In re Noreen G.
| Citation | 181 Cal.App.4th 1359 |
| Decision Date | 09 February 2010 |
| Docket Number | No. A122651.,A122651. |
| Court | California Court of Appeals |
| Parties | In re NOREEN G. et. al., Minors. RONALD R. et al., Petitioners and Appellants, v. JAMIE R. et al., Objectors and Appellants. |
Fishel and Fishel and James J. Fishel for Petitioners and Appellants.
Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant Jamie R.
Mary R. Williams, under appointment by the Court of Appeal, for Objector and Appellant Raymond G.
Two appeals have been taken from a judgment that granted a petition brought pursuant to Probate Code section 1516.5 (section 1516.5), to declare two minors, Emma and Noreen, free from the care, custody, and control of their biological mother and father, Raymond and Jamie, and granted the parents visitation rights.1 The parents claim in their appeal that section 1516.5 is impermissibly vague and violates due process. They also argue that the minors were denied right to counsel in the case, an investigator's report was not properly submitted, the evidence fails to support the termination of their parental rights, and the court failed to comply with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). The guardians of the minors, Juliana and Ronald, who filed the petition, have also appealed from the court's visitation order, in which they claim that the visitation rights granted to the parents were beyond the authority of the trial court and an abuse of the court's discretion.
We find that section 1516.5 does not have any constitutional infirmities, no denial of the right to counsel occurred, any deficiencies in the investigator's report were not prejudicial to the parents, and the evidence amply supports the termination of parental rights. We conclude that we must make a limited remand of the case to the trial court to comply with the inquiry provisions of the ICWA. We also conclude that the order granting visitation rights to the parents must be reversed as in excess of the trial court's authority.
The minor Emma was born in May of 2002; her sister Noreen was born in May of 2003. Jamie is the biological mother of the minors. Raymond and Jamie were married in 2002, and he is the presumed father of the minors, although his paternity of Emma has not been established. At the request of Jamie, in August of 2004 the minors began temporarily residing with petitioners Ronald and Juliana, their maternal uncle and aunt. Jamie was seeking treatment for a chronic substance abuse problem, and her relationship with Raymond was volatile, physically abusive, and intermittent.2 Raymond also has a history of drug and alcohol addiction. In September of 2004, again with the approval of Jamie, petitioners were appointed the legal guardians of the minors.3
Within a month, the guardianship became a contentious matter between Jamie and petitioners, and has remained so. In October of 2004, Jamie filed a petition to terminate the guardianship based on accusations against petitioners that were not substantiated; the petition was denied. Subsequent petitions filed by Jamie to terminate the guardianship were also denied. Jamie continued to engage in visitation with the minors, but did not follow through with drug and alcohol rehabilitation efforts.
In April of 2005, petitioners filed a motion to terminate visitation by the parents based upon an accusation made by Emma that she was sexually molested by Raymond during an overnight visit with Jamie. The accusation was not prosecuted due to Emma's young age and lack of physical evidence of abuse, but Raymond was arrested on unrelated outstanding warrants and taken to Nevada, where he was subsequently incarcerated in state prison until September of 2007. On April 25, 2005, unsupervised visitation with the minors was suspended pending an investigation. In May of 2005, Juliana obtained a restraining order that compelled Raymond to stay away from her residence and prohibited him from any contact with Emma or Noreen.4 Raymond has neither had any contact with the minors nor sought visitation with them since April of 2005.
By August of 2005, Jamie's unsupervised visitation with the minors was increased. Her drug tests were negative and she was attending domestic violence classes. In February and August of 2006, at the request of counsel for the minors the court further expanded Jamie's visitation rights to include a portion of six days a week and three overnight stays per week, or a time-share with the guardians of between 50 and 55 percent. Jamie was directed to complete a parenting class prior to filing for termination of the guardianship. The minors' counsel recommended termination of the guardianship in February of 2007.
By March of 2007, however, Emma was diagnosed with an adjustment disorder caused by the visitation arrangement that resulted in frequent transitions between the homes of the guardians and Jamie. The guardians also accused Jamie of at least one instance of alcohol and drug use—based on a report from the father of one of Jamie's older children (not involved in these proceedings)—although Jamie denied any relapse into illegal drug use, and a drug test was negative.
Jennifer Emerson, a registered child-parent therapist with the Early Childhood Mental Health Program, was appointed by the court to evaluate the minors and provide family therapy. She observed that on several occasions Jamie suffered injuries that included a black eye and serious abrasions or bruises on her arms. Emerson suspected from Jamie's evasive answers to inquiries about the source of the injuries that Jamie was being abused by her boyfriend Scott Armas. Then in August of 2007, Emma reported to Emerson that during overnight visitation the minors repeatedly witnessed acts of physical abuse committed upon Jamie by her boyfriend. Both Emma and Noreen stated that they periodically observed Jamie and Armas hitting each other, which frightened and upset them. When Emerson confronted Jamie with the issue of domestic violence in the home that had been witnessed by the minors, Jamie became "very angry" and asked Emerson to leave, although she did acknowledge to Emerson that some "incidents of violence in the home" had occurred.
Also in August of 2007, Emerson and Juliana observed bruises on Emma's lower left side that were in the shape of a belt or waistband. Emma claimed that after she hit her mother Jamie struck her "really hard."5 Jamie at first denied that Emma's injury occurred as a result of infliction of physical abuse. She subsequently acknowledged that she hit Emma "back" in anger after Emma hit her, and expressed that she was "justified in doing it."
A Child Protective Services (CPS) investigation was commenced, Jamie's petition for termination of the guardianship was denied, and unsupervised visitation was suspended pending completion of the investigation. Emerson advised CPS that unsupervised visits by Jamie with the children were no longer appropriate, and CPS agreed. Dr. Joseph Bongiovanni was assigned to conduct the CPS guardianship investigation of the welfare of the minors. He described the minors as "normal," well adjusted and "happy" in the home of the guardians. Dr. Bongiovanni, concluded in his investigative narrative that Jamie was not committing ongoing abuse, but he found a "[s]ubstantial risk" to the children in the mother's home due to the domestic violence between her and Armas. According to Dr. Bongiovanni, "no foundation" existed for CPS to file a dependency petition. He also thought the children were adequately protected by the existing guardianship and the ability of the probate court to intercede on behalf of the children.
On September 7, 2007, by stipulation the unsupervised visits with the minors by Jamie as specified in prior visitation orders were suspended in favor of supervised visitation only, twice a week for two hours per visit. Following the stipulated supervised visitation order, Jamie visited with the minors only four times. Jamie ended her relationship with Armas in September of 2007.
The present petition to terminate the objectors' parental rights was filed by the guardians on January 10, 2008. After the petition was filed, Jamie left a succession of harassing, threatening and somewhat irrational telephone messages to petitioners in April of 2008, in which she implored Juliana to abandon the proceedings. Tape recordings of these messages were played during the hearing before the trial court. On April 17, 2008, Jamie was observed by Juliana pacing outside the guardians' home. Thereafter, Juliana obtained a restraining order against Jamie.
Trial on the petition was held in June of 2008. Juliana testified that she and Ronald decided to file the petition due to the "dramatic improvement in Emma's symptoms" of anxiety after unsupervised visitation with Jamie was terminated, the lack of progress made by Jamie, and the detriment to the children from the instability caused by the continued guardianship. Juliana indicated that she and Ronald brought the petition for termination of parental rights to relieve the minors' anxiety and instability that has occurred with the long, protracted and bitterly contested guardianship. She testified that the prolonged guardianship and associated confusion "is hurting the children." According to Juliana, the objective of the petitioners is to adopt the children upon the termination of parental rights. Juliana agreed that the minors have an attachment to their mother and want to visit her, but testified that their primary need is to reach an end to the litigation and obtain a stable, permanent home through adoption.
Rose Parson, a court investigator for the Contra Costa County Superior Court, testified that in February of 2008 she was assigned by the court to investigate the guardianship and submit a...
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