In re B. M.
Filed 9/13/13 In re B. M. CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re B.M., a Person Coming Under the Juvenile Court Law.
H039064
(Santa Cruz County
Super. Ct. No. DP002628)
SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT,
Plaintiff and Respondent,
v.
S.R.,
Defendant and Appellant.
In April 2012, the
County Human Services Department (Department) filed a petition alleging the
failure of the Mother, S.R., and Father, E.M., to protect and provide support
for their daughter, B.M. (now three; the minor), under Welfare and Institutions
Code section 300, subdivisions (b) and (g), respectively.
court sustained the petition, bypassed reunification
services for both parents, and set a date for the permanency hearing. Shortly before that hearing, Mother filed a petition
under section 388 to change the court’s prior order setting a permanency
hearing and to request that reunification services be ordered. In December 2012, the court denied her petition
without an evidentiary hearing. Immediately
thereafter, the court granted the Department’s petition, (1) finding the minor
to be adoptable, (2) concluding that the beneficial parental relationship
exception was inapplicable, and (3) ordering that the parental rights for both
Mother and Father be terminated.
On appeal, Mother contends that the
respects. First, she argues that because
she made a prima facie showing of changed circumstances, the court erred in
summarily denying her section 388 petition without affording her a
hearing. Second, Mother asserts that the
court’s finding that the minor was adoptable was not supported by substantial
evidence. Third, she contends that the
court erred in concluding that she had not met her burden of establishing the
beneficial parental relationship exception to adoption. We reject each of Mother’s appellate claims. Accordingly,
we will affirm the order declaring adoption as the permanent plan for the
child, B.M., and terminating the parental rights of Mother and Father.
FACTS AND
PROCEDURAL HISTORY
I. Initial April 2012
Petition and Detention Order
On April 5,
2012, the Department filed
a petition alleging that the parents had failed to protect the minor and that
she had been left without any provision for support. (§ 300, subds. (b), (g).) The Department alleged, inter alia, that both
parents had untreated or undertreated substance abuse issues; Father was on
federal probation related to drug trafficking; Father had beaten Mother and
choked her until she was unconscious, Mother believing at the time that he was
going to kill her; and both parents had left the minor in the care of her
maternal grandmother, J.R., a woman who had had an extensive child welfare
history that included substantiated substance abuse and physical abuse.
On April 6,
2012, the court ordered
the minor detained pursuant to section 319, subdivision (a). The court ordered that Mother be permitted
supervised visitation of the minor at a minimum of three times per week.
II. May 2012
Jurisdiction/Disposition Report
In its May 2012 jurisdiction/disposition
report, the Department reported that after the minor was detained by court
order on April 6, 2012,
she was placed in a licensed foster home in Santa Cruz County. The Department reported a
series of occurrences that led up to the filing of the petition in April.
In January, 2011, Mother and
the minor had been “kicked out of a relative’s home,†and had been “staying in
various hotels on vouchers.†Mother had reportedly
used heroin and methamphetamine in the minor’s presence.
On August 3,
2011, Mother was
arrested after attempting to bring six grams of methamphetamine and a glass
pipe into a Santa Cruz County Courthouse.
items were in Mother’s purse and were discovered during screening. She claimed that the purse and its contents
belonged to a friend, K. (Six days
later, Mother told a social worker that the purse and its contents had
belonged to her cousin, M.) She admitted, however, that she was a
recovering methamphetamine addict and had used the drug the previous
evening.
On March 13,
2012, the Department
investigated a report of physical abuse of the minor inflicted by her maternal
grandmother, J.R. The minor at that time
was living with J.R.; neither Mother nor Father lived in J.R.’s home. It was reported that J.R. “was very rough
with [the minor] . . . [had] cuffed [her] on [the] back as she was going inside
and [the minor] fell forward . . . . Of concern is that the grandmother,
[J.R.,] has a significant CPS history and substantiated physical abuse of the [M]other,
[S.R.,] and her sister[,] the maternal aunt.â€
On March 18,
2012, the Department
investigated reports of neglect of the minor by Mother and emotional abuse by
Father. Early that morning, it was
reported that Mother and the minor were visiting Father at his home in the Boulder
Creek area of Santa Cruz County. Father,
who was on federal probation, was in a residential treatment program in San José
and had allegedly received a “day pass†to come home. Mother and Father, who had both been drinking
hard liquor, began arguing, and “[F]ather started beating the [M]other and
choked her until she was unconscious.
[She] sustained a laceration to her head. The [F]ather is being charged with attempted
murder and child endangerment. The [F]ather
beat the [M]other while [the minor] was in the same room (unknown if [the minor]
witnessed this event).†The Mother fled
on foot to a neighbor’s house and called J.R., who picked her up and drove her
to the hospital. Father was later
located with the minor at a family member’s home and was arrested.
minor was released to the care of her grandmother, J.R. Afterward, J.R. reported to a social worker
that Mother had left the area and left the minor in J.R.’s care. Mother failed to respond to the social
worker’s calls for two weeks, and J.R. failed to cooperate with the Department
in its investigation.
The social worker reported
that “past reports indicate that [Mother] has been using alcohol and
[methamphetamine] since the age of 15.â€
(Mother was 24 at the time of the May 2012 report.) It was reported that Mother completed a first
Proposition 36 drug treatment program in May 2008. After her arrest in August 2011, she received
an order to undergo a second Proposition 36 drug treatment program, which had
not been completed as of May 2012.
The social worker
summarized: “[The minor], who is not
quite two years old[,] has lived in chaos, has not known who . . .
her primary caretaker is, has been passed from family member to family member,
all of which struggle with stability and substance abuse. [The minor] deserves a drug[-]free and
violen[ce-]free home life. She deserves
stability and safety, two areas [Mother] is still working on for herself.â€
In a June 20, 2012
supplemental report, the Department indicated that it had not been provided any
record that Mother had presented herself for drug testing, notwithstanding her
statement that she had been tested on June 4.
Additionally, Mother missed a June 4 appointment for an alcohol and drug
assessment. The social worker also
reported that Mother had said that she had not used drugs since May 18, 2012.
III. June 2012 Jurisdictional
Hearing
A contested jurisdictional
hearing took place on June 29, 2012, in which the Department, Mother, Father,
and the minor appeared through counsel. The
court heard significant evidence, including the testimony of Mother, the maternal
grandmother, J.R., Father’s cousin, and the social worker assigned to the
case. The court sustained the
allegations of the petition and found that it had jurisdiction over the minor
pursuant to section 300, subdivisions (b) and (g).
At a continued hearing on July
5, 2012, the court granted the Department’s motion to reopen evidence. Mother testified that she had left an in-patient,
28-day residential drug treatment program called Janus on the evening of July
4, after spending 17 days in the program.
She did not have permission from the Department to leave the program.
court found that reunification services should be bypassed as to Father and
Mother, pursuant to section 361.5, subdivisions (e)(1) and (b)(13),
respectively.
name="_ftnref7" title="">[7] It set a
selection and implementation hearing for October 30, 2012, which was later
continued to December 3, 2012.
IV. October 2012 Assessment
Pursuant to Section 366.26
On October 30, 2012, the
Department filed its assessment, pursuant to section 366.26. In the report, it reviewed, inter alia, the
minor’s history before being made a dependent of the juvenile court; the status
of Mother’s supervised visits with the minor; the minor’s physical and
emotional condition; the minor’s foster care status; and its opinions concerning
the minor’s adoptability.
name="_ftnref8" title="">[8] The
Department concluded that the minor was adoptable, and recommended that the parental
rights of Father and Mother be terminated and that a permanent plan of adoption
be established.
V. Mother’s November 2012
Petition to Change Order
On November 26, 2012, Mother
filed a “request to change order†(petition) pursuant to section 388. She requested that the court vacate the
selection and implementation hearing and order reunification services for
Mother. The court ordered that
proceedings on whether Mother had made a prima facie showing requiring a
hearing on the petition be held on December 3, 2012, at the time of the
selection and implementation hearing.
VI. December 2012 Permanency
Hearing
At the selection and implementation
(permanency) hearing on December 3, 2012, the court first addressed Mother’s
section 388 petition.
name="_ftnref9" title="">[9] After asking
several questions of Mother and hearing argument, the court denied the Mother’s
request for a hearing on her section 388 petition, finding that there were no
changed circumstances presented and that it was not in the minor’s best
interest to grant a hearing.
The court then conducted the
section 366.26 permanency hearing, receiving documentary evidence and testimony
from Mother. The court found by clear
and convincing evidence that the minor was both generally and specifically
adoptable, and approved the permanent plan of adoption. The court concluded further that there was no
compelling reason for finding that termination of parental rights would be
detrimental to the child and, accordingly, terminated the parental rights of
Mother and Father. It set a permanent
placement review hearing for June 6, 2013. Mother filed a timely notice of appeal. That order is one from which an appeal
lies. (§ 366.26, subd. (i)(1); see
393, superseded by statute on another point as stated in People v. Mena (2012) 54 Cal.4th 146, 156.)
DISCUSSION
I. Applicable Legal
Principles
Section 300 et seq. provides
“a comprehensive statutory scheme establishing procedures for the juvenile
court to follow when and after a child is removed from the home for the child’s
welfare. [Citations.]†(In re
Celine R. (2003) 31 Cal.4th 45,
52.) As our high court has explained, “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. [Citations.]
Although a parent’s interest in the care, custody and companionship of a
child is a liberty interest that may not be interfered with in the absence of a
compelling state interest, the welfare of a child is a compelling state
interest that a state has not only a right, but a duty, to protect. [Citations.]
The Legislature has declared that California has an interest in
providing stable, permanent homes for children who have been removed from
parental custody and for whom reunification efforts with their parents have
been unsuccessful. [Citations.] This interest is a compelling one. [Citation.]â€
(In re Marilyn H. (1993) 5
Cal.4th 295, 307.)
After it has been adjudicated
that a child is a dependent of the juvenile court, the exclusive procedure for
establishing the permanent plan for the child is the permanency hearing as
provided under section 366.26. The
essential purpose of the hearing is for the court “to provide stable, permanent
homes for these children.†(§ 366.26,
subd. (b); see In re Jose V. (1996) 50
Cal.App.4th 1792, 1797.) There are six
statutory choices for the permanency plan; the preferred choice is that the child
be ordered to be placed for adoption, coupled with an order terminating
parental rights. (§ 366.26, subd.
(b); see also In re Celine R.,
has thus determined that, where possible, adoption is the first choiceâ€];
“adoption is the normâ€].)
name="_ftnref10" title="">[10] The
court selects this option if it “determines . . . by a clear and convincing
standard, that it is likely the child will be adopted.†(§ 366.26, subd. (c)(1).)
Thus, at the permanency
planning hearing, “in order to terminate parental rights, the court need only
make two findings: (1) that there is
clear and convincing evidence that the minor will be adopted; and (2) that
there has been a previous determination that reunification services shall be
terminated. ‘[T]he critical decision
regarding parental rights will be made at the dispositional or review hearing,
that is, that the minor cannot be returned home and that reunification efforts
should not be pursued. In such cases,
the decision to terminate parental rights will be relatively automatic if the
minor is going to be adopted.’ [Citation.]
‘[T]he decisions made at the review
hearing regarding reunification are not subject to relitigation at the
termination hearing. This hearing
determines only the type of permanent home.’
[Citation.]†(In re Cynthia
D. (1993) 5 Cal.4th 242, 249-250, quoting Sen. Select Com. on Children
& Youth, SB 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile
Court Dependency Statutes, and Child Welfare Services (Jan. 1988).)
“If the court determines it
is likely the child will be adopted, certain prior findings by the juvenile
court (e.g., that returning the child to the physical custody of the parent
would create a substantial risk of detriment to the physical or emotional
well-being of the child) shall constitute a sufficient basis for the
termination of parental rights unless the juvenile court finds one of six
specified circumstances in which termination would be detrimental [to the
child].†(In re I.W. (2009) 180 Cal.App.4th 1517, 1522-1523, citing
§ 366.26, subd. (c)(1).) The six
specified circumstances in section 366.26, subdivision (c)((1)(B) may serve as
compelling reasons for the court’s electing not to terminate parental rights if
it finds that such “termination would be detrimental to the child.†These circumstances are “actually
court must choose adoption where possible.â€
(In re Celine R.,
legislative preference for adoption where reunification efforts have
failed.’ [Citation.] At this stage of the dependency proceedings, ‘it
becomes inimical to the interests of the minor to heavily burden efforts to
place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the
court, in exceptional circumstances [citation],
to choose an option other than the norm, which remains adoption.†(Ibid.,
original italics.) One such exception—urged
by Mother here—based upon the beneficial parental relationship, requires a
showing that “[t]he parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i).)
II. Evidentiary Hearing on
Section 388 Petition Was Properly Denied
A. Applicable
Law
After the court has
determined the child to be a dependent of the juvenile court, “[a]ny parent or
other person having an interest in the child†may petition the court to change,
modify or set aside a previous juvenile court order based upon a change of
circumstances or new evidence. (Former § 388,
subd. (a), amended by Stats. 2012, ch. 846, § 30.5, p. 6895, eff.
Jan. 1, 2013.)
seeking modification of a prior court order pursuant to a section 388 petition
must “make a prima facie showing to trigger the right to proceed by way of a
full hearing. [Citation.]†(In re
Marilyn H., supra, 5 Cal.4th at
p. 310.) The petition is liberally
construed in favor of its sufficiency. (
415; see also Cal. Rules of Court, rule, 5.570(a).) “There are two parts to the
prima facie showing: The parent must
demonstrate (1) a genuine change of circumstances or new evidence, and that (2)
revoking the previous order would be in the best interests of the children. [Citation.]â€
(In re Anthony W. (2001) 87 Cal.App.4th 246,
250.) If the petition’s allegations, liberally
construed, do not show changed circumstances under which the child’s interests
would be promoted by changing a prior order, the court need not order a hearing
on the section 388 petition. (
799, 806.) The parent’s burden of
showing that changed circumstances are sufficient that the child’s interests
would be promoted by modifying a prior order “is a difficult [one] to meet in
many cases, and particularly so when . . . reunification services have been
terminated or never ordered. After the
termination of reunification services, a parent’s interest in the care, custody
and companionship of the child is no longer paramount. [Citation.]
Rather, at this point, the focus shifts to the needs of the child for
permanency and stability. [Citation.]†(In re Angel
B. (2002) 97 Cal.App.4th 454, 464.)
A determination on whether
to change an order by granting a section 388 petition “is ‘committed to the
sound discretion of the juvenile court, and [its] ruling should not be
disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] An abuse of discretion occurs when the
juvenile court has exceeded the bounds of reason by making an arbitrary,
capricious or patently absurd determination. [Citation.]â€
(In re Marcelo B. (2012) 209 Cal.App.4th 635,
642, quoting and citing
318.)
B. Background
Concerning Section 388 Petition
Eight days before the
permanency hearing, Mother filed a petition pursuant to section 388 requesting
that the permanency hearing be vacated and that reunification services be
ordered. She alleged that “Mother
believes that it is in [the minor’s] best interest to have her mother in her
life not only as her mother, but also as her teacher, mentor and best
friend.†An attachment to the petition
included the following statement:
“Mother reports sobriety date of 5/22/2012.â€
In the petition, Mother incorporated
by reference her letter dated November 20, 2012. Mother stated in the letter that she and the
minor had a very close mother-daughter relationship; “being separated from [the
minor] has devastated and destroyed [Mother] as a person, parent, and a
motherâ€; “[m]ost of all[, the minor] is the one truly suffering greatly from
this incidentâ€; and “it would be a [great injustice] to let [the minor] grow up
and not have [Mother] as her teacher, mentor, as well as her best friend, and
most of all her mother.†Mother closed: “Everything that has been asked of me I have
done or [am] in the process of completing.
I[’]m enrolled in parenting classes, domestic violence
classes, [and] treatment groups; I see a therapist and attend daily NA and/or
AA meetings. I[’]m changing my life not only for myself, but for
the best interest of my daughter . . . Now I ask this of you in the best
interest and well[-]being of my daughter, please return [the minor] to
me.â€
As attachments to her
letter, Mother included three pages of logs that apparently represented her
attendance at various NA/AA meetings.
Although she indicated in the letter that her attendance at such
meetings was “daily,†the logs appear to show that Mother attended eight
meetings out of the 31 days of July, 10 days out of the 31 days of August, nine
days out of the 30 days of September, 10 days out of the 31 days of October,
and 14 days out of the 20 days of November prior to her letter. Also attached was a letter indicating that
Mother had attended her first counseling session at a domestic violence center
on November 19.
The court asked several
questions of Mother concerning her section 388 petition. She indicated that she had entered a
treatment facility on November 27, 2012; attended some AA meetings between July
and November, 2012;
name="_ftnref12" title="">[12] been sober since May 22, 2012; commenced
domestic violence counseling on November 19, 2012, attending two sessions; and planned
to attend parenting classes beginning in January 2013. The court, in denying the request for
hearing, noted that the record showed that Mother had “been struggling with
treatment and sobriety and intervention since 2006.†It observed that Mother had a safety plan
that she had not complied with, had left the Janus drug treatment program, and had
had “[a] series of relapses.†It
indicated that while Mother claimed to have been sober since May 2012, there
was no proof that this was true. The
court remarked that the law required changed, “[n]ot changing,†circumstances
for a section 388 petition. It indicated
that there were not even changing circumstances, as Mother had only within the
past week started a drug treatment program, had only recently started domestic
violence counseling that she had needed for a long time, and had not yet even
commenced parenting classes. The court
also noted that the section 388 petition “really should have been filed months
ago.â€
The court therefore found
that it was not in the minor’s best interest to grant a hearing on Mother’s
section 388 petition, and that Mother had failed to present changed
circumstances to warrant the granting of reunification services that she
requested. It observed: “I cannot say it’s in the child’s best
interest to wait and see if Mother can be successful when she hasn’t even been
able to fully engage in those services, let alone gain the insight, gain the
progress that would be needed for us.
Mother’s timing is not aligned with [the minor’s] case under the
law.â€
C. No
Abuse of Discretion
The court did not abuse its
discretion by denying Mother’s request for a hearing on the section 388
petition. Mother was required to show
both “(1) a genuine change of circumstances or new evidence, and that (2)
revoking the previous order would be in the best interests of the children. [Citation.]â€
(In re Anthony W.,
court to have concluded that Mother satisfied neither element of the requisite
prima facie showing.
With respect to a showing of
changed circumstances, Mother’s petition, coupled with the record of the
hearing, indicated that she had enrolled in a drug treatment program on
November 27, 2012. This recent
enrollment was juxtaposed against evidence from the record, inter alia, of Mother’s
(1) reported nine-year history of alcohol and methamphetamine use; (2) lengthy
delay in completing a second Proposition 36 drug treatment program ordered in
2011; (3) refusal of various requests for drug testing; (4) having left the
Janus 28-day residential drug treatment program in July 2012 halfway through
the program, reportedly because she was angry about a request by staff that she
submit to drug testing; (5) failure to provide any drug test results to
corroborate her claim that she had been sober since May 2012; (6) failure to
explain why she waited until November 19 to start
had been beaten and choked into unconsciousness by Father some eight months
earlier; and (7) failure to provide any explanation for waiting until November
27—one week before the permanency hearing—to finally enter a drug treatment
program. Based upon the facts of this
case, we agree with the court below that the evidence provided in the petition
that Mother had commenced taking
steps to address the issues that had resulted in the minor being declared a
dependent of the juvenile court did not represent “changed circumstances†under
section 388.
The court likewise did not
abuse its discretion by determining that Mother had failed to show that
revoking any previous orders—i.e., in this instance, vacating the permanency
hearing and ordering reunification—was in the best interests of the minor. Mother’s conclusory allegation that the
requested relief was in the minor’s best interest was inadequate to satisfy
Mother’s requisite showing. (
be conclusoryâ€].) As explained by
Division Three of the Second District Court of Appeal: “At this point in the proceedings, on the eve
of the selection and implementation hearing, the [child’s] interest in
stability was the court’s foremost concern, outweighing any interest mother may
have in reunification. [Citation.]†(Id. at
pp. 251-252.) And as later explained by
the same court, “[T]here is a rebuttable presumption that, in the absence of
reunification services, stability in an existing placement is in the best
interest of the child, particularly when such placement is leading to adoption
by the long-term caretakers. [Citation.] To rebut that presumption, a parent must make
some factual showing [in the § 388 petition] that the best interests of
the child would be served by modification.â€
(In re Angel B.,
doing well in her new foster home, and that the foster parents were stable and
willing to adopt the minor. The fact
that the petition alleged that Mother had begun to make some progress with the
problems that had caused the minor to be declared a dependent of the juvenile
court did not establish that the granting of a hearing on the petition was in
the minor’s best interest. (
sobriety, completion of various classes, and recent employment insufficient to
establish changing of prior order was in child’s best interest].)
III. Adoptability Finding Was
Supported by Substantial Evidence
A. Applicable
Law
“A finding of adoptability
requires “clear and convincing evidence of the likelihood that adoption will be
realized within a reasonable time.†(
on whether the child’s age, physical condition and emotional health make it
difficult to find a person willing to adopt that child. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
“[I]t is not necessary that the minor already be in a potential adoptive
home or that there be a proposed adoptive parent ‘waiting in the wings.’
[Citations.]†(Ibid.) In a case where the
child is considered generally adoptable, the court does not look at the
prospective adoptive home. (
1, 13.)
“On review, we determine
whether the record contains substantial evidence from which the juvenile court
could find clear and convincing evidence that the child was likely to be
adopted within a reasonable time. [Citations.]
The evidence must be sufficiently strong
to command the unhesitating assent of every reasonable mind. [Citation.] We give the court’s adoptability finding the
benefit of every reasonable inference and resolve any evidentiary conflicts in
favor of the judgment. [Citation.]†(In re
Valerie W., supra, 162
Cal.App.4th at p. 13.)
B.
1.
In the Department’s October
2012 section 366.26 assessment, the social worker described the minor as “a
beautiful two[-]year old girl, full of energy and with a very strong
personality. She is engaging and
sweet. [The minor] has some medical
issues that appear to be correctable.
She is generally a happy child.
[The minor] is placed in the home of her prospective adoptive parents,
who are willing and able to provide [the minor] with a forever home. In addition, if for some reason her current
prospective adoptive parents were not able to finalize an adoption, there are
families with approved home studies that are available to adopt children like
[the minor].†Elsewhere, the social
worker indicated that the minor was “a bright and sensitive child.â€
The social worker also noted
that the minor had been evaluated by a physical therapist in June 2012 but had
not qualified for services. The minor
was reported as having “[d]elayed fine and gross motor skills as well as oral
sensory issues. She has made good
progress in the last 6 months and is expected to catch up.â€
Additionally, in the October
2012 assessment, the social worker identified the minor’s current foster family
(with whom the child was placed on October 3) as a San José couple without
children who had been together since 1996 and had married in 2003. The foster mother had recently resigned from
a human resources position at a high-tech firm to stay at home with the minor;
the foster father worked as an engineer at a high-tech firm. The foster family was described as being “animal
lovers [who] have two dogs and two cats in their home. [¶ They] have always thought about adoption
as a way to build a family . . .†The
social worker noted further that the “[foster] parents knew that they wanted to
have a family, but knew that giving birth was not in their plans. [The foster] mother has been planning to
adopt since she was a very young girl.
When they met [the minor], they immediately knew that they wanted her to
be part of their family.†The Department
reported that the foster family had no criminal or child welfare history.
It was noted in the assessment
that the foster family had met the minor at the end of August 2012 and had
“been working on transitioning her in[to] their home. It is clear that [the minor] enjoys being
with this family and calls them ‘mommy’ and ‘daddy.’ [The foster] parents are very much in love
with [the minor] and have opened their home and their heart[s] to her.†The social worker indicated that although the
minor was too young to provide a statement, “she appears to be extremely
comfortable and happy at the care of her [foster] parents.â€
The Department concluded in
its report that the minor was “both generally and specifically adoptable.â€
2.
Attached to the Department’s section 366.26 assessment
was a report of a developmental evaluation of the minor (evaluation) made by
Dr. Barbara Bentley, a licensed psychologist, on August 27, 2012.
minor’s original foster mother, M.F., reported to Dr. Bentley that “when [the
minor] first came to her care[,] she had significant difficulties in
all areas.†M.F. indicated that the
minor “walked as if she [were a] very new walker[, seemed to have] had limited
experience with eating . . . was terrified by water and baths and had
significant oral aversions . . . [and] had significant sleep problems and had
multiple nighttime wakings . . .[that were both triggered by large adenoids and
possible sleep apnea as well as what appeared to be night terrors.†M.F. reported that the minor had made great
progress in four months but “still had significant needs and require[d] a great
deal of individualized support. She is
described as a very moody toddler.â€
Dr. Bentley in the evaluation
noted that the minor “presented as an extremely shy toddler†who “[e]ventually
. . . began to warm upâ€; was “a beautiful little girl†who was tall for her
age; had “an obvious asymmetry to her face†possibly due to reportedly chewing
on one side of her mouth; and expressed herself well and “showed a precocious
use of language for her age.†During the
consultation, the minor “had a slight tantrum during the fine motor tasks and
shut down completely and could not continue to participate in adult-directed
activities.†“A full assessment of [the
minor’s] behavioral functioning . . . was not completed†because she “shut
down†for a portion of the evaluation.
In the evaluation, Dr.
Bentley concluded: “[The minor] is a
beautiful 25-month-old girl with a history of a removal from her biological
family’s care. . . . From report, there
are a number of identified difficulties with her behavior, likely related to
her history of exposure to domestic violence, possible neglect, and suspected
abuse and the adjustment of having to count on various caregivers in her
life. She does not yet feel safely
attached and able [to] feel that her world is safe, reliable, or predictable,
despite placement in a very nurturing, enriching, and loving foster home . . . [¶]
However, on standardized measures of
developmental functioning, [the minor] demonstrates average and above-average
skills in all areas of development. She
has average cognitive skills and average fine motor abilities. Both her receptive and expressive
communication abilities are accelerated compared to other children her age. Despite her history of high-risk factors and
behavioral dysregulation, she is able to show lovely developmental skills. These will be excellent assets for her
learning how to adjust to a new home and once in a stable and consistent environment,
she may be able to regulate her behavior with supports.â€
3.
In connection with the
permanency hearing, the foster parents submitted a caregiver information form
with a letter attachment. In the letter
attachment, the foster parents noted that the minor had been living in their
home since October 3, 2012. They stated
that “[s]he has adjusted beautifully during this transition.†The minor was described as being very gentle
with the couple’s pets, and very social with other children (including those in
the couple’s extended family). Swinging
in the park was her favorite activity.
The foster family indicated that the minor was still attending
occupational therapy, but that it had been reduced to one session a month and
it was expected that it would cease soon.
“[The minor] continues to struggle with nightmares and nighttime
awakening. . . . In general, she is
terrified of the dark, of going to sleep, and of being alone (in her
crib). We are careful to have soothing,
consistent, bedtime routines in an effort to alleviate some of her anxiety
around sleep. . . .†The foster family
indicated that they “of course would love to adopt [the minor].†They indicated that Mother, although she had been
given their phone number, had not called the couple for the six weeks (at the
time the letter was written) that the minor had been placed with them.
4. The
Court’s Ruling
The court, noting the
statutory requirement that it find adoptability by clear and convincing
evidence, concluded that the minor was generally and specifically
adoptable. It observed: “[S]he is
approximately two and a half and has transitioned well into a prospective
adoptive home. She is healthy. . . .
[T]he challenges that she’s had with some of her fine and gross motor skills
and sensory issues, she is catching up with the help of the . . . occupational
therapy . . .[which] has decreased. Her
developmental clinical assessment does not show any barriers.†The court also noted that the prospective adoptive
mother had quit her job in order “to stay home to give her . . . direct care
and assistance[,] showing a higher level of commitment to this child
to incorporate her into the family.â€
C. The
Adoptability Finding Was Proper
Mother contends that the court’s
finding that the minor was adoptable was not supported by substantial evidence
“because of a diagnosed mental handicap and emotional state making it difficult
for a person to be willing to adopt her.â€
Mother argues further that the fact that the minor had been placed in a
home in which the foster parents expressed their willingness to adopt her
“should not be accepted as proof of adoptability because of the [minor’s]
ongoing emotional issues and the prospective parents’ inexperience.â€
We note at the outset that
Mother did not raise this challenge below when the court made its adoptability
finding. “ ‘Generally, points not urged
in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not
supported by substantial evidence, however, is an obvious exception to the
rule.’ [Citation.]†(People
v. Butler (2003) 31 Cal.4th 1119, 1126.) Thus, “while a parent may waive the
objection that an adoption assessment does not comply with the requirements
provided in section 366.21, subdivision (i), a claim that there was insufficient
evidence of the child’s adoptability at a contested hearing is not waived by
failure to argue the issue in the juvenile court.†(
616, 623; see also In re Eric P. (2002) 104 Cal.App.4th 395, 399.) Mother’s claim is therefore cognizable on
appeal.
As noted, the court
considers, among other things, the age, physical condition and emotional health
of the child in determining his or her adoptability. (In re
Sarah M., supra, 22 Cal.App.4th at
p. 1649.) Here, the minor’s young age
(approximately two years and four months at the time of the permanency hearing)
and good physical health were both “attributes indicating adoptability.†(In re Gregory
A. (2005) 126 Cal.App.4th 1554, 1562.)
the psychologist, Dr. Bentley, concluded that “on standardized measures of
developmental functioning, [the minor] demonstrates average and above-average
skills in all areas of development.†Dr.
Bentley concluded that the minor showed “accelerated†communication skills—she
tested at a “combined language score of 124[, which] falls at the 95th
percentile.†The professional indicated
further that despite the challenges the minor had faced, she was “able to show
lovely developmental skills.â€
The record showed that the
minor had some emotional difficulties reported by her original foster mother
and noted by Dr. Bentley, including sleeping difficulties and nightmares. And the current foster parents acknowledged
that the sleep and nightmare issues persisted at the time of their report
(November 12, 2012), and that they were working closely with the minor to
address them. But there was no
indication from any professional that these emotional issues were ones that
were considered to be serious or permanent, or that they in any way served as
an impediment for adoption. We conclude
that the minor’s emotional issues did not preclude a finding of adoptability
and that the court may have impliedly considered them to have been transitory and
the result of the circumstances that had caused the minor to become a dependent
of the juvenile court. (See
871 [adoptability finding upheld notwithstanding existence of some emotional
issues, considering children’s good health, attractiveness, intelligence, and
prospective adoptive placements].)
In addition, the minor here
did have a family, her current foster parents, who indicated a willingness and
ability to adopt her. This was another
factor supporting adoptability. “[A]
prospective adoptive parent serves as evidence a child is likely to be adopted
within a reasonable time either by the prospective adoptive parent or some
other home. [Citation.]†(In re Helen
W. (2007) 150 Cal.App.4th 71, 80.)
We conclude from the record
that there was substantial evidence in support of the court’s finding that the
minor was adoptable.
IV. Court’s Rejection of Beneficial
Parental Relationship Exception
A. Applicable
Law
Under the beneficial
parental relationship exception, the parents must establish that they “have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.â€
(§ 366.26, subd. (c)(1)(B)(i).)
requires a two-prong showing by the parent that (1) he or she has maintained
regular visitation, and (2) the child would benefit from continuing the
relationship. (In re Marcelo B., supra, 209
Cal.App.4th at p. 643.) “ ‘Sporadic
visitation is insufficient to satisfy the first prong’ of the exception.†(Ibid.,
quoting In re C.F. (2011) 193
Cal.App.4th 549, 554.) In order to
establish the second prong, the parent must show “that ‘severing the natural
parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed. [Citations.] A biological parent who has failed to reunify
with an adoptable child may not derail an adoption merely by showing the child
would derive some benefit from
continuing a relationship maintained during periods of visitation with the
parent.’ [Citation.]†(
italics, quoting In re Angel B.,
beneficial parent relationship to produce evidence establishing that exception.
(In
re I.W., supra, 180 Cal.App.4th
at p. 1527.)
In determining whether the
beneficial parental relationship exception applies, the court balances the
degree of benefit that a continuation of the parental relationship would afford
versus the benefit of placing the child with adoptive parents. (In re
Casey D. (1999) 70 Cal.App.4th 38, 50.)
As one court has explained: “[W]e
interpret the ‘benefit from continuing the [parent/child] relationship’
exception to mean the relationship promotes the well-being of the child to such
a degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents. In other
words, the court balances the strength and quality of the natural parent/child
relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If
severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed, the preference for adoption is overcome and the natural parent’s rights
are not terminated.†(
567, 575.)
Application of the
beneficial relationship exception is a case-specific endeavor. (In re
Autumn H., supra, 27 Cal.App.4th at
pp. 575-576.) “ ‘Interaction between
natural parent and child will always confer some incidental benefit to the
child. The significant attachment from
child to parent results from the adult’s attention to the child’s needs for
physical care, nourishment, comfort, affection and stimulation. [Citation.]
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court
finds regular visits and contact have continued or developed a significant,
positive, emotional attachment from child to parent.’ [Citation.]â€
(In re Bailey J. (2010) 189
Cal.App.4th 1308, 1315-1316.)
Review
of a court’s determination of the applicability of the parental relationship
exception under section 366.26 is governed by a hybrid substantial
evidence/abuse of discretion standard. (In
re Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315.) “Since the proponent of the exception bears
the burden of producing evidence of the existence of a beneficial parental . .
. relationship, which is a factual issue, the substantial evidence standard of
review is the appropriate one to apply to this component of the juvenile court’s
determination. Thus, . . .
a challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the ‘undisputed facts lead to only
one conclusion.’ [Citation.] Unless the undisputed facts established the
existence of a beneficial parental . . . relationship, a substantial evidence
challenge to this component of the juvenile court’s determination cannot
succeed. [¶] The same is not true as to the other
component of . . . the parental relationship exception . . . [, which] is the
requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that
termination would be detrimental.’ (§
366.26, subd. (c)(1)(B), italics added.)
A juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not
primarily a factual issue. It is,
instead, a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance of the relationship in terms
of the detrimental impact that its severance can be expected to have on the
child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court’s
decision is discretionary, the abuse of discretion standard of review applies.†(Ibid., original italics; see also In
re K.P. (2012) 203 Cal.App.4th 614, 621-622 [following In re Bailey
J.].)
B. Background
Concerning Parental Relationship Exception
The
court at the permanency hearing considered documentary evidence, namely, the
Department’s section 366.26 assessment (along with the attached developmental evaluation
by Dr. Bentley), the caregiver information form provided by the current foster
family, and logs containing narratives concerning Mother’s supervised visits
with the minor. It also heard testimony
from Mother.
In
its report, the Department noted that the minor had had three supervised visits with Mother, in August,
September, and October. The social
worker described these visits as follows:
“[Mother] is always at the office before [the minor] arrives. [Mother] usually takes [the minor] out of the
car seat and carries her to the playground.
[Mother] brings coloring books, bubbles and other appropriate activities
for [the minor] on each visit. [Mother] takes
pictures of [the minor]. [The minor]
appears to enjoy her time with [Mother] and laughs and plays with her [M]other.
[Mother] is appropriate with [the minor]
and [the minor] has a good time visiting her.
On 9/10/12, [the minor] had a difficult time at the end of the visit and
did not want to stop playing to get in the car with her foster mother. [Mother] began crying and [the minor] cried
as well. As soon as [the minor] was
buckled in her car seat, she calmed down and asked for some ice cream.†“After visits with her birth [M]other, [the
minor] tends to behave normally.â€
Mother
testified that during her monthly visits, the minor, “calls me [‘]mommy,[’]
she knows who I am. She always . . .
hugs me, she clings to me a lot more than she wants to play. She just want[s] to be attached to me. . . .
[I]t’s good. She misses me and I can
tell.†Mother typically brought snacks,
toys, and bubbles. They colored, drew,
and played with toys. When they separated
at the end of their visits, Mother typically placed [then minor] in a car
seat. Mother testified: “And I usually tell her I’ll see her next
time because she doesn’t want to go. She
usually starts to cry, and she . . . [resists Mother] putting her in the car
seat. She doesn’t want to go. She’s really attached.â€
In
her testimony, Mother explained that she did not want her parental rights
terminated “[b]ecause I’m changing my life and I’ve moved away. . . [The minor]
is a big part of my life. . . [S]he’s my world. . . I don’t feel that my rights
should be terminated because I’m changing my life. I know I can be the Mother that I can be to
her, and . . . without her in my life[,] it’s just
devastating.â€
Mother
testified that she believes it would be beneficial to the minor for her to
continue visiting Mother “[be]cause we have a close bond. She’s my baby and I’m her mother. . . . [S]he knows who I am . . . She . . .
needs me in her life. We need to have
this bond, this connection between us, because . . . it helps her from the
emotional . . . devastation. It’s . . .
traumatizing . . . when you’re torn away from your mother. . . And [the minor] was with me all the time. We did everything together. . . . I’ve
noticed since our visits have begun, . . . she’s changing . . . I try to tell
her I love her, and she just puts her head down. And before she used to tell me she loves me
back. And you can just see the time that
is separated between us is taking a toll on her mentally, physically and
emotionally. And . . . she is so young
and this isn’t [in] the best interest of her to be separated from me.â€
After
finding the minor to be adoptable, the court concluded that there was no
compelling reason for finding that termination of parental rights would be
detrimental to the child. The court noted
that the visits between Mother and the minor were “sweet†and
“appropriate.†It found it “tellingâ€
that the minor no longer responded when Mother told her that she loved her. It acknowledged that Mother had regular
visitation and contact with the minor, but indicated that it could not find
“that the child would benefit from continuing a relationship [with Mother
inasmuch] as the child is in a parental relationship with caregivers and not
Mother.â€
C. No
Error in Rejection of Beneficial Parental Relationship Exception
Mother argues that the court
erred in terminating her parental rights, which was a consequence of its
finding inapplicable the beneficial parental relationship exception under
section 366.26, subdivision (c)(1)(B)(i). She asserts that she met her dual burden of
establishing (1) her regular visitation of the minor, and (2) there was a
significant and positive emotional attachment between the minor and
Mother. Mother contends further it was
shown that continuation of the parent-child relationship would promote the
minor’s well-being to such a degree that it would outweigh the potential
benefits the child would receive from a permanent home with adoptive
parents.
We find no error in the
court’s rejection of the beneficial parental relationship exception in this
case.
We first consider whether
Mother demonstrated the existence of a beneficial parental relationship by the
two-prong showing of (1) regular visitation and (2) that the child would
benefit from continuing the relationship.
(In re Marcelo B.,
visitation and contact by Mother,
evidence. (In re Bailey J., supra, 189 Cal.App.4th at pp.
1314-1315.) But it did not find that the
minor would benefit from continuing the relationship with Mother. Since Mother, as the proponent of the
exception, had the burden of producing evidence showing its existence (id.
at p. 1314), the court’s conclusion that she did not satisfy the second
prong of the exception “turns on a failure of proof at trial, [such that] the
question for a reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law.
[Citations.]†(
In determining whether the
relationship between parent and child is beneficial, we look to such factors as
“(1) the age of the child, (2) the portion of the child’s life spent in the
parent’s custody, (3) the positive or negative effect of interaction between
the parent and the child, and (4) the child’s particular needs. [Citation.]†(In re Angel
B., supra, 97 Cal.App.4th at
p. 467, fn. omitted.) As we have noted,
the age of the minor favored her adoptability.
(In re Gregory A.,
minor’s life that she had spent in Mother’s custody was equivocal. At one time before the Department’s filing of
the petition in April 2012, Mother was living with the minor and minor’s
grandmother, J.R., in the home of the minor’s great-grandmother. At some point, however, Mother left the home
(without the minor) at the great-grandmother’s request. Although the interaction between Mother and
child from supervised visitation was positive, the Department reported that
“Mother’s untreated substance abuse issues have not allowed for [her] and [the
minor] to have a mother/daughter relationship.
It continues to be unclear as to who was the primary care provider for
[the minor,] as maternal grandmother claims that she had been taking care of
[the minor] for most of her life. [The
minor] appears to have a visiting relationship with her birth mother.†Further, Mother had offered no bonding study
or other evidence showing that termination of parental rights would have a
significant (or even any) actual detriment on the minor’s life. (See In
re C.F., supra, 193 Cal.App.4th at
p. 557.) And the particular needs of the
minor, as indicated in the Department’s section 336.26 assessment, were that
she be given the opportunity to live in a stable, drug-free, violence-free home
environment, one that she had not experienced at all during her short life
before being declared a dependent of the juvenile court.
There was indeed evidence
that the Mother’s contacts with the minor were positive—“sweet†and
“appropriate†in the words of the trial court. But even if the Mother and the minor may have
had “a loving and happy relationship†(In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419), or “frequent and
loving contact or pleasant visits†(In re
C.F., supra, 193 Cal.App.4th at
p. 555), these factors would not satisfy Mother’s burden of showing the
existence of a beneficial parental relationship. In short, there was a failure of proof by Mother
that the minor would benefit from continuing her relationship with Mother. Thus, “the
evidence [does not] compel[] a finding in favor of the appellant as a matter of
law. [Citations.]†(In re
I.W., supra, 180 Cal.App.4th at
p. 1528.)
name="_ftnref18" title="">[18]
But even if we were to
conclude (which we do not), based upon our review of the record for substantial
evidence, that Mother established as a matter of law the existence of a
beneficial parental relationship, her appellate claim nonetheless fails. Mother was also required to show that the
purported existence of the beneficial parental relationship presented “a
compelling reason for determining that termination would be detrimental to the
child.†(§ 366.26, subd. (c)(1)(B).) This is “a ‘quintessentially’ discretionary
decision, which calls for the juvenile
court to determine the importance of the relationship in terms of the
detrimental impact that its severance can be expected to have on the child and
to weigh that against the benefit to the child of adoption. [Citation.]†(In
re Bailey J., supra, 189 Cal.App.4th at p. 1315, original italics.) Given the evidence that the minor was
adoptable and was currently living in a stable home with prospective adoptive
parents, balanced against evidence that there was not a close mother-child
relationship between the minor and Mother and the history of Mother’s drug,
crime, and domestic violence issues, the court did not abuse its discretion. The court’s implicit conclusion that “severing
the natural parent/child relationship would [not] deprive the child of a
substantial, positive emotional attachment such that the child would be greatly
harmed†(In re Autumn H., supra, 27
Cal.App.4th at p. 575) was not one that “ ‘exceeded the bounds of reason.’
†(In
re Stephanie M., supra, 7 Cal.4th 295, 318-319.)
In short, this is not a case involving “exceptional circumstances [citation] [in which the court is
permitted] to choose an option other than the norm, which remains
adoption.†(In re Celine R., supra,
31 Cal.4th at p. 53.) We thus
find that there was substantial evidence supporting the trial court’s
conclusion that Mother failed to establish the existence of the beneficial
parental relationship between her and the minor, and it did not abuse its
discretion by finding that any purported existence of such a relationship did
not present a compelling reason to apply this statutory exception in lieu of
adoption.
DISPOSITION
The December 4, 2012 order approving
adoption as the permanent plan for B.M. and terminating the parental rights of Mother
and Father is affirmed.
Márquez,
J.
WE CONCUR:
Rushing, P. J.
Grover, J.
name="_ftn1" title=""> [1] Further statutory references are to
the Welfare and Institutions Code unless otherwise stated.
name="_ftn2" title=""> [2] On May 8, 2012, after the Department provided notice pursuant to
the Indian Child Welfare Act (ICWA), the
court made a finding that an ICWA notice had been timely provided. On June 1, 2012, the court issued an order
concluding that E.M. was the presumed father of the minor.
