In re Christopher M.
Filed 1/30/14
In re Christopher M. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re CHRISTOPHER M., a Person Coming
Under the Juvenile Court Law.
STANISLAUS
COUNTY COMMUNITY SERVICES AGENCY,
Plaintiff
and Respondent,
v.
MELODY M.,
Defendant and Appellant.
F067785
(Super. Ct. No. 516144)
THE COURT
APPEAL
from orders of the Superior Court of
Stanislaus County. Ann Q. Ameral,
Judge.
Valerie
N. Lankford, under appointment by the Court
of Appeal, for Defendant and Appellant.
John
P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Melody M. appeals
from an order terminating her parental
rights under Welfare and Institutions Code section 366.26
Christopher.
to apply the exception to adoption
contained in section 366.26, subdivision (c)(1)(B)(i), hereafter referred to as
the “beneficial relationship†exception.
We affirm.
PROCEDURAL
AND FACTUAL SUMMARY
These
dependency proceedings were initiated in July 2011 after the Stanislaus County
Community Services Agency (agency) found then 15-month-old Christopher living
with Melody and her girlfriend in a motel room where adults were smoking
marijuana and methamphetamine. At the
time, Melody was on probation, having been convicted of child cruelty related
to Christopher’s seven-year-old half-brother, Joshua. Christopher’s father, Charles, was unable to
take custody of Christopher.
The
juvenile court exercised its dependency jurisdiction over Christopher and
ordered reunification services for Melody and Charles. Melody’s case plan required her to
participate in individual counseling, complete a
and alcohol assessment and submit to random drug testing. The juvenile court also ordered weekly
two-hour visitation.
By
September 2012, Melody completed drug treatment, was in an aftercare program
and had been clean and sober for 104 days.
In addition, she was having daylong visits with Christopher and participating
in individual counseling and parenting classes.
However, Melody was having difficulty retaining information and managing
her emotions. Her counselor, Melissa
Hale, suspected that Melody had a learning disorder and recommended that the
agency refer her for a psychological evaluation.
Melody
was evaluated by psychologist Philip Trompetter who determined she was mildly
mentally retarded and suffered from a nonpsychotic mood disorder that was in
remission. He recommended the agency
refer her to Valley Mountain Regional Center (VMRC) to assess her capacity and
recommend services for her.
In October 2012,
following a contested 12-month review hearing, the juvenile court ordered the
agency to refer Melody to VMRC for an assessment and gave the agency discretion
to arrange overnight visits as long as Melody remained in a clean and sober
living environment. The
reunification services.
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Over
the ensuing four months, Melody remained in the sober living facility and
maintained her sobriety but was not actively engaged in recovery. In addition, she was given a referral for
VMRC but did not make an appointment.
She visited with Christopher on Fridays from 10:00 a.m. to 5:00 p.m. and
their visits went well. Melody watched
movies and played with him. There were
reports, however, that Melody was not adequately feeding Christopher and
attending to his health. According to
the foster mother, on one occasion, Melody fed Christopher only a few goldfish
crackers during a daylong visit, explaining that he was not hungry. The foster mother said he was very hungry
when she picked him up. On another
occasion, Melody took Christopher out in the rain even though he had an ear
infection and a cough. There were also concerns
about the way Melody treated Joshua during his overnight visitation with
her. She was reportedly impatient and
yelled at him, a marked difference from the way she parented Christopher.
The agency
opined that Melody made some progress in her services plan, but not enough to
demonstrate that she could independently care for Christopher. In its report for the 18-month review
hearing, it recommended the juvenile court terminate her reunification
services.
In
February 2013, following a contested 18-month review hearing, the juvenile court
terminated Melody’s reunification services and set a section 366.26
hearing. Melody challenged the setting
of the section 366.26 hearing by writ petition which this court denied (
2013, F066663) [nonpub. opn.]).
By
June 2013, Christopher had been in the care of Mr. and Mrs. C. for a year and
developed a close family bond with them.
The C.’s had no other children and wanted to adopt Christopher. Prior to being placed with the C.’s,
Christopher had been in six other placements, including two other concurrent
homes and a relative placement.
Christopher was removed from these placements for reasons other than his
suitability with one exception. Just
prior to being placed with the C.’s, Christopher was placed in a concurrent
home for several weeks. However, the
caregiver reported that Christopher was not adjusting well. He cried, threw fits and had a hard time
taking a bath. He also kept the
caregiver’s other son awake, not allowing him to take naps. Once placed with the C.’s Christopher
adjusted well. The agency felt certain
the C.’s would adopt him if given the opportunity.
The
agency reported that Melody attended five of the six visits scheduled for her
from February to May 2013. She did not
show up for a visit in March 2013 and did not call. The visits usually went well. Christopher was happy to see Melody and
Melody interacted appropriately with him.
However, the agency believed Christopher viewed Melody more as a “play
buddy†than a parent. He did not cry at
the end of visits and happily went with his caregivers. The agency recommended the juvenile court
terminate Melody and Charles’s parental rights and select a permanent plan of
adoption for Christopher.
In
July 2013, Melody appeared with her attorney at the section 366.26 hearing and
made an offer of proof that she visited Christopher, visits went well,
Christopher asked about his brother, she had a parental relationship with
Christopher, and severing her parental rights would not be in Christopher’s
best interests. Charles also appeared
and made an offer of proof that he loved Christopher, but believed that
adoption was in his best interest and supported the agency’s
recommendation. The juvenile court
accepted both offers of proof and no further evidence was offered. Melody’s attorney, however, objected to the
termination of Melody’s parental rights, stating Melody believed her
relationship with Christopher was such that it would be more detrimental than
beneficial to him to sever their relationship.
She asked the court not to terminate her parental rights.
The
juvenile court terminated Melody and Charles’s parental rights and ordered
adoption as the permanent plan. The
court did so after finding neither Melody nor Charles met their burden of
showing it would be detrimental to Christopher to sever their parental
rights. This appeal ensued.
DISCUSSION
Melody contends the juvenile court erred by
failing to apply the beneficial relationship
exception to termination of her parental rights to Christopher. She contends she maintained a parent/child
relationship with Christopher through visitation and that the juvenile court
could infer from the strength of their bond that Christopher would be harmed if
their relationship was severed.
Once
a dependency case reaches the permanency planning stage, the statutory
presumption is that termination is in an adoptable child’s best interests and,
therefore, not detrimental. (§ 366.26,
subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344 (Lorenzo
C.).) It is the parent’s burden to
show that termination would be detrimental under one of the statutory
exceptions. (In re Zachary G.
(1999) 77 Cal.App.4th 799, 809.) The
section 366.26, subdivision (c)(1)(B)(i), involves a two-part test: did the parent maintain regular visitation and
contact with the child, and would the child benefit from continuing the
relationship.
The
Court of Appeal, Fourth Appellate District, Division One interpreted the
beneficial relationship exception in In
re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn
H.) to mean “the [parent/child relationship that]
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.†(Id.
at p. 575.)
rejects a detriment claim and terminates parental rights, the appellate issue
is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1351 (Jasmine D.).)
The decision is not reviewed, as Melody argues, for substantial evidence
that termination would be detrimental.
To conclude there was an abuse of
discretion, the proof offered must be uncontradicted and unimpeached so that
discretion could only be exercised in one way, compelling a finding in favor of
the appellant as a matter of law. (Roesch
v. De Mota (1944) 24 Cal.2d 563, 570–571; In re I.W. (2009) 180
Cal.App.4th 1517, 1528.) Based on our
review of the record, we conclude the juvenile court properly exercised its
discretion in rejecting Melody’s argument.
There
is no dispute Melody maintained regular contact with Christopher and thus
satisfied the first part of the two-part test.
Melody failed, however, to show that Christopher would benefit from
continuing his relationship with her. While
the record reflects that Melody and Christopher had pleasant visits and loving
contact, she did not establish it would be detrimental to Christopher to sever
their relationship.
Melody
argues the duration and quality of her time with Christopher evidences the
benefit he derives from their relationship.
She points out that they spent many long visits together during which
they engaged in normal parent/child activities and that Christopher was happy
to see her and was affectionate with her.
Such evidence she contends shows that Christopher would suffer emotional
harm if her parental rights were terminated.
Melody likens her case to
Appellate District, Division One concluded the juvenile court erred in finding
the beneficial relationship exception did not apply and terminating a father’s
parental rights. (Id. at p. 301.) In
the custody of her father who had been her primary caregiver. The father fully complied with his case plan
and regularly visited S.B. three days a week.
When the visits ended, S.B. became upset and wanted to leave with her
father. The juvenile court terminated
the father’s reunification services at the 12-month review hearing because
health problems impeded him from caring for S.B. full time. At the section 366.26 hearing, the juvenile
court terminated his parental rights. (
The court in S.B. acknowledged as it did in Autumn
H. that the relationship envisioned by the beneficial relationship exception
generally “arises from day-to-day interaction, companionship and shared
experiences, and may be continued or developed by consistent and regular
visitation after the child has been removed from parental custody. [Citation.]â€
(S.B., supra, 164 Cal.App.4th at p. 299; italics omitted.) However, the S.B. court stated that it did not “narrowly define or specifically
identify the type of relationship necessary to establish the exception†in
child had a “primary attachment†to the parent or that the parent and child
maintained day-to-day contact. The
exception may apply, the court stated, if the child has a “substantial,
positive emotional attachment†to the parent.
(S.B., supra, at p. 299.)
Applying those principles, the
relationship exception existed because the father had been the child’s primary
caregiver for three years and then immediately complied with “every aspect†of
his case plan after her removal. In
addition, the child continued to display a strong attachment to her
father. She initiated physical contact
with him, running into his arms to be picked up, nestled up to his neck,
whispered and joked with him and told him that she loved and missed him. The court concluded the child “derived
comfort, affection, love, stimulation and guidance from her continued
relationship†with her father. (
case.
Melody only had custody of
Christopher for 15 months. In addition, Christopher
did not display the depth of emotional attachment to Melody that S.B. displayed
to her father. On the contrary,
Christopher easily separated from Melody.
Further, unlike S.B.’s father, Melody did not fully comply with her case
plan. Anticipating that argument, Melody
argues she demonstrated her devotion in other ways ─ such as consistent
visitation and overcoming her drug use. Be
that as it may, it does not alter the fact that Christopher did not evidence a
“substantial, positive emotional attachment†to Melody.
Melody also cites but
distinguishes another beneficial relationship case out of the Court of Appeal, Fourth
Appellate District, Division One, In re
C.F. (2011) 193 Cal.App.4th 549 (C.F.),
in which the appellate court affirmed the juvenile court’s termination of a
mother’s parental rights. (
involved three children ranging in age between three and seven years who were
removed because of the mother’s drug use.
The mother was unable to maintain sobriety and the children were placed
with their maternal aunt who wanted to adopt them. (Id.
at pp. 552-553.) Two of the children
said they would be sad if they could no longer visit their mother, but all of
the children looked to their aunt to meet all their emotional and physical
needs. (Id. at pp. 556-557.)
In affirming, the court in
her burden of showing the termination of her parental rights would cause her
children detriment. (
The court stated: “While [the
mother] and the children had pleasant visits, and her daughter was sometimes
sad to see them end, there is no bonding study or other evidence that shows
[the mother] occupied a parental role in their lives, that they would suffer
any actual detriment on the termination of parental rights, or that the
benefits of continuing the parental relationship outweighed the benefits of
permanent placement with family members who are ready to give them a permanent
home.†(Id. at p. 557.)
Melody distinguishes her case by
pointing out that unlike the mother in C.F.,
she attained sobriety and she “did really well with Christopher and he went to
her willingly.†She ignores, however,
the complete absence of any evidence that Christopher would suffer actual
detriment if her parental rights were terminated.
We find no abuse of discretion in the
juvenile court’s failure to find the beneficial relationship exception
applicable in this case and affirm its order terminating parental rights.
DISPOSITION
rights is affirmed.
Detjen, J.
and Institutions Code unless otherwise indicated.
