133293
12-19-2011
ROSA C., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, et al. Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 0J11017270)
Rosa C. (mother) seeks review (Cal. Rules of Court, rule 8.452; Welf. & Inst. Code, § 366.26, subd. (l)) of an order bypassing reunification services and setting a permanent plan hearing for her dependent son, J.R. Given the nearness of the December 8, 2011 hearing, we ordered it stayed pending our review. We now reject mother's view that insufficient evidence supports a willful abandonment of the child needed to bypass services under section 361.5, subdivision (b)(9) (hereafter subdivision (b)(9)).
All unspecified section and rule references are to the Welfare and Institutions Code and the California Rules of Court.
The provision reads in pertinent part: "(b) Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . . [¶] . . . [¶] (9) That the child has been found to be a child described in subdivision (g) of Section 300 [left without provision for support], that the parent . . . of the child willfully abandoned the child, and the court finds that the abandonment itself constituted a serious danger to the child . . . . For the purposes of this paragraph, 'serious danger' means that without the intervention of another person or agency, the child would have sustained severe or permanent disability, injury, illness, or death. For purposes of this paragraph, 'willful abandonment' shall not be construed as actions taken in good faith by the parent without the intent of placing the child in serious danger."
BACKGROUND
J.R. was taken into protective custody on July 6, 2011, at nearly 16 months old, and was ordered detained on an original petition filed by the Alameda County Social Services Agency (agency) two days later that alleged that mother and one alleged father each failed to protect and failed to provide support. (§ 300, subds. (b) & (g).) A second alleged father was identified by the time of detention, resulting in a petition amendment to add failure to support as to him. Neither man was ultimately located, and the facts and proceedings as to them will be given only passing reference.
All unspecified further dates are in 2011.
Since the age of two months, J.R. had been cared for by Jessica C., but Jessica C. expected to give birth to a child of her own who would need immediate heart surgery, and had no one willing to take care of J.R. without parental support. Jessica C. had begun caring for J.R. in May 2010 because her boyfriend (now gone to be with an ailing parent in Honduras) had known mother and was babysitting J.R. when mother was arrested for selling drugs. Mother was eventually deported to El Salvador. Jessica C. had cared continuously for J.R. ever since, she and her boyfriend not knowing what else to do. Mother had no family in the area, and neither she nor either alleged father ever returned for J.R. or provided support. Jessica C. took the child in as her own but felt taken advantage of because mother and an alleged father posted on Facebook.com and, Jessica C. learned through friends, "were 'partying' and having fun."
Mother, 26 years old, revealed through a jurisdiction report that she was not married to either alleged father and that the originally named one, Velasquez, while named on the birth certificate, was not the biological father. Mother and Velasquez were arrested in San Francisco in May 2010 for selling drugs and deported that year. Mother tried to reenter the country in April 2011 but was "arrested in Texas . . . and subsequently deported back to El Salvador." She was unable to send money for his support because she had just gotten a job and was financially assisting her siblings. She wanted to bring J.R. home and had spoken by phone with the other alleged father, Hernandez, who was then in Canada, but she did not know where he was now, his number having been disconnected. Mother currently worked two jobs (at a hair salon and a restaurant) and went to school. Asked why she left J.R. behind, she said she did not want to but was being deported. She "tried to come back" for J.R. but was arrested in Texas for attempted illegal entry, jailed for three months, and deported again. She had two 2009 arrests in San Francisco, one for selling crack cocaine and the other for a probation violation. She denied ever using drugs.
Jessica C. reported last speaking with Hernandez in late June. He told her he was sending money and a passport for J.R. but never did. He had since left Canada to go to Honduras. Jessica C. and a daughter were very emotional, Jessica C. saying J.R. was not immunized because they were worried they might be arrested or J.R. would be taken from them. She had since spoken with mother, evidently by phone, to relate what was going on, and mother cried and said she wanted her son. Child welfare worker (CWW) Aaron Leavy had also spoken with mother, via a telephone interpreter service, and she expressed a strong desire to reunite with J.R. in El Salvador. She also told Leary and CWW Sylvia Joyner by phone that she had a second child, an 11-year-old son, living with her there and did not want to return to the United States.
Mother remained in El Salvador throughout these proceedings. The petition was sustained in its entirety as to her on August 8 when her counsel, after a continuance to investigate, submitted on the jurisdiction report. Failure to protect was based on her being arrested in May 2010, when J.R. was two months old, her sale of illegal drugs and deportation, a history of substance abuse and dependence, her criminal arrest history, her failure to provide J.R. with adequate food, clothing and shelter, her not providing care, support, or ensuring that J.R.'s medical needs were met, and his having had no immunizations or any other medical care since birth. Failure to provide was based on her arrest and deportation, current residence in El Salvador, failure to provide support or care, and being unable or unwilling to provide J.R. with necessary care, support, and supervision.
While submitting on jurisdiction, mother's counsel did request a contest on the agency's proposal to bypass reunification services, urging that there was no legal basis for it. The matter was continued for that contest to occur on August 18, at the disposition hearing.
A disposition report filed on August 5 urged declaring dependency and bypassing services, but with the agency cooperating with the El Salvadorian Embassy (Embassy) and El Salvadorian Consulate (Consulate) on possible placement of J.R. directly with mother if appropriate. CWW Joyner had spoken with Jose Lagos, a legal counselor on immigration matters at the Embassy in Washington, D.C. about having mother assessed in El Salvador for possible reunification. Lagos had suggested that Joyner forward a letter about the case to Ambassador Francisco Altschul to request the support of the Instituto Salvadoreno de Protection al Menor (the Institute), which could then contact mother to gain her approval and begin an assessment of her readiness for placement. Lagos gave no timeframe for completing that process, but advised that J.R. would need a passport if he went to El Salvador. A second CWW with experience from a similar case recommended working with Consul General Ana Valenzuela in San Francisco for the assessment and with a contact from the Office of Homeland Security in San Francisco to help coordinate legalities for staff transporting J.R. The agency had also a continuance in its jurisdiction report to begin these efforts.
Recent contacts with mother indicated that she had received paperwork from "the CPS agency in El Salvador" (evidently the Institute), that Leary and Joyner had sent her a letter and birth certificate, and ensured that contact information between mother's counsel and Salvadorian officials was given. A conference call with the Embassy was set for the date of the report, August 5.
The report also related J.R.'s general success in a bilingual foster home, visits with Jessica C. (halted when she gave birth three days earlier), progress with vaccinations and medical care, and need for evaluation of a "sacral dimple" that might indicate spina bifida. Ongoing assessment was being made of a non-relative extended family home suggested by Jessica C.
Orders made at the August 18 disposition hearing were based solely on the jurisdiction and disposition reports, no party putting on testimony or other evidence, and the court agreed that various statements by counsel all around, while useful for future investigation, were not evidence for the decisions of the day. One pertinent development was that, as the agency had stated at the jurisdiction hearing in response to concern by J.R.'s counsel that postponing a plan hearing was not in his best interest, the agency was now disposed to set a plan hearing while considering the progress of the case in the intervening time.
The parties accept this state of the evidence for review purposes, and so do we. Moreover, the record statements, spanning such subjects as whether mother had ever met the caregiver, Jessica C., the latest progress with Salvadoran and domestic authorities, anticipated timeframes, and how "practical" it would be for the agency to provide services to mother in El Salvador, are not directly pertinent to our legal analysis.
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The court declared dependency, bypassed services to mother under subdivision (b)(9) on a finding by clear and convincing evidence of willful abandonment by mother, and set a plan hearing for December 8.
DISCUSSION
Mother's challenge to the services bypass is straightforward and limited. She does not dispute support for the jurisdictional finding of failure to provide support under section 300, subdivision (g) (see fn. 2, ante). By her silence on the point, she concedes as well that her actions in leaving J.R. with Jessica C. for over a year without any support created " 'serious danger' [in] that without the intervention of another person or agency, the child would have sustained severe or permanent disability, injury, illness, or death" (§ 361.5, subd. (b)(9)). This is obvious from Jessica C. having to step in as caretaker in the first place, then being unable to obtain proper medical care for the child during serious illness due to lack of proper authorization and fear of her own deportation, and, finally, being unable to give any further care once she expected to give birth to a child of her own with a heart condition.
Mother's argument rests solely on claimed lack of willful abandonment. She reasons: "[D]eportation to her native El Salvador and its unavoidable consequences, including economic inability to offer support [for] her child do not constitute 'willful abandonment.' Admittedly, it may prove impossible to provide reunification services to a foreign national in her native land. However, the rush to permanence mandated by the juvenile court's order will not provide [her] the time necessary to comply with reasonable reunification conditions, which would include establishing the minor's claim to dual-citizenship and the obtaining of a Salvadoran passport in his name."
We reject the argument, starting with its apparent premise that an abandonment under subdivision (b)(9) necessarily requires a subjective intent to abandon.
"Willful Abandonment" Under Subdivision (b)(9)
The interpretation of a statute is a legal question (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011) guided by familiar standards. "Our task in construing a statute is to ascertain the legislative intent to permit us to effectuate the purpose of the law. [Citation.] Looking first to the statutory language, we give the words their ordinary and usual meaning and construe them in the context of the statute as a whole and the entire scheme of law of which it is a part. [Citation.] If the language is clear and a literal construction would not result in absurd consequences that the Legislature did not intend, the plain meaning governs. [Citation.] If the language is ambiguous, we may consider a variety of extrinsic aids, including the purpose of the statute, legislative history, and public policy. [Citation.] When interpreting an ambiguous statute, 'we choose the construction that comports most closely with the Legislature's apparent intent, endeavoring to promote rather than defeat the statute's general purpose, and avoiding a construction that would lead to absurd consequences. [Citation.]' [Citation.]" (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 203 (D.B.).)
The essence of mother's argument is that while she wound up abandoning J.R. for over a year, she never meant to do so but was a victim of circumstance—deported to El Salvador, deported again when she tried to reenter the United States in Texas to retrieve the child, and unable to provide support due to poor economic circumstances in El Salvador. We examine her factual premises later in this opinion.
But first, we reject mother's evident assumption that a willful abandonment under subdivision (b)(9) must include an intent to abandon the child. Some initial uncertainty arises as to whether the word "willful" describes abandonment or simply the actions that result in an abandonment. The term "willfully abandoned" under subdivision (b)(9) is given no all encompassing definition, but is refined to exclude "actions taken in good faith by the parent without the intent of placing the child in serious danger." If we start by giving all of those words meaning, rather than rendering some words surplusage (In re J. W. (2002) 29 Cal.4th 200, 209), the exclusion means that actions must be taken in good faith and without an intent to place the child in serious danger in order to qualify. We also see that an intent to cause "serious danger" obviously refers back to the definition that, "without the intervention" of others, the child "would have sustained severe or permanent [harm]" (fn. 2, ante), and thus necessarily connotes an "intent" to place the child in a situation that, by an objective standard, would cause severe or permanent harm. This supports the idea that actions are what must be intended, not necessarily an abandonment of the child. Finally, the term "good faith" does, in its usual sense, connote subjective well meaning, but it is only one of two elements needed for the exception to apply. The parent must not only act in good faith, but act in a way not likely to cause serious danger, meaning that good faith alone cannot prevent an abandonment. This much is apparent from the words of subdivision (b)(9).
Looking beyond the words themselves, each side concedes a lack of case law construing this aspect of subdivision (b)(9), and each offers an analogy. Mother's is to the probation violation setting, where it has been held that a probationer's failure to report to the probation department was not willful, and thus not a violation, where he was deported upon his release from jail. (People v. Galvan (2007) 155 Cal.App.4th 978, 983-985.) Mother suggests that, "under essentially the same reasoning, one does not willfully abandon one's child by being deported." We find the analogy inapt for two main reasons: one, this case involves circumstances far beyond a mere deportation; and two, the interests of a child are at stake, not just the freedom interests of a probationer. "These proceedings are ' "designed not to prosecute a parent, but to protect the child." ' [Citation.]" (In re Josiah Z. (2005) 36 Cal.4th 664, 673.)
A far more apt analogy, from the agency, is to abandonment as a ground for freeing a minor from parental custody and control. Family Code section 7822 provides in part: "(a) A proceeding under this part may be brought . . . [¶] [where:] The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child's support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child." (Italics added.) The declared purpose of that part is "to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life" (Fam. Code, § 7800) and balances the parental rights involved, virtually the same as the dependency law. (In re Josiah Z., supra, 36 Cal.4th at p. 673; In re Jasmon O. (1994) 8 Cal.4th 398, 419; In re Marilyn H. (1993) 5 Cal.4th 295, 306-307.) Like subdivision (b)(9), the emancipation law also requires an abandonment finding to be made on clear and convincing evidence. (Fam. Code, § 7821.) It differs by specifying that six months of failure to provide support or communicate is "presumptive evidence of the intent to abandon," and that the court may declare a child abandoned where a parent has made "only token efforts to support or communicate with the child" (Fam. Code, § 7822, subd. (b)), but its requirement of intent to abandon is highly similar, in parallel circumstances, to the requirement of willful abandonment in subdivision (b)(9).
The "intent to abandon" in Family Code section 7822, subdivision (a), is construed, in light of legislative purposes to give the child the stability and security of an adoptive home and protect his or her interests and welfare (Fam. Code, §§ 7800-7801), to mean that a parent need not intend to abandon the child permanently. "These purposes 'would be defeated if the intent to abandon requirement . . . were interpreted to "allow an absent parent to totally forsake and desert his [or her] child for years at a time without fear of [losing] parental rights simply because he [or she] had the intent to reestablish the parent-child relationship at some indefinite time in the future." ' [Citation.] Under that construction, a parent could deny an abandoned child 'an adoptive home merely by planning to resume relations with the child when he or she near[ed] adulthood'; such a child might 'effectively . . . be compelled to endure a childhood without any parents at all.' [Citation.] '[A] child's need for a permanent and stable home cannot be postponed for an indefinite period merely because the absent parent may envision renewing contact with the child sometime in the distant future. . . . "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself." ' [Citation.]" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1015-1016, quoting from In re Daniel M. (1993) 16 Cal.App.4th 878, 884.)
The same policy reasons support our construction that willful abandonment under subdivision (b)(9) does not require a subjective intent to abandon but depends, rather, on the specific language of the provision under the totality of the circumstances. A contrary interpretation would produce the absurd consequences noted in the Family Code cases.
Substantial Evidence
And so we apply the language of subdivision (b)(9) to the record and test for substantial evidence of willful abandonment. "We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.] 'In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]' " (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840; In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) The clear-and-convincing standard is primarily for the trial court's guidance and does not alter the basic tenets of review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) It is the juvenile court's role—not ours—to assess the credibility of witnesses, and weigh the evidence to resolve conflicts and conflicting reasonable inferences drawn from that evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) We must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. (Id. at p. 53.) The trier is "free to disbelieve [witnesses] even though they are uncontradicted if there is any rational ground for doing so" (Blank v. Coffin (1942) 20 Cal.2d 457, 461), and so may ordinarily find facts on the basis of inference over direct evidence (ibid.; Cottle v. Gibbon (1962) 200 Cal.App.2d 1, 4).
The evidence shows that mother left J.R. in the care of a babysitter, was arrested for selling drugs in San Francisco, was arrested a second time there, and was eventually deported to El Salvador. She left the child without support, communication, or any arrangement for his long-term care. There is no evidence that she made any effort, upon her deportation, to take the child with her to El Salvador or that anything prevented her from doing so. The deportation itself was certainly not willful, but her decision to sell illegal drugs evidently was, and in any event, the court could reasonably infer, from steps taken during this ensuing dependency proceeding, that the Embassy, Consulate, and Salvadoran agencies provided a path for recovering her child well after the deportation. There is no evidence that she made any efforts of that kind whatsoever, until well into these proceedings.
Mother tried to reenter the United States but was apprehended in Texas for the attempt, and was jailed and ultimately deported again. She claimed that this was an effort to retrieve her child, but the court could reasonably disbelieve her on that score. Nothing in the record explains how, if mother had the resources to travel and make another illegal entry, she could not have used those resources through available means to have her son reunited with her in El Salvador, and the inherent risks of trying to reunite by an illegal reentry, especially after arrest and deportation, logically weighs against her explanation. Nor does any evidence support that her method, even if motivated by a desire to reunite, was in good faith.
As far as the evidence shows, mother's first expressed interest in J.R. came after she realized he was in protective custody and subject to these dependency proceedings, when she had already left J.R. with Jessica C. for well over a year. A strong inference is that she was content to let a stranger keep parenting for her until such time as her legal rights to the child were threatened. Her 11th hour efforts to cooperate with counsel, the agency, and Salvadoran authorities, were in context merely token efforts and taken after what the evidence shows was already established as a willful abandonment.
Substantial evidence supports the court's finding that she willfully abandoned J.R. within the meaning of subdivision (b)(9). Reunification services were therefore properly denied, and while she raises a potentially separate argument that the setting of the plan hearing was further error, she presents no pertinent argument to that effect, beyond her argument that bypassing services was error. No separate error is shown.
DISPOSITION
Our stay of the hearing is lifted, and the petition is denied on the merits (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888 [barring subsequent challenge by appeal]; § 366.26, subd. (l)(1)); our decision is final as to this court immediately.
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Richman, J.
We concur:
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Kline, P.J.
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Haerle, J.