San Diego County Department of Social Services v. Rosemary D.

California Court of Appeal · D004529 · 1987-06-11 · Published · 193 Cal. App. 3d 694 · 238 Cal. Rptr. 426 · 1987 Cal. App. LEXIS 1928

In Re CLEOPATRA D., a Minor. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. ROSEMARY D., Objector and Appellant

Area: criminal
Panel: Howard B. Wiener (author), Edward T. Butler, Daniel J. Kremer

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:42Z · confidence high

The trial court denied the mother's motion for travel expenses to attend the termination of parental rights hearing and subsequently granted the county's petition to sever the parent-child relationship based on neglect and failure to maintain a parental relationship. The Court of Appeal affirmed the judgment, finding no abuse of discretion in denying travel costs and sufficient substantial evidence to support the termination.

Ruling reviewed	Standard	The court	The model
Denial of motion for travel expenses “We conclude the court did not abuse its discretion in denying Rosemary’s motion for transportation costs to attend trial.”	abuse of discretion	not reached	agree with court agree with court
Termination of parental rights judgment “There is substantial evidence in the record to support the judgment freeing Cleopatra from Rosemary’s custody and control.”	substantial evidence	not reached	agree with court agree with court

Authorities

relied: In re Angelia P. (1981) 28 Cal.3d 908 — Parenting is a fundamental right, but civil nature of section 232 proceedings limits rights; substantial evidence standard applies.
relied: Lassiter v. Department of Social Services (1981) 452 U.S. 18 — There is no federal constitutional right to counsel in a section 232 proceeding.
relied: In re Lynna B. (1979) 92 Cal.App.3d 682 — On review, the court determines if substantial evidence supports the trial court's findings.
relied: In re Laura F. (1983) 33 Cal.3d 826 — Past conduct is relevant on the issue of future fitness.
relied: In re Gary U. (1982) 136 Cal.App.3d 494 — A father is not denied equal protection if unable to be physically present at section 232 proceedings due to out-of-state confinement.

The appellate opinion: sound — The court correctly applied the abuse of discretion standard to the procedural denial of travel expenses and the substantial evidence standard to the termination judgment. It properly distinguished statutory rights from constitutional mandates regarding indigent parents' presence.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court, after denying the indigent mother's motion for County-paid travel expenses from Michigan to attend trial, entered judgment under Civil Code section 232, subdivisions (a)(2) and (a)(7), freeing her child Cleopatra from her custody and control. The Court of Appeal affirmed, holding there was no statutory or constitutional basis to compel payment of travel costs, that counsel was not rendered ineffective, and that substantial evidence supported the findings.

Ruling reviewed	Standard	The court	The model
Denial of the mother's motion (made before trial and renewed at the close of the County's case) for County-paid transportation expenses from Saginaw, Michigan, to attend the section 232 trial, rejected on due process and equal protection grounds. “We conclude the court did not abuse its discretion in denying Rosemary’s motion for transportation costs to attend trial.”	abuse of discretion	correct	agree with court The court correctly noted that Civil Code sections 237.5 and 237.7 confer only statutory rights to counsel and transcripts and that no statute authorizes public payment of travel costs; Lassiter confirms section 232 proceedings carry limited federal constitutional protections, and In re Gary U. disposes of the equal protection analogy to Penal Code section 2625. Counsel's failure to make any offer of proof left the court unable to assess prejudice. The due process discussion is brief and does not consider alternatives such as deposition or telephonic testimony, but no error of law is apparent on this record.
Rejection of the claim that denial of travel funds deprived the mother of effective assistance of counsel because her attorney could not communicate adequately with her by telephone or mail. “Rosemary’s counsel provided no reason Rosemary would be able to conmunicate more effectively with him in person than by telephone or mail.”	unclear	correct	agree with court The claim is derivative of the travel-expense ruling and fails for the same reason: with no offer of proof of what the mother would have said or how in-person contact would have changed counsel's presentation, prejudice is speculative. The court's additional reliance on the mother's I.Q. of 66 to infer that in-person communication would not have helped is weakly reasoned, but the lack of any showing of prejudice independently supports the result.
Judgment freeing Cleopatra from the mother's custody and control under section 232, subdivision (a)(7), on the finding (required to be made by clear and convincing evidence) that the mother failed and was likely to fail to maintain an adequate parental relationship. “There is substantial evidence in the record to support the judgment freeing Cleopatra from Rosemary’s custody and control.”	substantial evidence	correct	agree with court Consistent with In re Angelia P. and In re Lynna B., the court applied substantial evidence review to findings made under the clear and convincing standard and properly treated past conduct as relevant to future fitness under In re Laura F. The record showed essentially no contact with the child since June 1982, no progress on the October 1982 reunification plan, a guarded home situation, the child's special physical needs, and a 1985 home study rating the likelihood of successful placement as poor; this supports the finding.

Authorities

relied: In re Angelia P. (1981) 28 Cal.3d 908 — Parenting is a fundamental right to be disturbed only in extreme cases; section 232 findings made under the clear and convincing standard are reviewed on appeal for substantial evidence, and past conduct bears on future fitness.
relied: Lassiter v. Department of Social Services (1981) 452 U.S. 18 — There is no categorical federal constitutional right to appointed counsel for indigent parents in termination of parental rights proceedings.
relied: In re Lynna B. (1979) 92 Cal.App.3d 682 — Appellate review of section 232 findings is for substantial evidence viewed in the light most favorable to the judgment.
relied: In re Laura F. (1983) 33 Cal.3d 826 — Under section 232, subdivision (a)(7), a parent's past conduct is relevant to the likelihood of future failure to maintain an adequate parental relationship.
relied: In re Gary U. (1982) 136 Cal.App.3d 494 — A parent confined in an out-of-state prison and therefore outside Penal Code section 2625 is not denied equal protection by inability to be physically present at section 232 proceedings.

The appellate opinion: sound with gaps — The opinion reaches a defensible result with the right California authorities on the substantial evidence question and correctly distinguishes statutory from constitutional rights on the travel-expense issue. It is thin, however, on the due process claim—resting largely on the absence of cited authority and the lack of an offer of proof—and does not consider whether less costly alternatives (deposition or telephonic testimony) were required, while its use of the mother's low I.Q. to reject the ineffective-assistance argument is loosely reasoned.

How this analysis was made · dispute it

Opinion — Wiener

*697 Opinion

WIENER, J.

The San Diego County Department of Social Services (County) petitioned to free Cleopatra D. from the custody and control of her mother, Rosemary D. (Rosemary), alleging cruel treatment and/or neglect and failure to maintain an adequate parental relationship. (Civ. Code, § 232, subds. (a)(2) and (a)(7).) 1 Neither Rosemary nor the presumed father appeared at trial. Rosemary appeals judgment in favor of the County on grounds the court’s refusal to authorize travel expenses from Saginaw, Michigan, denied her due process, equal protection and effective assistance of counsel. She also claims the County failed to show by clear and convincing evidence that permanent severance of the parent-child relationship was the least detrimental alternative for the child. We affirm the judgment.

Discussion

Before trial Rosemary and Cleopatra’s presumed father joined in a motion requesting transportation expenses from their home in Saginaw, Michigan, to San Diego to attend the trial. Rosemary asked that the travel costs be paid by the County. The court denied the motion for lack of statutory authority and because the history of the case “indicated absolutely no effort by the parents to have any contact with the child.” Rosemary renewed her motion at the close of the County’s case. The court again denied the motion on grounds that: (1) counsel for the parents had made no pretrial offer of proof of the parents’ anticipated testimony; (2) the parents had failed to comply with the reunification plan, which constituted abandonment; and (3) counsel for the parents had sufficient time to file a writ after the motion was first denied, but failed to do so.

Rosemary’s due process and equal protection challenge raises questions concerning the nature of parental rights and the extent to which such rights are accorded constitutional protection. Although our courts acknowledge that parenting is a fundamental right to be disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood (In re Angelia P. (1981) 28 Cal.3d 908, 916 [171 Cal.Rptr. 637, 623 P.2d 198]), the civil nature of section 232 proceedings limits the rights available to parents in that context. There is no federal constitutional right to counsel in a section 232 proceeding. (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 31-32 [68 L.Ed.2d 640, 652-653, 101 S.Ct. 2153].) We have been cited to no case which suggests the court is *698 constitutionally mandated to order the County to pay Rosemary’s travel expenses here. Civil Code sections 237.5 and 237.7 provide for appointment of counsel and free transcripts for indigent parents. However, these are statutory, not constitutional rights. While we may agree with Rosemary that the right of indigent parents to be present at a proceeding to permanently sever the parent-child relationship is at least as important as the right to a transcript on appeal of judgment in that proceeding, the Legislature has not elected to authorize use of public funds for that purpose. 2 Even if there were a basis for payment of travel expenses in cases where a parent’s testimony is necessary to insure due process and a constitutionally fair resolution of a section 232 proceeding, counsel’s failure to make an offer of proof of Rosemary’s anticipated testimony permits us to only speculate on the nature of that testimony. We conclude the court did not abuse its discretion in denying Rosemary’s motion for transportation costs to attend trial.

Rosemary also argues that denial of her motion for travel expenses made it impossible for her attorney to provide effective representation at trial. Her attorney asserts he was unable to effectively communicate with her either by telephone or by mail. Rosemary’s second argument fails for the same reasons as the first. Furthermore, a 1984 psychological evaluation determined that Rosemary had a full-scale I.Q. of 66, placing her in the mild range of mental impairment. The probation report also states that Rosemary did not have the ability to provide for herself and that she needed support and guidance in making decisions on a day-to-day basis. Rosemary’s counsel provided no reason Rosemary would be able to conmunicate more effectively with him in person than by telephone or mail.

Rosemary also contends the County failed to show by clear and convincing evidence that permanent severance of the parent-child relationship was the least detrimental alternative for Cleopatra. Specifically, Rosemary asserts her situation has stabilized and there is no showing she is likely to fail in the future to provide Cleopatra with a home, care and control, and an adequate parental relationship. (§ 232, subd. (a)(7).) Findings made pursuant to section 232 must be supported by clear and convincing evidence. (§ 232, subd. (c).) On review this court need only determine whether, when viewed in the light most favorable to the judgment, there is substan *699 tial evidence to support the trial court’s findings. (In re Angelia P., supra, 28 Cal.3d at p.924; In re Lynna B. (1979) 92 Cal.App.3d 682, 701 [155 Cal.Rptr. 256].) Although subdivision (a)(7) focuses on the parent’s failures during the period the child is in foster care and the likelihood of failure in the future, past conduct is relevant on the issue of future fitness. (In re Laura F (1983) 33 Cal.3d 826, 833 [191 Cal.Rptr. 464, 662 P.2d 922]; In re Angelia B., supra, 28 Cal.3d at p. 925.)

There is substantial evidence in the record to support the judgment freeing Cleopatra from Rosemary’s custody and control. Other than one telephone conversation, Rosemary has had no contact with Cleopatra since the child’s placement in a foster home in June 1982. Rosemary made no progress toward satisfying conditions of a reunification plan she signed in October 1982. Evidence was presented that Rosemary’s older children were doing satisfactorily in their mother’s custody. However, the probation report also indicated that, “[a]t best, the situation there could be diagnosed as guarded.” The probation department concluded that the introduction of a young child into the household, especially one who, like Cleopatra, has physical handicaps requiring extra care, would have a detrimental impact on her well-being. The social worker who conducted the home study in November 1985 also concluded the likelihood of a successful placement of Cleopatra with Rosemary was poor.

Disposition

Judgment affirmed.

Kremer, P. J., and Butler, J., concurred.

All statutory references are to the Civil Code unless otherwise indicated.

Penal Code section 2625 establishes a procedure through which state prisoners incarcerated in California are able to attend section 232 hearings. However, this court has held that a father is not denied equal protection of the law, even though he is unable to be physically present at the section 232 proceedings, where he is confined in an out-of-state prison and therefore not subject to the rights created under Penal Code section 2625. (In re Gary U. (1982) 136 Cal.App.3d 494 [186 Cal.Rptr. 316].)

Cites, in this corpus

In Re Laura F. S.F. 24344 · 1983-05-19
Cheryl F. v. G. E. U. Civ. 24249 · 1982-10-12
Department of Social Services v. Ronald P. S.F. 24184 · 1981-02-11
In Re Lynna B. 43561 · 1979-05-03

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