In re C.M.
Filed 7/16/12 In re C.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
In re C.M., et al., Persons Coming Under the Juvenile
Court Law.
2d Juv. No. B236666
(Super. Ct.
No. J1285858)
(Super
Ct. No. J1285859)
(Super. Ct.
No. J1285860)
(Santa
Barbara County)
SANTA BARBARA COUNTY
CHILD PROTECTIVE SERVICES,
Plaintiff and Respondent,
v.
RAFAEL M.,
Defendant and Appellant.
Rafael M. (Father)
appeals from the juvenile court's order terminating his parental rights to two
of his three biological daughters, C.M. (born July 2001) and E.M. (born April
2005). He contends the children have
beneficial relationships with him and with their siblings that should have
prevented the termination of his parental
rights. (Welf. & Inst. Code,
§§ 366.26, subd. (c)(1)(B)(i), (c)(1)(B)(v).)
Father is married to
C.J. (Mother), who is not a party to this appeal. Mother has a son from a prior marriage, Saul
(born March 1997). The couple also have
three biological children: C.M. (born
July 2001), E.M. (born April 2005) and Sara M. (born September 2003). All four children were removed from the
parents' home in January 2009, after Saul complained that Father hit him with a
closed fist on the face and back. After
they had been placed in foster homes, Saul disclosed that Father frequently hit
him. C.M. confirmed that Father often
hit Saul and that he sometimes hit the other children.
Mother initially signed
a safety plan in which she agreed to keep Father out of the home. She failed to do so. The children were detained in foster
care. Sara soon began to have violent
temper tantrums and exhibit other aggressive behavior toward her siblings and
toward children who attended a day care in the foster mother's home. She was moved to a different foster
home. Saul was eventually placed in a
separate foster home as well. C.M. and
E.M. remained placed together throughout this matter and were eventually placed
together in the same potential adoptive family.
In March 2009, both
parents stipulated to the juvenile court's jurisdiction. Although they completed required parenting
courses and regularly attended supervised visits with the children, the parents
made little progress toward reunification.
During visits, Mother focused her attention almost exclusively on Saul,
ignoring the other children. Father was
reserved and soft spoken. Visits
centered around the children eating food brought for them by the parents. The children were happy to see their parents,
but generally spent the visiting time eating and playing with each other,
rather than interacting with Mother and Father.
Child welfare workers
soon expressed concern about Mother's odd behavior during visits. In addition to focusing her attention on
Saul, Mother brought the children inappropriate gifts including a partially
used bottle of rubbing alcohol, see-through underwear and a shot glass.
In October 2009, a
preliminary psychological evaluation concluded that Mother likely suffered from
biopolar disorder or some other mental illness.
According to the evaluator, "The reports of anger displays,
inability to receive or convey affection to her children, inappropriate gifts,
and odd behavior with her children and staff are causes for legitimate
concern. These factors suggest
underlying mental health issues which would interfere with parenting
ability." A second evaluation,
conducted a few weeks later by a Spanish-speaking psychologist, concluded that
Mother suffered from an unspecified psychotic disorder and from narcissistic
personality disorder. The evaluator
predicted that, because Mother was "detach[ed] from reality," and
"not dealing consciously, let alone effectively, with the
intervention" by respondent, "she will continue not only engaged in
an abusive relationship, but perhaps [become] abusive herself. Thus, she will continue to place her children
at risk of abuse." The evaluator
also concluded, "The presence of dysregulated anger, which could underlie
a bipolar disorder, along with a thought disorder interfere with the
development of adequate parenting ability.
These will prevent her from communicating adequately with her children,
disciplining them, and not only adequately expressing affection to them, but
also [be] a liability to their well-being."
Mother became very angry
and verbally abusive to respondent's staff during visits. When Saul missed a visit, Mother refused to
interact with the other children. She
told the case aide that, if she could not visit with all of her children, she
didn't want to visit with any of them.
Father's only response to this outburst was to walk the girls to the car
and say goodbye. On another occasion
when Saul missed a visit, Mother attempted to physically assault the case
aide. Father did not intervene, but left
it to another case worker to step in and calm Mother down. Both C.M. and E.M. witnessed this
outburst. Father later told a social
worker that he knew Mother needed help but she would not accept it. The court suspended visits for Mother in
early November 2009.
Mother's visits were
never reinstated. Father, however,
continued to attend supervised visits with the children. He also continued to reside with Mother, even
as he told social workers and case aides that they had separated. Father did not seem to appreciate the risk Mother
posed to the children. At visits, the
girls appeared happy to see him and were affectionate with him. They told case aides they enjoyed their
visits. Visits continued to center
around eating food that Father either brought with him or bought for the
children. The girls would sit near him,
or even on his lap while they ate and then go play among themselves. Father sometimes joined in the play, but not
often.
By the time of the
12-month review hearing, Father was unemployed and still living with Mother,
who was still resisting psychiatric treatment.
In addition, respondent reported that it had recently learned Father had
children from a previous marriage who lived in Riverside County and a prior,
sustained allegation of sexual abuse against one of those children. In 1997, his then 10-year old daughter
alleged that Father sexually abused her by touching her vagina under her
clothes on two separate occasions. These
allegations were substantiated by Riverside County Child Welfare Services. Father also had an outstanding warrant for a
1999 misdemeanor DUI in Riverside County.
Father made a variety of
conflicting statements about the sexual abuse matter. During a psychological evaluation, Father at
first denied that abuse had occurred. He
later claimed not to remember the incidents.
Ultimately, Father explained that the abuse occurred when he was
drinking heavily and said he was probably very drunk when it happened. Because he no longer drinks alcohol, he did
not think the incidents were relevant.
By the conclusion of the
12-month review hearing, the parties had agreed to extend reunification
services to Father for an additional three months, until October 25, 2010. Father agreed to participate in a
individual therapy to address the physical and sexual abuse allegations. The juvenile court terminated reunification
services for Mother and scheduled a section 366.26 hearing for Saul only.
At the 18-month review
hearing on October 25, 2010, respondent reported that, for much of the last
review period, Father had been unemployed and living in a shelter. He had recently gotten a part-time job and
was looking forward to getting full-time work.
Father had also disclosed to the social worker that he was upset with
Mother because she refused to address her mental health condition and because
"she wants him around all of the time for sex." In addition, a psychological evaluation
performed in September 2010 concluded that
Father might have an adjustment disorder and "at least mild brain
damage" after years of heavy drinking.
The evaluator also noted that Father "verbalizes that he
understands the severity of [Mother's] mental illness, but has not so far
exhibited an ability to hold his own in the relationship. She completely overwhelms the household and
[Father] in particular. This triggers
high levels of anxiety, emotional reactivity and aggressive behavior on his
part." Although the evaluator
recommended that Father participate in
she also concluded that he would be able to care for the children with
assistance.
Respondent reported to
the juvenile court that Father regularly visited with his daughters, that they
were affectionate with one another and that the girls appeared to enjoy the
visits. On the other hand, Father's
visits continued to focus on providing the children with snacks rather than
playing or doing other activities with them.
The trial court
continued the 18-month review hearing to early December 2010. At the December hearing, Father testified
that he had rented a house in Guadalupe and was no longer seeing Mother. Although he had given her rides in the past,
he had recently told her that he could no longer help her. The social worker testified, however, that
the day before, while she was running errands for her own parents, she happened
to see Mother walk up to Father's new house and enter it by the front
door. Father denied any knowledge of
Mother being in his house.
At the conclusion of the
hearing, the juvenile court noted that respondent had failed to provide
Spanish-language mental health treatment or counseling to Father, who appeared
to be in need of it. Even though the
court found that reasonable mental health services had not been provided to
Father, it also noted that the case had been pending for 22 months. The court saw no point in continuing
reunification services "because at this point I simply don't find that to
be in the best interest of the children, who, again, are happy with their
current placement . They deserve
permanency, despite [respondent's] failures." The court also noted that, even if respondent
had provided reasonable services, it was unlikely the family would be able to
reunite within six months because of the severity of both parents' mental
health issues, "other information in the file and the increasing severity
of the admittedly old sexual abuse report." The trial court terminated
reunification services and set the matter for a hearing on the termination of
parental rights pursuant to section 366.26.
In March 2011, C.M. and
E.M. were moved from their foster home in Santa Maria to a potential adoptive
family in Santa Ana, California. Saul
and Sara remained in separate foster placements in Santa Barbara County. Father regularly visited with them, although
he canceled some visits because of work.
He did not visit with C.M. and E.M. after they were moved. Father explained to the social worker that he
was not able to travel to Orange County because his truck needed new tires and
brakes which he could not afford. The
social worker could not provide Father with transportation to Orange
County. She told Father that he could
ask for telephone visits with the girls.
He never did. As a consequence,
Father did not visit with C.M. and E.M. between March 2011 and the termination
hearing in July 2011.
Prior to the section
366.26 hearing, Saul filed a section 388 petition in which he asked to
participate in the termination hearing.
He opposed the termination of Father's parental rights as to C.M.
because, he said, they shared a strong sibling relationship. Saul also filed a declaration describing his
very close relationship with both C.M. and E.M.
He expressed the fear that, if his sisters were adopted, he would not be
able to see them or communicate with them at all.
Father opposed the
termination of his parental rights on the ground that the he had a beneficial
relationship with the girls. The girls
were bonded to him and would, he contended, be harmed by severing the
relationship. In his testimony at the
hearing, Father repeated his explanation that he had not visited the girls
since their move because his truck needed repairs before he could make such a
long trip. He also disagreed with the
social worker's characterization of his visits with the girls. Father testified that he always tried to play
with them during visits. He believed
that the girls loved him very much and benefitted from their relationship with
him. He believed they would also suffer
if their relationships with Saul and Sara were terminated.
The social worker
testified that C.M. and E.M. were happy in their prospective adoptive home and
wanted to be adopted. She did not ask
them whether they missed their siblings, or whether they wanted to have visits
with their siblings.
C.M. testified that she
wanted to be adopted by her foster parents.
She also would like to see Father "twice a week." C.M. testified that she talks to Saul on the
telephone about once a week and that she would like to see him more often. It would make her sad if she could not see
Saul again. The juvenile court judge
asked C.M. to tell him about Father. She
cried as she answered, ""He's very nice and care[s]. He protects us. . . . He loves us very
much."
At the conclusion of the
hearing, the court ordered Father's parental rights terminated as to C.M. and
E.M. Although the court recognized that
the girls had strong ties to Father and to their siblings, it found that their
interest in permanency and stability outweighed their interest in maintaining
the parental and sibling relationships.
Discussion
Father contends the
trial court erred when it found that the exceptions for beneficial
relationships with a parent or with siblings did not apply to prevent the
termination of his parental rights. We
are not persuaded.
Section 366.26 requires
the juvenile court to terminate parental rights and select adoption as the
permanent plan for a child who cannot be returned to parental custody and who
is likely to be adopted, unless a statutory exception applies. (§ 366.26, subd. (c)(1).) Two exceptions are at issue here. First, parental rights should not be
terminated where "termination would be detrimental to the child"
because the parent has "maintained regular visitation and contact with the
child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Second, parental rights should not be
terminated where, "There would be substantial interference with a child's
sibling relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was raised with
a sibling in the same home, whether the child shared significant common
experiences or has existing close and strong bonds with a sibling, and whether
ongoing contact is in the child's best interest, including the child's
long-term emotional interest, as compared to the benefit of legal permanence
through adoption." (§ 366.26,
subd. (c)(1)(B)(v).) " '[T]he
burden is on the party seeking to establish the existence of one of the section
366.26, subdivision (c)(1) exceptions to produce that evidence.' (In re
Megan S. (2002) 104 Cal.App.4th 247, 252.)" (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Standard
of Review
We affirm the juvenile
court's factual findings if they are supported by substantial evidence. (In re
C.F. (2011) 193 Cal.App.4th 549, 553.)
"We do not evaluate the credibility of witnesses, reweigh the
evidence, or resolve evidentiary conflicts.
Rather, we draw all reasonable inferences in support of the findings,
consider the record most favorably to the juvenile court's order, and affirm
the order if supported by substantial evidence even if other evidence supports
a contrary conclusion." (
Cal.App.4th 942, 947.)
In addition to making
factual findings, however, the juvenile court is required to balance the
benefit children derive from maintaining parental and sibling relationships
against the benefit they derive from being adopted. Here, the juvenile court struck that balance
in favor of adoption. We review that
portion of its order under the deferential abuse of discretion standard. As the court noted in In re Bailey J., this is "a 'quintessentially' discretionary
decision, which calls for the juvenile court to determine the i
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." (In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)
"To trigger the
application of the parental relationship exception, the parent must show the
parent-child relationship is sufficiently strong that the child would suffer
detriment from its termination." (
Cal.App.4th 437, 449.) A beneficial
relationship "is one that '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.' (
Cal.App.4th 567, 575.) The
existence of this relationship is determined by '[t]he age of the child, the
portion of the child's life spent in the parent's custody, the
"positive" or "negative" effect of interaction between
parent and child, and the child's particular needs.' (Id.
at p. 576.)" (In re Amber M. (2002) 103 Cal.App.4th 681, 689.)
Overcoming the statutory
preference for adoption and avoiding the termination of parental rights
requires the parent to show both that he or she has maintained regular
visitation with the child and that the child would benefit from continuing the
relationship. (§ 366.26., subd.
(c)(1)(B)(i).) "Sporadic visition
is insufficient to satisfy the first prong" of the exception. (In re
C.F., supra, 193 Cal.App.4th at p. 554.) Satisfying the second prong requires the
parent to prove 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
relationship maintained during periods of visitation with the
parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Evidence that a parent has maintained "
'frequent and loving contact' is not sufficient to establish the existence of a
beneficial parental relationship."
(In re Bailey J., supra, 189
Cal.App.4th at pp. 1315-1316.)
Here, the juvenile court
made factual findings that the relationship between Father and the girls was
warm and affectionate. The girls enjoyed
their visits with Father and would be sad if they were permanently separated
from him. His behavior with the girls
was appropriate, if somewhat distant. At
the same time, Father never progressed beyond supervised visits and had not
maintained contact with the girls after they were moved to Orange County. Relying on those factual findings, the
juvenile court made the discretionary determination that, although there were
beneficial aspects to the parent-child relationship, those benefits did not
outweigh the benefits the girls would obtain from being adopted.
The juvenile court's factual
findings are supported by substantial evidence.
Although Father regularly attended supervised visits with the children
while they lived in Santa Barbara County, he failed to visit them after their
move to Orange County, or even to request telephone contact with them. Moreover, as the juvenile court found, Father
never progressed to unsupervised visits.
Although the girls enjoyed their snacks and play time with Father, and
were affectionate toward him, it was not abuse of discretion for the juvenile
court to conclude that the relationship was not "parental" or so
beneficial that it would outweigh the benefit of their having a permanent
adoptive home.
We also note that Father
never completely severed his relationship with Mother, whose mental illness,
uncontrolled anger and bizarre behavior posed a serious risk of harm to the
children. Father even acknowledged at
one point that Mother's behavior made him feel anxious and triggered his own
aggressive behavior. In addition, Father
failed to disclose his older children in San Bernardino County and his sexual
abuse history. Given all of these facts,
we conclude the juvenile court struck the proper balance when it found that the
benefit to the girls from maintaining their relationship with Father was outweighed
by the benefits they would obtain from having a permanent adoptive home. Its order terminating Father's parental
rights was not an abuse of discretion.
Beneficial
Sibling Relationship
Section 366.26,
subdivision (c)(1)(B)(v) provides an exception to termination of parental
rights where termination would substantially interfere with a significant
sibling relationship, the severance of which would cause detriment to the
child. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017, disapproved
on other grounds, In re S.B. (2009)
46 Cal.4th 529, 537 fn. 5.)
"Reflecting the Legislature's preference for adoption when
possible, the 'sibling relationship exception contains strong language creating
a heavy burden for the party opposing adoption.
It only applies when the juvenile court determines that there is a
"compelling reason" for concluding that the termination of parental
rights would be "detrimental" to the child due to "substantial
interference" with a sibling relationship.' (In re Daniel H. [(2002)] 99 Cal.App.4th [804], 813, quoting
§ 366.26, subd. (c)(1).) Indeed,
even if adoption would interfere with a strong sibling relationship, the court
must nevertheless weigh the benefit to the child of continuing the sibling
relationship against the benefit the child would receive by gaining a permanent
home through adoption. (In re L.Y.L.
(2002) 101 Cal.App.4th 942, 952-953.)" (In re
Celine R. (2003) 31 Cal.4th 35, 61.)
For reasons similar to
those we have already discussed, we conclude the juvenile court did not abuse
its discretion when it found that this exception did not apply. As the juvenile court acknowledged, C.M. and
E.M. had close, affectionate relationships with their older brother, Saul.
initial detention, until Saul was moved to a different foster placement. Even after that separation, they visited with
each other frequently. They also
maintained telephone contact after the girls were moved to Orange County. We are convinced, however, that the juvenile
court struck the proper balance when it concluded that any detriment to the
girls caused by interference with their sibling relationships would be
outweighed by the benefits of adoption.
Although C.M. testified she would be sad if she could not talk to her
brother anymore, there was no evidence either girl would be unable to adjust to
a disruption in their relationship. The
girls were thriving in their new home and wanted to be adopted, even though
they had not seen Saul since the move.
We also note there was never any realistic possibility these children
would be reunited in a single foster placement, given the differences in their
ages and needs and their parents' failure to reunify. (See, e.g., In re Jacob S., supra, 104 Cal.App.4th at p. 1018.) As a consequence, the juvenile court properly
exercised its discretion when it found the benefits of adoption outweighed the
benefit of maintaining these sibling relationships.
The
order terminating Father's parental rights as to C.M. M. and E.M. M. is
affirmed.
NOT FOR PUBLICATION
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Arthur
A. Garcia, Judge
Superior
Court County of Santa Barbara
______________________________
Cameryn Schmidt, under
appointment by the Court of Appeal, for Appellant.
Dennis A.Marshall,
County Counsel, County of Santa Barbara, and Toni Lorien, Deputy, for
Respondent.
name="_ftn1" title="">[1] All statutory references are to this code
unless otherwise stated.
name="_ftn2" title="">[2] The girls' relationships with Sara were less significant and less
likely to cause detriment if severed, primarily because of Sara's early
separate foster placement and her many special needs.
