Citations
- 33 Cal. App. 4th 176
Full opinion text
Opinion
WOOD (A. M.), P. J.
Bennie and Lupe R. (appellants) appeal from an order terminating their legal guardianship over Alicia O. pursuant to Welfare and Institutions Code section 366.4.
Alicia, bom on March 15, 1976, is mentally retarded and suffers from kyphoscoliosis (curvature of the spine) and cardiac defects. She is unable to speak except through a kind of sign language and has the mental age of a two-year-old child. A section 300 petition was first filed in her case in October 1976, alleging abandonment by her mother.
Appellants, Mr. and Mrs. R., operated a licensed foster family home and specialized in the care of disabled children. Mrs. R. was active in various foster care groups. Alicia, who had been in long-term foster care from the time she was nine months old, was placed with appellants in November 1991. They sought and obtained legal guardianship of Alicia by order of the juvenile court on April 29, 1992. At that point, the juvenile court’s dependency jurisdiction over Alicia was terminated.
On June 10,1992, the department of children’s services (DCS) filed a new section 300 petition in which it was alleged that appellants had physically abused three other minors in their care, Willie H., William A. and Desmond G. The petition further alleged that these acts put Alicia, then 16 years old, at risk. A detention hearing for Alicia was conducted on June 11, 1992. The court found that a prima facie case for detaining her had been made and she was removed from appellants’ custody. The court appointed Dr. John Leonard, a child psychiatrist, to examine Alicia and also ordered DCS to prepare a social study. In addition, the court ordered DCS to commence family reunification services to Alicia and appellants. The court set Alicia’s case for adjudication on July 7, 1992, along with adjudication of the petitions on Desmond G. and William A.
At the July 7 hearing, the court ordered Alicia to remain detained but gave DCS discretion to release her to appellants and ordered a reevaluation of the foster home in which she had been placed.
A report by Dr. Leonard, dated July 10, 1992, stated that Alicia had been physically examined and there was evidence of sexual abuse. Dr. Leonard concluded that she was at risk for sexual abuse and that the results of the physical examination mitigated against reunification.
DCS investigative report, prepared by Karen Hokkanen, and dated July 21, 1992, presented statements detailing the alleged physical abuse by appellants of Desmond G. and William A. and referred to the physical examination of Alicia that revealed results consistent with “vaginal trauma/ sexual abuse.” Hokkanen recommended termination of appellants’ guardianship over Alicia and permanent placement services for her. No reunification plan was specified in the report.
The adjudication hearing was held on October 8,1992. Appellants pleaded no contest to the amended petition, which alleged that they had inflicted “excessive physical punishment” on William A. and Desmond G. The minute order for that date shows that DCS was ordered to prepare a specific reunification plan for appellants and Alicia and gave DCS discretion to return her to appellants’ custody. The matter was continued for the disposition hearing to November 25, 1992.
A second DCS report, prepared by Karen Hokkanen, and dated October 23,1992, reported that Alicia was encopretic and that she “acted out” during a visit by appellants. She also reported that appellants had missed four visitations out of six. Attached to DCS report was a letter from Alicia’s social worker, Philip Kunde, that stated she was receiving “excellent care” in the foster home to which she had been removed. Dr. Leonard also prepared a report, dated October 31,1992, that contained an “addendum” to his earlier report regarding Alicia. He stated, based on an interview he conducted with appellants and the minors, including Alicia, that, while “nothing in this interview would indicate that [appellants] [are] anything but attentive guardians for Alicia. . . . Whether reunification is a viable plan for Alicia will depend on the outcome of the investigation of the [appellants’] home. Alicia’s current foster mother called to tell me that Alicia’s behavior had deteriorated following the interview. She had become agitated and unresponsive to usual forms of communications and her behaviors [sic] had become more active and inappropriate. . . . The foster mother also related that Alicia reacts with a similar form of disturbance following visits by Mrs. [R.].” Dr. Leonard stated that the interaction between appellants and the minors “was not warm" and concluded that “there is an indication that at some time all of these children have been abused.” He recommended against reunification efforts.
On October 30, 1992, DCS filed a petition for termination of appellants’ guardianship over Alicia on the grounds that she “is severely developmentally delayed[,] has severe scoliosis and is encopretic. Legal guardians have physically abused other minors in the home. It is in minor’s best interest to terminate the guardianship.”
At a hearing held on November 18, 1992, DCS took the position that, having filed a petition to terminate guardianship, there would be a recommendation of no reunification. Counsel for Mrs. R. replied, “Your Honor, neither the guardians nor the minors want termination of this guardianship. . . .You have ordered family reunification services [for] these parties. Nothing by the [DCS] has yet to be provided. Every bit of reunification has been done by [appellants]. They have gone to parenting and counseling. The [DCS] has done nothing. Today a detailed plan was due by the [DCS] outlining what the department was going to do for reunification. It is not here. They violated the court order. [Their] position now is that no reunification should be provided so they do not need to provide a report.”
The court ordered DCS to provide points and authorities stating its reasons for its recommendation of no reunification.
The dispositional hearing commenced on November 25, 1992, as to Alicia, Desmond G. and William A., and continued on December 17, 1992, February 4, 1993, February 25, 1993, February 26, 1993, and March 25, 1993.
Prior to the March 25 hearing, DCS filed a document entitled “Points and Authorities re Guardianship,” in which it argued that appellants were not entitled to reunification rights coextensive with those of biological parents. Appellants filed a counter-document in which they argued that reunification services were available to legal guardians.
A total of 15 witnesses testified at the dispositional hearing and the court also received into evidence various reports including that of Dr. Leonard and Dr. Michael Ward, a clinical psychologist. Dr. Ward’s report, dated March 23, 1993, noted that Alicia “has now been out of [appellants’] home almost as long as she was in it,” and while she had a “positive relationship to the [appellants], she also seems to have a positive relationship to most other people she interacts with.” He concluded that if all things were equal, she should be returned to appellants but went on to state: “Whether or not all other factors are equal involves consideration of what this particular child needs and what [appellants] . . . can provide her as opposed to some other foster home. . . . About all I can say is that assuming [appellants] can provide what she needs, there would not appear to be any strong reason to preclude placing her back in that home.”
Among the witnesses was Dr. Leonard, who testified that Alicia should not be reunited with appellants because of appellants’ admission that they had inappropriately disciplined the other minors and what he perceived of as their lack of significant involvement with Alicia. He also testified that following visitation with appellants, Alicia’s foster mother reported that she was more difficult to manage and less cooperative. Karen Hokkanen also testified against reunification for the reason stated in her report and because, in view of Alicia’s limited verbal skills, “[s]he would in no way be able to call or seek help if something happened." Alicia’s social worker, Philip Kunde, also testified that he would be uncomfortable with returning Alicia to appellants “with a sexually acting out boy also present” at appellants’ home because Alicia is “nonverbal and ... at some point in her life . . . she was sexually molested . . . .”
On April 5, 1993, the court made the following order: “The minor Alicia [O.] is declared a dependent of the court pursuant to section 300 subsections (A), (B), and (C) of the juvenile court file [sic]. The custody of the minor is taken from the parents and guardians [sic]. The minor is committed to the care, custody and control of the Department of Children’s Services for suitable placement as detailed in juvenile court dependency disposition minute order form. [