In re Christie H.

Filed 10/1/07 In re Christie H. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Appellant Christie C. appeals the judgment terminating her parental rights to her minor daughter, Christie H., under Welfare and Institutions Code section 366.26.[1] Appellant contends the court erred by failing to consider Christies wishes with respect to adoption and by failing to grant appellants section 388 petition. She also asserts insufficient evidence supported the finding that the section 366.26, subdivision (c)(1)(A) beneficial relationship exception does not apply.[2] We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Christie H. was born in December 1997.

On December 3, 2003, a police officer was called to appellants apartment after she had called Christies school using slurred and incoherent speech. The officer found that the apartment was uninhabitable. Appellant reported that she was depressed and could not care for Christie. Appellant was placed on a section 5150 hold.[3] Christie was detained and placed in foster care.

On December 5, 2003, the Alameda County Social Services Agency (Agency) filed a dependency petition, alleging that appellant was unable to care for Christie because of her uninhabitable apartment, her mental health condition and lack of treatment, her history of substance abuse and arrests, fathers sexual abuse of older half-siblings, and her violation of a protective order against father.

At the detention hearing held on December 8, 2003, the court ordered Christie detained based on a prima facie finding that there existed a substantial danger to her physical or emotional health, and that there were no reasonable means to protect her without removing her from appellants custody.

At the jurisdictional hearing on December 22, 2003, appellant submitted to the Agencys petition on the basis of the social workers report. The report, filed on December 18, 2003, indicates that she had been the subject of two referrals in 1998 for caretaker absence/incapacity and for general neglect. Both referrals were substantiated. In the first such referral, her drug use was found to be a contributing factor.

The report also states that Christie has scoliosis, requiring her to wear a back brace for 15 to 20 hours a day. The principal at Christies school reported that Christie was frequently absent and that appellant had failed to pick her up from school on more than one occasion. The report indicates that appellant had 11 prior arrests or convictions. The underlying causes of her problems are identified as unaddressed substance abuse and mental health issues, along with a history of domestic violence involving Christies father. The Agency recommended that Christie be detained in foster care and that reunification services be provided to both parents.

On December 22, 2003, the court determined the allegations in the petition to be true, found that Christie came within section 300, subdivisions (b), (g), and (j), and granted services to the parents.

A status report was filed on June 3, 2004. The report found appellant to be in partial compliance with her case plan. She lacked consistency in her participation in substance abuse programs and was not entirely compliant with drug-testing requirements. For example, the Agencys social worker reported that appellant had submitted two tampered urine samples. On other occasions, she had tested negative. Appellant had been consistent in her visitation with Christie, and generally acted appropriately during these visits. An addendum report dated July 29, 2004, states that appellant was arrested on June 16, 2004, for petty theft shoplifting.

At the six-month review hearing held on July 29, 2004, the court found that appellants progress on her case plan had been minimal. Continued reunification services were ordered for her. Services to father were terminated.

The Agencys status report filed November 23, 2004 recommended that appellants reunification services be terminated. She was still visiting with Christie consistently every week. It was reported, however, that her behavior was inappropriate at times, generally coinciding with positive drug tests. Apart from the area of visitation, she was either in partial or non-compliance with her case plan. For example, she had failed to attend therapy to address her mental health issues and she continued to have some positive drug tests. The report indicates that an adoption assessment had been completed and that it appeared likely that Christie would be adoptable.

At the 12-month review hearing held on December 8, 2004, the court found that appellant had made only partial progress on her case plan.

An addendum report filed January 13, 2005, again recommended that reunification services be terminated as to appellant. It also recommended that the matter be set for a section 366.26 hearing. The social worker reported that appellant had been discharged from her drug treatment program due to disruptive behavior.

At a hearing held on January 20, 2005, the court ordered continued reunification services.

The Agency filed a progress report on April 4, 2005, stating that on February 1, 2005, appellant came to a supervised visit with a wrapped syringe in her bra. She continued to have some positive drug tests.

On April 6, 2005, the court ordered that services be continued and that appellant continue to submit to drug testing.

In its report filed on May 20, 2005, the Agency recommended terminating reunification services and setting the case for a section 366.26 hearing. The social worker reported that appellant denied that she was using drugs in spite of continued positive drug tests. Appellant continued to maintain visitation with Christie. The visitation schedule was for two hours of supervised visitation once a week. Appellant behaved appropriately during the visits.

On June 14, 2005, the court terminated services to appellant and set the hearing to terminate parental rights. Adoption was selected as the permanent plan. Appellants counsel reported that appellant was attempting to locate a residential treatment center that would accept children and that she would thereafter file a section 388 petition to regain custody of Christie. She did not file a writ petition challenging the setting of the section 366.26 hearing.

At a hearing held on October 11, 2005, the court granted the Agencys request for a six-month continuance to further evaluate Christies permanency plan. The court noted that Christie had expressed reluctance to being adopted, but deemed this to be a therapeutic issue and not a legal issue because the child was only seven years old. The Agency was ordered to find an adoptive family for Christie.

Shortly thereafter, Christies foster mother said that she was no longer able to care for her and a new foster-adoptive home was found and approved in November 2005. The family is a female couple with one child of their own. One of the prospective parents is a pediatrician. The other parent stays at home to care for the couples own daughter as well as Christie.

On March 13, 2006, appellant filed a section 388 petition requesting that the court reverse the order setting the section 366.26 hearing. She also asked for custody of Christie and requested family maintenance services. On April 6, 2006, the court granted a hearing on the petition.

By the second day of the hearing, appellant was in county jail, having been arrested on May 1, 2006, for petty theft and possession of a device to tamper with vending machines.

On May 8, 2006, appellant appeared at the section 388 hearing pursuant to a removal order because she was still in custody. The court denied her petition, stating: It does not appear to be in the best interests of Christie for the court to change her placement at this time and return her to the mother. As a practical matter, the court cannot return her. And I think it would be malpractice on my part to even think of such a thing given the mothers circumstances.

A hearing under section 366.26 was held on June 6, 2006. On June 29, 2006, the court terminated the parental rights of both appellant and father. Adoption was affirmed as Christies permanent plan. This appeal followed.

DISCUSSION

Appellant claims that the court erred in terminating parental rights because it failed to consider Christies wishes as required by section 366.26, subdivision (h). She also claims that the court erred in denying her section 388 petition. Finally, she asserts that she established the parental relationship exception to termination. We first address the section 388 petition.

I. Denial of Section 388 Petition

Appellant claims that the court erred in denying her section 388 petition. We disagree.

A parent may petition the court under section 388 for a hearing to modify an order of the court upon a prima facie showing that either circumstances have changed or new evidence exists, and that the modification would be in the best interest of the child. (In re Andrew L. (2004) 122 Cal.App.4th 178, 190.) Here, the court found that appellant satisfied the prima facie standard and granted a hearing on her petition.

[U]p until the time the section 366.26 hearing is set, the parents interest in reunification is given precedence over a childs need for stability and permanency. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (Id. at p. 309.) The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. (Ibid.)

The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)  The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations] (In re Stephanie M. (1994) 7 Cal.4th 295, 318319.) The denial of a section 388 motionrarely merits reversal as an abuse of discretion. (In re Amber M. (2002) 103 Cal.App.4th 681, 685686.) Having reviewed the record summarized above, we conclude the court did not abuse its discretion in denying appellants petition.

In the first place, as the court noted, it could not have granted the petitionto return Christie because appellant was in jail by the time of the second day of the hearing. While she testified that she believed she would be released in a few days, the fact remains that she was not presently able to care for Christie.

Appellant contends that the court could have waited to make its decision, however, by being arrested she jeopardized her probation for an earlier offense and thus there was some uncertainty regarding when she would be released. Moreover, her housing situation was unstable even prior to her arrest in that she had lived in several different rehabilitation program facilities. In fact, it appears that the only positive change in her circumstances was that she had consistently tested clean for drugs over the previous several months.

Appellant did not demonstrate that granting the petitionwould be in Christies best interests. Important factors in considering a childs best interests are: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.) On balance, these factors weigh against appellant.

The problems that led to the dependency were serious. Appellant initially was deemed incapable of caring for Christie due to poor mental health. She also had a history of drug abuse, which did not abate significantly until shortly before she filed her section 388 petition. And in spite of her apparent abstinence from drugs, she still was arrested while her petition was pending.

It is true that the bond between Christie and her mother was strong. Appellant had maintained regular visitation with Christie throughout these proceedings, and their relationship was very close. But Christie also had a strong bond with her foster-adoptive parents.

Finally, it appears appellants problems were not easily ameliorated, as evidenced by her lack of significant progress in her case plan, which led to the termination of reunification services. The reports submitted by the agency during these dependency proceedings demonstrated that she had a serious drug problem and difficulty maintaining stable housing. The fact that she was incarcerated on the final day of the hearing on her section 388 petition is a manifestation of her inability to provide a suitable home for Christie.

In sum, we hold that the trial court did not abuse its discretion in denying appellants section 388 petition.

II. Termination of Parental Rights

A. Did the Court Fail to Consider the Wishes of the Child?

Appellant contends that the Christies own views regarding termination and adoption were not presented at the section 366.26 permanency planning hearing, and were not considered by the court. She claims that the court erred by not taking Christies direct testimony on whether she wanted to be adopted. We disagree.

Before we turn to the merits of this issue, we briefly address the Agencys contention that appellant waived this argument by not raising it below. While we agree with the Agency, we will exercise our discretion to consider this argument. (See In re C. T. (2002) 100 Cal.App.4th 101, 110, fn. 7 [[E]ven if a waiver occurred, we may, at our discretion, hear issues the party has waived, particularly when the parties have already briefed them.].)

Section 366.26, subdivision (h) requires the court at the selection and implementation hearing to consider the wishes of the child. This evidence may be presented by direct formal testimony in court, informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court, or electronic recordings. (In re Joshua G. (2005) 129 Cal.App.4th 189, 201.)

The statute does not require that the court ascertain the childs wishes through direct testimony. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592; cf. In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) Instead, the court is required to consider the preferences to the extent those preferences are reasonably ascertainable. (In re Leo M., supra, at pp. 15921593.)

[A]lthough the court is obligated to consider a childs best interests at the section 366.26 hearing, the court need not follow the childs wishes unless he or she is over the age of 12. ( 366.26, subds. (c)(1)(B), (h).) Thus, even though young children . . . may want to live with [their parent], doing so may not be in their best interests and the court may nonetheless terminate parental rights. (In re Joshua G., supra, 129 Cal.App.4th 189, 201.) In the present case, Christie was eight years old at the time of the hearing.

Unlike appellant, we believe that the court was presented with sufficient evidence of Christies wishes during the termination hearing and that the court carefully considered this evidence. The issue of Christies ambivalence towards adoption was well documented. For example, the Agency reports indicated that she had expressed the desire to be returned to her mother. At other times, however, she stated that she did want to be adopted by her foster family. She was clearly attached to her foster parents and their daughter, and was surprised by her own feelings of wanting to be adopted. Even appellant indicated that if any family were to adopt Christie, she would want it to be the current foster family.

During the section 366.26 hearing, the court fully considered Christies feelings as reported by her mother, her foster mother, her therapist, and her social worker. At one point during the termination hearing, the court stated: We have a minor who has expressed that she doesnt want to be adopted. And she wavers back and forth. She is eight years old. The court definitely didnt plan to let her make the decision, but in order for the court to make the decision, I need all of the information that is important to the minor so that I can decide . . . . The reporters transcript of the hearing demonstrates that the court thoughtfully considered Christies feeling, concluding ultimately that, while Christie loved her mother, permanent placement with her foster-adoptive family would be in her best interests.

While the court could have requested to speak with Christie in person, the testimony and other evidence introduced from multiple sources consistently set forth Christies feelings of ambivalence. And the reports and sworn testimony of Agency social workers, based on interviews with Christie, were all admissible as competent evidence for the truth of the matters asserted, because the persons who prepared the reports were available for cross-examination. (In re Malinda S. (1990) 51 Cal.3d 368, 375382.) Appellants reliance on circumstances under which children who are 10 years old are allowed to participate in dependency proceedings is inapposite, since, even at the time of this writing, Christie is still less than 10 years old. In any event, we do not believe that the court would have gained any further insight from Christie herself.

Moreover, courts have noted that requiring young children to testify regarding their feelings about adoption can be quite stressful to them: To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. We must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma. (In re Leo M., supra, 19 Cal.App.4th 1583, 1593.) In sum, appellant has not demonstrated reversible error.

B. Did Appellant Establish the Section 366.26, subdivision (c)(1)(A) Exception?

Appellant contends that she established the parental relationship exception to termination. ( 366.26, subd. (c)(1)(A).) We disagree.

At the 366.26 hearing the court was mandated to select and implement one of four alternatives for the permanent plan:  termination of parental rights and adoption; identification of adoption as the plan but without immediate termination of parental rights; guardianship[,] or long-term foster care. [Citation.] (In re Jessie G. (1997) 58 Cal.App.4th 1, 6.) Adoption, if possible, is the preferred plan for such children. However, the court is to choose the disposition best for the child. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804; see also In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)

If the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of five specified exceptions. (In re L. Y. L., supra, 101 Cal.App.4th 942, 947.) In the absence of evidence termination would be detrimental to the minor under one of these exceptions, the court shall terminate parental rights . . . . [Citations.] (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249; In re Shaundra L. (1995) 33 Cal.App.4th 303, 307.) The exceptions to adoption provided in section 366.26, subdivision (c)(1) are a final check to ensure termination of parental rights is in the best interests of the minor and is the least detrimental alternative. (In re Tabatha G., supra, at p. 1165.) The specified statutory circumstances─actually, exceptions to the general rule that the court must choose adoption where possible─must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.)

The parental relationship exception applies when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship such that termination would be detrimental to the child. ( 366.26, subd. (c)(1)(A).)  [T]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. [Citation.] A juvenile court must therefore: balance[] 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 parents rights are not terminated. [Citation.] (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Appellant contends that we must employ the substantial evidence test as the standard of review in this case. Division Three of this district has held that the abuse of discretion standard is the appropriate standard. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) As the court observed in Jasmine D., The practical differences between the two standards of review are not significant. (Ibid.) We agree with the decision in Jasmine D. and will review the courts ruling here under the abuse of discretion standard.

The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the childs life spent in the parents custody, (3) the positive or negative effect of interaction between the parent and the child,^[] and (4) the childs particular needs. [Citation.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) As the court in Autumn H. noted, 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 adults attention to the childs 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Here, Christie was eight years old at the time of the section 366.26 hearing and had lived with her mother for six years. Though it appears appellant experienced personal difficulties during this time, she was able to maintain a close, loving relationship with her daughter even after she was removed. In spite of this closeness, appellant was unable to provide Christie with a stable and supportive home environment where her physical and emotional needs could be met.

As the facts discussed earlier in this opinion demonstrate, the evidence does not indicate that Christies relationship with her mother 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 re Autumn H., supra, 27 Cal.App.4th 567, 575; In re Jasmine D., supra, 78 Cal.App.4th 1339, 13491350.) While Christie looked forward to her visits with appellant, evidence was offered suggesting that the relationship was parentified in that Christie often worried about her mother and wanted to see her to make sure that she was safe. Christies fears appear to have been well founded, as appellant was challenged by her own substance abuse issues and by her inability to steer clear of the criminal justice system. Thus, even though appellant and Christie have a loving relationship, we do not believe that the evidence shows the kind of fervent, nurturing parental bond necessary to invoke the exception to adoption. (In re Jamie R. (2001) 90 Cal.App.4th 766, 774; In re Casey D. (1999) 70 Cal.App.4th 38, 5153.)

Importantly, we note that the foster-adoptive parents were committed to adopting Christie. The social worker testified that Christie looks to her foster mothers for her day-to-day emotional needs. A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent. (In re Angel B., supra, 97 Cal.App.4th 454, 466.) Accordingly, the court did not err by refusing to foreclose adoption under the parental relationship exception. (In re Jamie R., supra, 90 Cal.App.4th 766, 773774; In re Jasmine D., supra, 78 Cal.App.4th 1339, 1352; In re Amanda D. (1997) 55 Cal.App.4th 813, 821822.)

DISPOSITION

The orders are affirmed.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] Christies father is not a party to this appeal.

[3] Section 5150 provides in part: When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team provided by Section 5651.7, or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.