CONSTANCE K., Petitioner, v. The SUPERIOR COURT of Los Angeles County,
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
This case is the general case that the department relies on when making their case against continuation of reunification services. Parent’s counsel tends to rely on In re David B. [ (1979) 91 Cal.App.3d 184 and the Agency; Constance K. v. Superior Ct., 61 Cal. App. 4th 689, 71 Cal. Rptr. 2d 780 (1998). It is important to understand the language of both cases.
The case in chief in Constance K is that compliance with reunification plan alone cannot guarantee return to home of parent. The court must also consider other factors such as progress in programs and 730 evaluations in deciding whether HOP is in the minor’s best interest. It is important to note when the department pleads its case using Constance K there remains a great deal of open language and vagueness to remember to find case law that answers the vague arguments raised in Constance K.
When analyzing this case, all parties must bear in mind the overriding goal of dependency court and its laws.
“The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time”.
This is the foundation for the department’s decision to not continue providing reunification services to the mother. However, the law also stipulates that the parent’s rights and “interest in the care, custody and companionship of [their] child is a liberty interest that may not be interfered with in the absence of a compelling state interest”; the best interest of the minor.
The mother had reached the *generally penultimate deadline in reunification, the 18 month, 366.22 subdivision (a) hearing. Barring certain exceptions, the court at this date must make the decision to either return the minor children to the parent or terminate services and set a date for the selection and implementation hearing (120 days out from the date of termination of services).
At this date the court will examine several key markers. First the court will consider whether the mother had made substantial progress in her case plan. The court will review all of the evidence and reports submitted via counsel and the department to assess the degree of compliance with the case plan. More importantly the court will review the evidence and .22 report to determine whether the parent made meaningful progress in that they learned and applied the lessons taught in the therapy and parenting classes. Participation alone is not enough if the parent is unable to demonstrate that they learned and applied the lessons provided in these services.
The other key factor is that completion of the case plan alone will not be enough to justify return and overcome the legal standard of best interest of the child. Additionally, the court will be looking at the title 20s and reports that demonstrate that the parent has complied with the service plan, but for some reason has not convinced a psychologist or social worker that it would be safe to return the child to the parent. Simply put it is not the number of services completed, but whether the counseling, therapy or parenting classes help the parent. The parent will need to proffer additional statements and reports from providers opining that the parent has benefitted and implemented the lessons they are taught into their parenting style.
Additionally, the court may consider psychological evaluations which may indicate return to a parent would be detrimental, any difficulties a minor has in dealing with other persons in their family, whether the parent has limited awareness of the emotional and physical needs of their minor children, how long the minor has lived with the parent before the time of removal, how the parent had comported himself or herself before a § 300 petition was initiated. These factors would be considered weighed under the analysis test of the totality of the circumstances rather than a bright-line rule.
To better define this, the court notes that the evidence proffered must be sufficient to support the court's finding. The evidence must be “reasonable in nature, credible, and of solid value; it must actually be ‘substantial ’ proof of the essentials which the law requires in a particular case”. Isolated incidents and random “bad days” cannot serve as the basis for decision to terminate.
The appellate court justifies this reliance on outside reports:
“[w]ithout the testimony of psychologists, in many juvenile dependency and child custody cases superior courts and juvenile courts would have little or no evidence, and would be reduced to arbitrary decisions based upon the emotional response of the court”.
These are sensitive cases, fraught with emotional overtones, because they invariably deal with an evaluation of the personality, character and attitudes of the parent. An unpublished case but very important none the less is in re Zoey T is an example where the providers working with the father frequently had personal disagreements but the father served as exemplary parental role model. Unfortunately, due to the the personality, character and attitudes the court based these reports of such as grounds that the parent did not benefit from the services in the case plan.
Finally at the .22 hearing, the trial judge may also consider whether changing custody back to HOP will be detrimental to the minor as it may severe a positive beneficial relationship with their current foster family will cause serious, long-term emotional harm.
In this case, the mother had never had custody of all her children at one time. She always had some of her children in the custody of the department at any given time. Additionally, the psychologist reviewing her case opined that despite her efforts “the mother would be unable to cope with the return of the three minors at present”. The professionals agreed that the child would suffer severe psychological harm if “returned” to the home of the parent. These professionals included the psychologist and the department's social worker, who both concluded that the mother should not now have custody of the minors. The therapist recommended termination of parental rights. The court notes that each of these evaluations reflected non-conclusory and professional opinion based on the evidence in the record so far. They opined that due to the mother’s inability to parent all the children at once was indicative of a substantial risk of detriment. Because of these opinions, the court heavily relied on their extensive expertise in these matters and based their decision on these report. In response to the argument about speculation, the court summarizes it:
“this evidence… was not too speculative, because it was ‘expert opinion testimony, based on psychological testing and clinical evaluation”.
Additionally, the department noted that the mother failed to benefit from her therapy services as she continued to maintain contact with the fathers whom have perpetuated domestic violence. Despite services, she has yet to keep the father away nor be able to control his behaviour and had the minor children in the presence of the father multiple times. Therapy sessions offered by the department serve to educate the mother about the seriousness of domestic violence and cycle of abuse. Based on this education, the therapist and the department expect to see the mother sever her ties with domestic violence perpetrators unless there is a countervailing court order.
In considering the mother’s quality of the visits, the mother was often unable to keep the minors for even a full weekend. Because she could not control the minors during the weekend visits, the mother would call the foster mother for help. Again the title 20s and the contact narratives reflect the mother’s inability to parent her children without substantial assistance from third parties. Additionally, the mother had been unable to care for her children properly for any lengthy amount of time before the § 300 petition.
Finally, the trial court took into consideration the damage the minor[s] may suffer if their bond with their foster placement were severed. The court noted HOP would terminate the loving and stable relationship the minors had developed over a two year period in the foster home. Compounded with the fact that the mother had yet to provide a stable placement for the minors historically and currently, the court opined that the minors were entitled to stability, something that had developed in the foster home and the mother had failed to develop within the time frame offered by the juvenile court.
When considering how the trial court weighs all of these factors and makes its judgement, the appellate court notes that the trial court’s discretionary power is inherently granted by the judge and challenging that wide discretion will generally not prevail unless there is a showing that the court abused its discretion in an arbitrary, capricious or absurd manner that will lead to prejudicial error. The appellate court found that there was no risk of prejudicial error and denied the mother’s writ of mandate.
61 Cal.App.4th 689
Court of Appeal, Second District, Division 5, California.
CONSTANCE K., Petitioner,
The SUPERIOR COURT of Los Angeles County, Respondent;
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Real Party in Interest.
Feb. 18, 1998.Review Denied April 29, 1998.
Mother petitioned for writ of mandate after superior court, No. J975092, Emily A. Stevens, J., decided not to return children to mother. The Court of Appeal, Turner, P.J., held that although there was evidence there would be no risk of substantial detriment if children were returned to mother, countervailing revelations in reports constituted substantial evidence of risk of requisite detriment if children were returned to mother and justified decision to not return children to mother.
Juvenile Dependency and