Rose G., In re

• Decision Date: 19 April 1976
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of ROSE LYNN G. and Angelica G., minors. LOS ANGELES COUNTY DEPARTMENT OF ADOPTION, Plaintiff and Respondent, v. MIRIAM C. et al., Objectors and Appellants. Civ. 46445.

Page 338

129 Cal.Rptr. 338

57 Cal.App.3d 406

In the Matter of ROSE LYNN G. and Angelica G., minors.

LOS ANGELES COUNTY DEPARTMENT OF ADOPTION, Plaintiff and Respondent, v. MIRIAM C. et al., Objectors and Appellants.

Civ. 46445.

Court of Appeal, Second District, Division 4, California.

April 19, 1976.

Hearing Denied July 1, 1976.

Daniel M. Luevano, Rosalyn M. Chapman, Philip L. Goar and W. Kenneth Rice, Los Angeles, for citee and appellant Miriam C.

Ron Bain, Los Angeles, under appointment by the Court of Appeal, for citee and appellant Rafael G.

John H. Larson, County Counsel, by Paul T. Hanson, Deputy County Counsel, Los Angeles, for petitioner and respondent.

JEFFERSON, Associate Justice.

Petitioner, County of Los Angeles Department of Adoptions, brought this action pursuant to Civil Code section 232.9, seeking to have minors Angelica G. and Rose Lynn G. declared free from parental custody and control. ¹ The petition, filed October 6, 1972, specifically relied upon subsections (a) and (b) of Civil Code section 232, ² and was opposed by the natural parents of the minors, Rafael G. and Miriam C. ³ After a series of hearings, ending in May, 1973, the trial court granted the petition on August 1, 1973, on the basis of Civil Code section 232, subsection (a), only. The natural parents then requested findings of fact and conclusions of law. This request was denied September 6, 1973. Judgment was entered October 30, 1973, and the natural parents have appealed. A post-trial motion was made below on the parents' behalf seeking to stay execution of the judgment until the appeal had been concluded; to reinstate parental visiting rights with the minors, pending appeal; and to obtain without cost to the parents, as indigents, a clerk's transcript and a reporter's transcript on appeal. The trial court denied visiting rights, but ordered that no adoption of the minors could take place until the appeal was concluded; it also denied the parents the right to free transcripts. Thereafter the parents obtained a writ of mandate from this court compelling that they be provided with the transcripts without costs to them. (Crespo v. Superior Court (1974) 41 Cal.App.3d 115, 115 Cal.Rptr. 681.)

Angelica G. was born February 1, 1969, to Miriam C. and Rafael G. The parents' life together constituted a stormy relationship punctuated with outbursts of physical violence. Angelica C. had two older brothers, Rafael Jr. and Raymond. Miriam C. was receiving financial assistance from the Department of Social Services of Los Angeles County (hereinafter, DPSS) for the three children, but she had demonstrated an inability properly to manage the funds so given to such an extent that she had been placed on 'mismanagement' status, which allowed the Department to make direct payment to certain vendors (such as landlords) in an effort to ensure an adequate environment for the children. Despite this effort, social work visits to the home of Miriam C. revealed that the children were unclothed (during the winter), poorly fed and cared for, and left unsupervised on occasion. In February, 1970, when Angelica G. was about a year old, she and her brothers were removed from Miriam C.'s custody due to lack of parental supervision and to parental neglect, were declared dependent children of the juvenile court pursuant to Welfare and Institutions Code section 600, and were ordered suitably placed in foster care.

While these children were so placed, Miriam C., again pregnant by Rafael G., gave birth to another daughter, Rose Lynn on September 5, 1970. Miriam continued to receive financial assistance from the DPSS. In November, 1970, DPSS worker Arlene Shayer became aware that Miriam C. and Rafael G., with their daughter, Rose Lynn G., were living temporarily in an automobile parked near one of the DPSS offices. The police were called, and removed Rose Lynn G. from the custody of her parents; she, too, was declared a dependent child of the juvenile court, and ordered suitably placed when she was approximately two months old. At the time of hearing in this matter, all of the children remained in foster care, and had had their dependency status renewed on an annual basis.

Prior to the placement of Rose Lynn G., social worker Shayer and Miriam C. were on amicable terms, but their relationship deteriorated thereafter. Miriam C. demanded the return of her children; Shayer responded that Miriam C. must make an effort to organize her own life better, so that the children could be returned. Miriam C. no longer received financial assistance as a mother with dependent children, but did receive approximately $115 per month in the form of General Relief. The monthly grant included a very small sum for transportation. The older children, the boys, had been placed in San Gabriel; Angelica was placed in Norwalk, and Rose Lynn G. in Carson. Miriam C. lived in downtown Los Angeles; she did not drive. Her only dependable source of transportation to the various homes in which her children were placed was by bus. She did request, and receive, at least once, special funds for transportation. But in 1971, no more funds were available to the DPSS for this purpose. It was testified to at the hearing that the children were not placed nearer to the downtown area because foster homes in the area were few in number.

Miriam C. was referred to the Department of Human Resources, the state employment agency, but did not attempt to find work through this source. She explained to social worker Shayer that she was too lazy to ride a bus to work. Employment had apparently been suggested, at least in part, as a means for obtaining additional funds for Miriam's C.'s transportation needs.

During the early part of Angelica's placement, Miriam C. called Angelica's foster mother on one occasion to find out how Angelica was. Other than that, Miriam C. never, prior to the filing of the petition, visited Angelica, nor did she telephone again, write, or send gifts. Miriam C. did visit Rose Lynn once in the summer of 1971, shortly before the child was a year old, but was upset because Rose Lynn did not recognize her. Social worker Shayer discussed this development with Miriam C., pointing out that the only solution was regular visits with Rose Lynn. Miriam C. did not visit Rose Lynn again, prior to the filing of the petition.

During the period between 1970 and 1972, while the children were in placement, Miriam C. moved frequently, staying in the downtown area. One effort was made by her to find housing suitable for her and the children, an effort assisted by a community worker under DPSS supervision. Often Miriam C.'s monthly general relief checks were held at her DPSS area office, because her whereabouts were unknown. For a time she used an alias because she was trying to avoid contact with Rafael G. No home visits were made by DPSS workers Shayer and Dinnerstein, who were responsible for her case.

Miriam C. would, however, visit the area office, and it was stipulated at trial that she demanded the return of her children once every six months. She also demanded that they be placed together and that they be placed closer to the downtown area. Many of her demands concerning the children were made while she was so emotional, and were framed in such abusive terms, that her DPSS workers, particularly Shayer, found it impossible to have a meaningful discussion of the issues. The DPSS knew that Miriam C. had a history of mental difficulty, having been institutionalized for that reason in New York when she was thirteen years of age. While the testimony is not completely clear on this point, it was apparently made known to Miriam C. that counseling services were available through DPSS, but no specific referral for such services was ever made.

During the period from 1970 to 1972, Rafael G. spent most of his time in the county jail on various charges. He would obtain his freedom only to be incarcerated again. At one point, a condition of his probation was that he not associate with Miriam C.; Miriam C. did avoid Rafael G. At no time did the citee-father attempt to visit the children. At the time of the hearings in this matter, Rafael G. was again in custody, and brought to the hearings from jail.

The section 232 petition was filed with respect to the two younger children only. Miriam C. reestablished contact with her sons, who were moved from San Gabriel to Highland Park. She was able to maintain a working relationship with the boys' foster mother, Lupe Handy, and was seeing the boys regularly at the time of these hearings.

As of the time of this appeal, Angelica G. and Rose Lynn G., now respectively seven and five years of age, are living together in a prospective adoptive home in Long Beach. They have had no meaningful contact during their childhood to date with their natural parents, although sustained and capable of legal efforts to secure their return to their natural parents have been made since October, 1972.

The natural parents first contend on this appeal that reversal of the trial court's judgment is required because the trial court refused, as requested by the parents, to make findings of fact and conclusions of law.

Code of Civil Procedure section 632 requires the making of findings of fact and conclusions of law after 'the trial of a question of fact' if so requested by any party. The traditional view has been that section 632 is inapplicable to so-called 'special proceedings' (Code Civ.Proc. § 23) such as the one that concerns us herein. The trial court, relying on Adoption of Thevenin (1961) 189 Cal.App.2d 245, 251, 11 Cal.Rptr. 219; In re Helen, J. (1973) 31 Cal.App.3d 238, 244, 107 Cal.Rptr. 106; and 4 Witkin, California Procedure (2nd ed. 1971), 'Trial,' pp. 3114--3115, adopted this view and refused to make the requested findings. At the time this ruling was made, it was certainly declarative of the existing law. The only determination required of the court was that the...