Poverty Alone is Not Grounds to Terminate Parental Rights

FAMILY LAWIn re P.C., No. G039898
In a family law matter, juvenile court order terminating defendant mother's parental rights to her daughter and son is reversed and remanded where poverty alone is not a sufficient ground to deprive a mother of parental rights to her children. 

 Filed 7/23/08
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re P.C. et al., Persons Coming Under the
Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES
AGENCY,
Plaintiff and Respondent,
v.
M.D.,
Defendant and Appellant.
G039898
(Super. Ct. Nos. DP011790 &
DP011791)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Dennis
Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and
remanded with directions.
Ellen L. Bacon, under appointment by the Court of Appeal, for Defendant
and Appellant.
2
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
INTRODUCTION
M.D. (mother) appeals the juvenile court’s order terminating her parental
rights to her daughter P.C. and her son Estevan C., now ages eight and five, respectively.
This case presents us with this question: Is poverty alone – even when it results in
homelessness or less than ideal housing arrangements – a sufficient ground to deprive a
mother of parental rights to her children? We agree with the analysis of the recent case,
In re G.S.R. (2008) 159 Cal.App.4th 1202, and hold it is not. We therefore reverse.
Although the juvenile court properly exercised jurisdiction over these
children, by the time of the permanency hearing, as the Orange County Social Services
Agency (SSA) admitted, the only reason the children could not be returned to mother’s
custody and care, at least on a temporary basis, was her lack of stable, suitable housing.
Mother had completed her case plan. Any detriment to returning the children to mother’s
custody and care was solely due to her lack of housing, which, in turn, was due in large
part to her lack of funds. Mother worked steadily, but was unable to find affordable
housing in Orange County. During the reunification period, SSA failed to provide
reasonable assistance to mother to obtain safe, affordable housing. We remand the matter
with directions to the juvenile court to order SSA to provide further reunification services
to mother, including the provision of assistance in obtaining low-income housing.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On May 27, 2005, SSA filed a juvenile dependency petition concerning
P.C. and Estevan, then five and two years old, respectively. (P.C. and Estevan will be
3
referred to collectively as the children.) The petition alleged mother had hit Estevan with
her hand on May 20, and had physically abused P.C. in the past. The petition also
alleged Alejandro C., the children’s father, had committed acts of domestic violence
against mother in the children’s presence, causing the children to suffer emotional
damage. Alejandro (not a party to this appeal) was also alleged to have physically abused
P.C. on several unspecified occasions. Mother was alleged to have left the children with
a caretaker without means of support, without providing a medical consent, and without
providing the caretaker with her whereabouts or the time of her return. Before the
petition was filed, mother had disclosed to SSA that she had been homeless for about
three weeks. The children were placed in a foster home.
After a contested jurisdiction and disposition hearing, the juvenile court
sustained the allegations of physical abuse, domestic violence, and failure to provide
necessary information to the children’s caretaker, and found it had jurisdiction over the
children pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious
physical harm) and (b) (failure to protect). (All further statutory references are to the
Welfare and Institutions Code.) An allegation in the petition that mother was homeless
and unable to provide a stable residence for the children was dismissed by the juvenile
court. Although the court expressed concerns about mother’s living arrangements, it
acknowledged that the lack of stability in a place to live “would not be such . . . in and of
itself to warrant the court’s assumption of jurisdiction.” The children were declared
dependents of the juvenile court, and reunification services were ordered.
Mother’s visitation was regular and appropriate. Mother had some trouble
complying with her case plan because she was working full-time and her work schedule
conflicted with her parenting class and counseling schedules. P.C. missed mother and
stated she “wants to live with her.” SSA reported that P.C. “becomes sad when she talks
about [mother].” Mother was terminated from a parenting education program and
individual counseling because she missed classes and appointments. After a contested
4
hearing under section 366.21, subdivision (e), the juvenile court ordered reunification
services to continue.
Mother’s visitation with the children was changed from monitored to
unmonitored, and her visits remained consistent and appropriate. Overnight visitation
could not begin until everyone in the home in which mother was living was fingerprinted.
P.C. began counseling to deal with her separation from mother. Mother received new
referrals for parenting classes and counseling. She completed her parenting classes, but
missed counseling sessions. In a status review report dated July 17, 2006, SSA
recommended that reunification services be continued.
In a status review report addendum dated August 7, 2006, however, SSA
recommended reunification services be terminated. The social worker opined mother
was unable to complete the case plan due to poor follow-through. The juvenile court
again ordered reunification services to continue.
Mother maintained contact with SSA, and completed individual counseling.
Mother moved in with her maternal aunt and uncle in Buena Park. In January 2007, SSA
made an unannounced visit to the uncle’s home; he stated he did not want mother living
there any longer. SSA referred mother to the Pennysaver to find adequate housing. A
family unification referral was completed, but not given to mother to sign. (A family
unification referral might have put mother higher on the waiting list for
government-subsidized, low-income housing.)
At the 18-month review hearing in February 2007, the social worker
testified mother had completed all the services required by the case plan, and
acknowledged mother’s housing situation was the only thing preventing the children
from being returned to mother’s care. Mother’s behavior during visitation did not present
any risk of harm to the children. SSA’s policy was that all adults living in a home must
be live-scanned before a dependent child could be returned for overnight visitation or a
60-day trial visit. Mother’s living situations did not work out because a resident refused
5
to be fingerprinted, or the live scan turned up a criminal history. The social worker
testified mother “was completely willing to follow [SSA’s] requests and to try to move
into a place where people would be approved.”
The juvenile court terminated reunification services, and set the matter for a
section 366.26 hearing. The court found by clear and convincing evidence that the return
of the children to mother “would create a substantial risk of detriment to the physical and
emotional well-being of the children.” The children were returned to the Orangewood
Children’s Home after their foster care placement fell through.
Mother filed a section 388 petition requesting return of the children because
she had obtained suitable housing. However, the live scan results of mother’s roommates
revealed that one of them had a lengthy criminal history. SSA opined that although
mother was making $1,200 per month, she was “unable to keep track of her finances.”
Mother withdrew her section 388 petition based on the criminal history of her roommate.
SSA located a prospective adoptive family in Los Angeles County. The
children were placed with this family in November 2007, and mother was limited to two
hours per week of monitored visitation to permit the children to adjust to their new
placement. The children’s attachment to their prospective adoptive parent developed
appropriately. SSA reported that P.C. understood the meaning of adoption and “appeared
happy when told that the prospective adoptive parent wanted to adopt her and that she
would not have to move again.”
A contested section 366.26 hearing began on December 11, 2007. The
social worker testified mother completed her case plan. The sole basis for SSA’s
recommendation that the children be adopted was mother’s inability to obtain suitable
housing. The social worker also testified she explained the potential adoption to P.C. by
telling her she would get a new mother; the social worker did not tell P.C. she would not
continue to have a relationship with mother.
6
Mother testified P.C. would typically cry when their visits ended, and tell
mother she did not want to leave. Estevan would run to mother at the start of the visits.
The children called mother “mom” or “mommy.” After the children were placed with a
prospective adoptive family, P.C. told mother she had already been adopted, but still
referred to mother as “mom.”
The juvenile court found the children to be adoptable, and found the section
366.26, former subdivision (c)(1)(A) exception did not apply.1 The juvenile court then
terminated mother’s parental rights to P.C. and Estevan. Mother timely appealed.
DISCUSSION
This appeal presents a single issue: May parental rights be terminated
when the only current detriment to returning the children to mother’s care and custody is
her inability to obtain housing acceptable to SSA? The recent case of In re G.S.R., supra,
159 Cal.App.4th 1202 is on point, and we agree with its analysis. In that case, two young
boys were detained after their mother was arrested for having sex with a minor. (Id. at
p. 1205.) The boys’ father, Gerardo R., did not have custody, and could not be
immediately located. (Id. at pp. 1205-1206.) The dependency petition was dismissed,
with the mother agreeing to informal supervision under a plan of family reunification.
(Id. at p. 1206.) Six months later, however, a second dependency petition was filed,
alleging the mother had placed the boys at a substantial risk of harm by engaging in an
inappropriate sexual relationship with a minor, involving herself in a series of
relationships with men who committed domestic violence against her, and failing to
comply with the earlier family reunification plan. (Ibid.) Gerardo appeared at the
detention hearing and expressed interest in having the boys live with him; he did not,
1 Effective January, 1, 2008, section 366.26 was amended. (Stats. 2007, ch. 583,
§ 28.5.) The amendment redesignated section 366.26, former subdivision (c)(1)(A) as
(c)(1)(B)(i).
7
however, have suitable housing at that time. (Ibid.) The boys were placed with the
paternal grandmother. (Ibid.)
At the joint jurisdiction/disposition hearing, the mother pleaded no contest
to two of the petition’s allegations; the remaining allegations against her were dismissed.
(In re G.S.R., supra, 159 Cal.App.4th at p. 1207.) (The mother was not a party to the
appeal, and no further mention of her is made in the opinion.) No allegations were
sustained against Gerardo; to the contrary, he was found to be nonoffending. (Ibid.)
At a status review hearing, the juvenile court found it would be detrimental
to return the boys to Gerardo’s care. (In re G.S.R., supra, 159 Cal.App.4th at p. 1207.)
Gerardo had a job, but his apartment was “an inappropriate living space for him and the
boys.” (Ibid.) Gerardo visited the boys regularly and had partially complied with the
court’s orders to participate in a sobriety program such as Alcoholics Anonymous (AA).
(Ibid.)
Gerardo was laid off from his job, but found another job. (In re G.S.R.,
supra, 159 Cal.App.4th at p. 1207.) He was still unable to afford appropriate housing.
(Ibid.) The social worker reported that Gerardo’s failure to fully comply with the court’s
orders to secure housing and regularly attend AA meetings was evidence of his lack of
interest in caring for the boys. (Id. at pp. 1207-1208.) The boys were still living with the
paternal grandmother, and doing well in her care. (Id. at p. 1207.) The juvenile court
denied Gerardo’s request to be allowed to move into the paternal grandmother’s home
and be granted custody of the boys. (Id. at p. 1208.) The court again found returning the
boys to Gerardo’s custody would be detrimental to their well-being. (Ibid.)
At the permanency planning hearing, the juvenile court found its prior
findings of detriment were equivalent to a finding that Gerardo was not fit to assume
custody of the boys. (In re G.S.R., supra, 159 Cal.App.4th at p. 1209.) The court
thereafter terminated parental rights. (Id. at p. 1210.)
8
The appellate court first held that Gerardo’s parental rights could not be
terminated without a finding, by clear and convincing evidence, of his unfitness as a
parent. (In re G.S.R., supra, 159 Cal.App.4th at p. 1210.) “The record strongly suggests
the only reason Gerardo did not obtain custody of the boys was his inability to obtain
suitable housing for financial reasons. But poverty alone, even abject poverty resulting in
homelessness, is not a valid basis for assertion of juvenile court jurisdiction. As the
Legislature expressly stated in section 300, subdivision (b), ‘no child shall be found to be
a person described by this subdivision solely due to the lack of an emergency shelter for
the family. . . .’ Put differently, indigency, by itself, does not make one an unfit parent
and ‘judges [and] social workers . . . have an obligation to guard against the influence of
class and life style biases.’ [Citation.] DCFS [Department of Children and Family
Services] abandoned its guard here. Time and again, the social worker pointed to
Gerardo’s inability to afford housing to support her view he was not interested in
obtaining custody of or caring for his sons. This unwarranted logical leap had potentially
devastating implications. Instead of crafting a plan to help Gerardo obtain affordable
housing for his family, DCFS recommended termination of services and severance of the
parental relationship. The juvenile court adopted those recommendations, without
providing Gerardo notice or a meaningful opportunity to address the issue of his fitness to
parent. The court’s failure to provide these safeguards also prejudiced the boys, who are
deprived of an opportunity to develop a relationship with their biological father.” (Id. at
pp. 1212-1213, fns. omitted.)
The appellate court also held that the juvenile court’s findings of detriment
were not supported by the evidence. “As for the lack of housing, DCFS may not
bootstrap the fact that Gerardo was too poor to afford housing, which would not have
served as a legitimate ground for removing the boys in the first place, to support findings
of detriment, all of which flow directly from the circumstances of Gerardo’s poverty and
his concomitant willingness to leave his sons in his family’s care while he stayed close,
9
maintained familial ties and worked to raise rent money. This is particularly so when
DCFS might have assisted Gerardo to obtain affordable housing, but made no effort to do
so.” (In re G.S.R., supra, 159 Cal.App.4th at p. 1213.)
The appellate court concluded: “Gerardo has consistently demonstrated his
dedication to his sons. Although the juvenile court found it would be detrimental for the
boys to be placed in his care because he had not attended AA meetings as promised, there
was never any showing his failure to do so posed any risk to his sons. While DCFS may
desire it from an abundance of caution, participation in AA or another rehabilitation
program should not be a prerequisite for a parent who has shown no problem maintaining
sobriety. As for the finding of detriment based on Gerardo’s lack of housing, that finding
arises directly out of the fact of his poverty. The record is devoid of evidence that, but
for his inability to obtain housing, Gerardo is incapable of adequately parenting his sons.
This would seem to indicate he is a fit parent. At a minimum, it indicates an entitlement
to an opportunity to defend himself against a factually specific charge that he is not. It is
not up to Gerardo to prove he is a fit parent. Rather, it is up to DCFS to satisfy its
constitutional burden to establish, by clear and convincing evidence, that he is not.
[Citations.]” (In re G.S.R., supra, 159 Cal.App.4th at pp. 1214-1215, fn. omitted.)
Our case differs from In re G.S.R. in one important respect – mother, unlike
Gerardo, was an offending parent. Mother’s acts and omissions brought the children into
the juvenile dependency system in the first place. Allegations of abuse and substantial
risk of harm to the children by mother were sustained by the juvenile court. But the
record is clear, and SSA correctly concedes, mother has corrected all the problems that
led to the juvenile court’s assertion of jurisdiction over the children. The man who
committed domestic violence against mother is out of the picture. Mother completed all
the parenting classes and counseling required by her case plan.
SSA agrees that the only reason it did not return the children to mother’s
custody and care, at least on a temporary basis, was her lack of appropriate housing.
10
Mother’s situation again differs from Gerardo’s in that Gerardo was simply unable to find
affordable housing. Mother’s situation is more complicated. Mother found a series of
living accommodations, but the children could not be released to her at those locations
because the other adult residents failed or refused to participate in the required live scan
tests, or were determined to have a criminal record. SSA’s reports showed that every
time this occurred, mother promptly sought alternate housing.
The social worker’s testimony at the section 366.26 hearing establishes
SSA failed to do its part in helping mother find housing SSA could determine was
suitable. The social worker did not timely obtain mother’s signature on the family
unification referral that might have moved mother higher on the low-income housing list,
simply recommended mother look in the Pennysaver for housing, and admittedly was
unaware of other resources to which she could refer mother for low-income housing. In
this regard, the juvenile court’s finding that SSA had provided or offered all reasonable
services was not supported by substantial evidence.
Also in contrast to In re G.S.R., mother’s living arrangements were not the
sole basis for the juvenile court’s original exercise of jurisdiction. The juvenile court
sustained the allegations in the petition which detailed mother’s physical abuse of the
children and the domestic violence to which the children were exposed. But mother
resolved these problems, as SSA correctly acknowledges.
SSA next argues that “[n]o further detriment finding was necessary” to
terminate mother’s parental rights because when the court entered its order following the
joint jurisdiction/disposition hearing, it found vesting custody of the children with mother
would be detrimental. If that were true, however, then no parent would ever have the
incentive to try to reunify with his or her child. In the single case SSA cites in support of
this argument, In re Amanda D. (1997) 55 Cal.App.4th 813, 816-817, 818-819, the father
was incarcerated, and would remain so for some time, and had unresolved problems with
drugs, alcohol, and violence. He challenged the termination of his parental rights because
11
the juvenile court had not made the necessary finding of his unfitness as a parent. (Id. at
p. 818.) The appellate court concluded the detriment findings made at each of the status
review hearings throughout the case sufficiently established the father’s unfitness, thus
meeting the requirements of due process. (Id. at p. 819.)
In this case, the juvenile court made a finding at each substantive hearing
that returning the children to mother’s custody would be a detriment to them. But again
we must ask, what was the basis of that finding? Initially, it was based on mother
physically abusing the children and exposing them to incidents of domestic violence. If
mother had not completed her case plan and corrected her behavior, we would agree that
the court’s continued findings of detriment were tantamount to a finding of parental
unfitness. But mother resolved those problems, and the later findings of detriment were
based solely on mother’s inability to find suitable housing.
Our conclusions herein should not be construed as a criticism of SSA’s
policy that before a dependent child can be returned to his or her parents, any adult who
will be sharing living quarters with the child must be vetted. The safety and well-being
of the children in the dependency system is our primary concern, as it is the primary
concern of SSA.
There is not a perfect “fix” for the problem at this point. The children have
already been placed in a prospective adoptive home, and we are loathe to upset the rare
instance of stability in their lives. Nonetheless, we cannot permit mother’s parental rights
to be terminated for the reasons we have explained. The appellate court’s opinion in
In re G.S.R. provides an appropriate framework for what needs to happen next in this
case. The court in In re G.S.R. fashioned this sensible disposition: “Under these
circumstances, we determine Gerardo’s due process rights were denied by DCFS’s failure
to demonstrate sufficient detriment and the juvenile court’s failure to find a legitimate
basis for deeming him unfit. We recognize and regret the procedural and emotional
difficulty of undoing this fundamental error at this stage of the process, especially since
12
both boys are doing well in [the paternal grandmother]’s care and she wishes to adopt
them. Still, we cannot allow the process to continue on the path toward termination of
parental rights without further review in the trial court. We cannot undo the process but
we can pause and restart the proceedings. Accordingly, we will reverse and remand with
instructions that the trial court revisit the issue of whether, based on facts and
circumstances as they exist at this time, there exist legally sufficient grounds to find it
would be detrimental to return the boys to Gerardo, recognizing poverty is not such a
ground. If not, . . . the juvenile court shall restart the clock on reunification services and
related efforts, including housing assistance, to afford Gerardo a legitimate opportunity to
build a relationship with and become a full-time parent to his sons. Only in the event
those renewed efforts fail may the juvenile court proceed with termination of parental
rights. If the trial court determines it would not be detrimental to return the boys to
Gerardo’s care, it shall take the necessary steps to assist the boys’ return to Gerardo’s
custody.” (In re G.S.R., supra, 159 Cal.App.4th at pp. 1215-1216.)
DISPOSITION
The order terminating mother’s parental rights is reversed. The matter is
remanded to the juvenile court with directions to conduct a hearing to address whether
legally sufficient grounds independent of poverty currently exist such that it would be
detrimental to place the children in mother’s care. If the juvenile court determines it
would not be detrimental to do so, it shall take the necessary steps to return the children
to mother’s custody. If the court determines legally sufficient grounds for jurisdiction
exist independent of poverty, it shall renew reunification services and related efforts,
including the provision of assistance in obtaining low-income housing, to reunify mother
13
and the children. Only in the event those renewed efforts fail may the juvenile court
proceed to terminate mother’s parental rights.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.