Jasmon O., In re
| Decision Date | 02 September 1994 |
| Docket Number | No. S030556,S030556 |
| Citation | 878 P.2d 1297,33 Cal.Rptr.2d 85,8 Cal.4th 398 |
| Court | California Supreme Court |
| Parties | , 878 P.2d 1297 In re JASMON O., a person coming under the juvenile court law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. GAVIN O., Defendant and Appellant. |
Meyer I. Goldstein, Laguna Hills, under appointment by the Court of Appeal, for defendant and appellant.
Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, James H. Wellman, E. Jane Via and Gary C. Seiser, Deputy County Counsel, and Lee W. Selvig, San Diego, for plaintiff and respondent.
Jennings, Engstrand & Henrikson, Debra K. Maurer and Dearing D. English, San Diego, as amici curiae on behalf of plaintiff and respondent and minor.
Robert Wayne Gehring, Fallbrook, under appointment by the Court of Appeal, for minor.
Jasmon O. is now seven and a half years old. She has resided with her foster parents, who wish to adopt her, since she was an infant of six months. Her natural father asserts that it is in Jasmon's best interests not to terminate his parental rights but to transfer Jasmon's custody to him.
A court hearing an action to terminate parental rights under former Civil Code section 232 1 must consider, when a child has been in an out-of-home placement supervised by the juvenile court for a year, whether "return of the child to the child's parent or parents would be detrimental to the child" and whether "the parent or parents have failed during that period, and are likely to fail in the future, to maintain an adequate parental relationship with the child." (Id., subd. (7).) We conclude that there was sufficient evidence in this case to support the trial court's conclusion that detriment to the child and parental inadequacy warranted termination of the father's parental rights. We also conclude that the Court of Appeal erred in determining that the appeal from the termination judgment was moot. Finally, we conclude that the Court of Appeal erred in holding that a court hearing a petition under Welfare and Institutions Code section 388 2 may not find that the child's best interests require the setting aside of an earlier juvenile court order on the basis of evidence that the child will suffer long-term, serious emotional damage if the bond with foster parents is severed. Accordingly, the judgment of the Court of Appeal is reversed.
Jasmon O. was born on December 14, 1986. Six months later, on June 18, 1987, her mother relinquished her to the Child Protective Services of San Diego County, stating that she was unable to care for the infant. It is uncontested that Jasmon's father was then also unable to care for the child, as he was living in an "independent living center" for mentally disturbed persons and was also suffering from drug dependency. Jasmon was declared a dependent child on July 1, 1987, and placed in foster care in the home of the A.'s on July 7, 1987. Despite a conflict of interest on the part of the San Diego County Department of Social Services (Department) in placing the child in this home, the home proved to be a good one, and the child has resided there throughout these proceedings.
During dependency proceedings, the mother failed to comply with the reunification plan. Her parental rights have been terminated and she has not appealed. The father, however, after a period between a year and a year and a half after Jasmon was placed with the A.'s, transformed himself. He overcame his drug dependency, underwent psychological counseling, secured employment, established a home and maintained regular visitation with Jasmon.
A permanency planning hearing began on February 17, 1989, and continued on various dates until May 12, 1989. The juvenile court referee heard evidence that despite his general recovery, the father had failed to establish a close relationship with his daughter, and that Jasmon experienced separation anxiety as visitation with her father increased. The referee heard evidence that the father failed to or was unable to empathize with his daughter's distress.
The father presented evidence that Jasmon's mother's social worker, also an employee of the Department, was instrumental in securing the placement of Jasmon with the social worker's sister, who was the foster mother. The Department did not inform the father or the court of this fact. The referee was sharply critical of the Department for permitting this potential conflict of interest, but found it had not ultimately affected the attempted reunification of Jasmon with her father.
The referee found it would be detrimental to Jasmon to return her to her father's custody. However, it did not select a permanent plan and did not refer the minor for adoption, but ordered the Department to make recommendations regarding guardianship or long-term foster care.
The matter came on for consideration of the Department's report regarding guardianship or long-term foster care, and the father petitioned pursuant to section 388 for modification or to set aside the previous order finding it would be detrimental to transfer Jasmon to his care. On November 11, 1989, the court denied the petition under section 388 for lack of sufficient new evidence. A "further" contested hearing to select a permanent plan came on for trial, but the father made a motion for mistrial on the ground that he was entitled to a new permanency planning hearing on the merits, including relitigation of the issue of detriment, and a mistrial was ordered December 1, 1989.
A retrial of the entire permanency planning hearing began January 22, 1990, and concluded March 14, 1990. A second referee heard evidence that Jasmon suffered separation anxiety as visitation with her father increased, and that the father lacked empathy for her distress. There was testimony that Jasmon was mentally healthy but that a transfer of custody from the foster parents to her father would probably be very disturbing to her. There was again evidence that the father had failed to form a substantial bond with Jasmon. The second referee also criticized the Department for its conflict of interest in placing Jasmon with the A.'s, but, again, found the conflict had not actually affected the reunification efforts in this case. Expressing "considerable hesitancy," the referee found that the child should be returned to her father, finding no substantial risk of detriment to her physical or emotional well being "beyond the immediate short term." The order was stayed pending a transition schedule ordered April 19, 1990. The psychologist supervising the transition had authority to halt the transition plan upon notice to the parties.
The psychologist supervising the transition plan halted the transition because of the child's mental distress in September 1990. After further difficulties with visitation and an allegation of sexual molestation levied against the father, the Department petitioned on March 18, 1991, to set aside or modify the March 14, 1990, order pursuant to section 388. The Department also moved that reunification services be terminated and that the court order a new permanent plan-adoption.
At the hearing on the petition pursuant to section 388, a third referee heard lengthy testimony regarding Jasmon's current psychological status and the unfortunate progress of the transition plan. The evidence was that despite increasing visitation with the father during the transition plan, including extended weekend and overnight visits, she had still formed no significant bond with him, and that the increased visitation had caused her great anxiety. During the transition period, she developed a serious mental illness, consisting of a deep separation anxiety that was not age-appropriate or merely situational, and a fixed and settled depression with long-term implications for her mental health. There was evidence that the father had failed to comply with the specifics of the transition plan, in that he told Jasmon she was coming to live with him permanently before her therapist had prepared her for this information. He also failed to cooperate with the child's therapist in participating in therapy with him. There was also evidence that the father did not notice or denied the obvious symptoms of mental distress exhibited by the child during the transition period.
On May 15, 1991, the referee concluded that the Department had carried its burden of demonstrating that the previous order should be set aside because new evidence established that it was not in the best interests of the child to be placed with her father. The referee made no finding with respect to the allegations of sexual molestation. The referee also determined that placement with the father would be detrimental to the child, and ordered the Department to file an action under former Civil Code section 232 for termination of parental rights. The father filed a notice of appeal from this order.
On September 9, 1991, the superior court commenced a hearing under former Civil Code section 232, with testimony from a county probation officer, one of the Department's social workers, and three psychologists, as well as the father. The court made a de novo determination on October 1, 1991, that although reasonable reunification services had been offered, it would be detrimental to the child to return her to her father, that the father had failed or was likely to fail to maintain an adequate parental relationship, and that the child should be freed from his custody and control for adoption. The father separately appealed from this order.
The Court of Appeal reversed the order of the juvenile court referee granting the Department's petition pursuant to section 388 to set aside the second permanency planning order. It declared that the petition pursuant to section 388 contained insufficient factual allegations to warrant a...
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