In re D.M.
Filed 1/23/13
In re D.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In
re D.M. et al., Persons Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and Respondent,
v.
S.E.,
Defendant
and Appellant.
F065360
(Super. Ct. Nos. 0083677-3, 0083677-4, 0083677-5, 0083677-6,
0083677-7)
In
re I.C. et al., Persons Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant
and Appellant.
F065400
(Super. Ct. Nos. 0083677-4, 0083677-5, 0083677-6, 0083677-7)
THE
COURT
title="">*
APPEAL from orders of the Superior
Court of Fresno
County. Brian M. Arax, Judge.
Monica Vogelmann, under appointment
by the Court of Appeal, for Defendant and Appellant S.E.
Daniel G. Rooney, under appointment
by the Court of Appeal, for Defendant and Appellant A.C.
Kevin
Briggs, County Counsel, William G. Smith, Deputy County Counsel, for Plaintiff
and Respondent.
-ooOoo-
INTRODUCTION
S.E.
(mother) and A.C. (father) appeal from the juvenile court’s orders failing to
find that the beneficial parent-child relationship exception to adoption is
applicable to their case and terminating the
I.C., K.C., J.C. and S.C., pursuant to Welfare and Institutions Code section
366.26.
juvenile court’s orders.
name="_ftnref3" title="">[2]
FACTS AND PROCEEDINGS
Background
On May 21, 2010, a petition was filed
by the Fresno County Department of Social
Services (department) pursuant to section 300 alleging that mother abused
and neglected her five children, ranging between 12 and five years of age, by
leaving them in an unsanitary and unsafe environment. The petition alleged mother’s residence had
no running water, the overflowing toilet was filled with feces, bags outside
the home were filled with feces, the kitchen sink was full of dirty dishes, and
there was spoiled food in the refrigerator.
The petition alleged mother failed to provide proper medical care for
K.C., who had recently undergone a procedure placing tubes in her ears. The petition alleged that father’s
whereabouts were unknown.
In 1995, mother had two young
children, L.A. and Alexis C. That year
mother gave birth to a third child. Arthur C.
Alexis died in 1995 under suspicious circumstances with bruise marks on
her head. The coroner ruled that the
cause of death was unknown. L.A.
disclosed that he and his deceased sister were physically abused by
mother. Arthur was later adopted and
L.A. lived with a relative until he reached the age of 18.
According to the social worker’s
report prepared for the disposition hearing, investigating Officer Hill found
mother’s apartment without running water and in the squalid state described in
the petition. In addition, Hill found
the grass around the home uncut. Trash,
full of moldy food and beset with flies, surrounded the perimeter of the
house. A swamp cooler without any
panels, exposing various moving parts including sharp, metallic fan blades, was
located in the center of the living room.
Although there was no mattress in the living room, it was clear to Hill
that people lived there. Clothing, food
and trash lined the walls of the room.
The dishes stacked up in the
kitchen sink appeared to have old, not freshly prepared, food on them. There were bowls and plates with moldy food
on them. There were empty cans and
bottles across the kitchen counters.
There were empty pizza boxes on top of the stove. A microwave oven sat on the edge of a short
table. The electrical cord to the microwave
oven stretched across the room and made contact at several points with the gas
stove. There was a child’s potty chair
within arms’ reach of the stove, microwave oven and electrical cord. The refrigerator contained moldy food and a
nearly empty and expired container of milk.
The bathroom had toilet paper on
the floor that was soiled with blood and fecal matter. The floors and surfaces in the bathroom were
dirty. The toilet was filled to the brim
with fecal matter and insects. The
oldest child, D.M., told investigators that the children bathed about four
times a week, but not every day. I.C.
explained that the children were often left home alone. Mother told investigators that the water had
been shut off for a month.
At the jurisdiction hearing on
August 19, 2010, mother waived her right to a contested hearing and admitted
the allegations in the petition based on the social worker’s report. The disposition hearing was held on November
4, 2010. The court found that mother had
only made minimal progress toward alleviating or mitigating the causes
necessitating detention of the children.
The court ordered reunification services.
The social worker’s report prepared
in May 2011, stated that mother was participating in the aftercare phase of her
treatment program with Spirit of Woman, after completing a 90-day inpatient
treatment program. Mother had been consistent
with liberal visitation with her children.
In aftercare, however, mother began
missing treatment sessions and tested positive for alcohol consumption. Mother’s visits with the children were set
back to unsupervised visits instead of liberal visits until she could show
progress again and remain drug free.
Staffing meetings with mother in March and May of 2011 dealt with her
need to continue drug testing and attendance of Narcotics Anonymous/Alcoholics
Anonymous meetings, as well as going back into therapy and seeing a substance
abuse specialist.
On May 3, 2011, mother tested
positive for methamphetamine. The
department postponed visits with the children to ensure the safety of the
children and to prevent them from having visits with their mother while she was
under the influence of drugs and/or alcohol.
The social worker noted that the children had a strong bond with their
mother, hoped to be returned to her, and were disappointed they could not see
mother.
Mother demonstrated the ability to
complete objectives of her case plan by completing parenting and anger
management classes and a substance abuse program. The department recommended further
reunification services for mother but more limited, unsupervised visits due to
mother’s positive drug tests.
An addendum report by the
department indicated that father had been on an Immigration and Naturalization
Service (INS) hold as of March 2011, and was being held in an INS detention
facility in Sacramento. In June 2011,
mother tested positive for alcohol while in the aftercare phase of her
treatment program. The department
concluded mother was not benefiting from the treatment program. The department recommended supervised visits
for mother and termination of her reunification services. The court terminated mother’s reunification
services on September 22, 2011. A
bonding study was ordered by the juvenile court on November 3, 2011.
Section 366.26 Hearing
The
department’s report for the section 366.26 hearing was prepared in January 2012
and recommended a plan of adoption for the four younger children by the current
caregivers, who were the prospective adoptive parents. After March 2011, mother had supervised
visits with the children once a week.
The social worker noted that although I.C., K.C., S.C., and J.C., were
not generally adoptable due to their ages, the prospective adoptive parents
were willing to provide a permanent plan of adoption for all four
children. None of the children had any
major medical or behavioral issues. The
prospective adoptive parents had cared for the four younger children, as well
as D.M., since January 4, 2011.
The
four younger children all appeared to have a parent-child relationship with
their prospective adoptive parents. The
prospective adoptive parents provided appropriate tasks and challenging
activities for the children, who sought out the prospective adoptive parents
for company and comfort.
The bonding
study noted that mother appeared to have a strong attachment bond to her
children, but demonstrated a lackadaisical approach to adhering to the
requirements set forth by the court for the bonding study. Mother was difficult to contact, lacked
motivation, and showed an inability to maintain sobriety, indicating a high
risk of future neglect of her children.
The children were doing very well in their current, nurturing
environment.
An
additional section 366.26 report was prepared by the department in June 2012
and focused on D.M., who was 14 years old when the report was prepared. The prospective adoptive parents wanted to
adopt D.M. along with her other siblings.
The department acknowledged that due to her age, D.M. was not generally
adoptable, but her current caregivers were interested in adopting her with her
four siblings. The prospective adoptive
parents were ready and able to provide for D.M.’s physical, emotional, and
social needs. D.M. looked to her
prospective adoptive parents to meet her needs.
The department recommended adoption as D.M.’s permanent plan.
The
section 366.26 hearing began on July 17, 2012, and concluded on July 19,
2012. Dr. Laura Geiger testified that
she was a licensed psychologist and had conducted over one hundred bonding
studies. Dr. Geiger supervised a bonding
study on mother performed by a psychology intern. The study involved the four youngest
children. Mother arrived for the bonding
study and took some tests but did not finish them due to a transportation
issue. Dr. Geiger’s office attempted to
get mother to return for further testing, including the Stress Inventory for
Parents of Adolescents (SIPA), but mother’s telephone was disconnected and she
did not appear for her next scheduled visit.
Dr.
Geiger advised the intern to close the evaluation. Dr. Geiger did not believe the SIPA
evaluation was necessary to complete the bonding study because there was a
substantial amount of data from the social workers’ reports, interviews, and
the completed portions of the testing.
Based on the data that she had available, Dr. Geiger was very
comfortable completing the bonding study and making recommendations.
Dr.
Geiger explained mother took a parental role, guided play, was verbally
rewarding, gentle in redirecting her children, and that the children followed
mother’s directions. In assessing the
overall bond between parent and children, Dr. Geiger stood by the evaluation
that mother’s bond was fair to adequate.
Although
mother had a “substantial positive emotional attachment†with her children,
mother failed in her family reunification services by testing positive for two
different substances during her treatment phase and exposing her children to
domestic violence. Dr. Geiger concluded
that these negative exposures would harm the children if the parental
relationship was to be maintained. There
was a probability that mother’s substance abuse would reoccur should the
children be returned to mother. Also,
the prognosis was poor of adults over the age of 25, who still struggled with
substance dependence.
Dr. Geiger
believed the best plan for the children was a permanent home with adoptive
parents. A guardianship for the children
would, in Dr. Geiger’s opinion, be the most harmful situation because the
children would not have the ultimate stability of being adopted by their
guardians. There would still be a window
of possibly being returned to their mother’s custody with the prospect of
constant disappointment.
D.M. testified
that she did not always live with her mother prior to entering the foster care
system and stayed at times with father (her stepfather). During some of the visits with mother, mother
would say inappropriate things. Mother
would whisper to D.M. and her siblings that if mother did not get the children
back, she would kill herself or do some other harm to herself. Mother would tell the children to say that
they wanted to live with mother rather than a foster parent. D.M. remembered one visit with mother when
she told mother she wanted to live with mother and she began to cry.
D.M. stated that
she wanted to be adopted as her permanent plan.
As to whether she wanted continued contact with mother after she was
adopted, D.M. said that sometimes she felt like she wanted to have such contact
and other times she did not. D.M.
understood that adoption would mean that mother’s parental rights would be
terminated. D.M.’s caregivers and the
social workers explained a guardianship to her.
D.M. did not want to be placed in a guardianship because she did not
want her mother to try to get her back.
I.C., who was 13
years old at the time of the hearing, also testified. I.C. understood that if he was adopted, his
foster parents would be his parents for the rest of his life, not mother. I.C. understood that in a guardianship, he
would still have visitation with mother.
I.C. preferred adoption. I.C.
explained that if he went back with mother, he knew she would not get better,
she would stay the same. I.C. noted that
although she could have called often, mother called only a few times.
The
court found that despite their ages, the children were adoptable and likely to
be adopted. The court did not find any
evidence that the beneficial parental relationship exception applied to
father. As for mother, the court also
did not find the exception applicable.
The court found that although mother regularly visited the children, the
benefit of the relationship did not outweigh the benefits of adoption. The court noted that although there was a
definite parent-child bond between mother and the children, the children would
not be greatly harmed by severance of the parent-child relationship.
The court found
that mother’s involvement with the children was emotionally inconsistent and
was troubled that mother whispered to D.M. that she would kill herself if she
did not reunify with the children. The
court found this statement to be highly emotionally damaging. The court found that the preference for
adoption was not overcome by mother and it terminated mother and father’s
parental rights with a permanent plan of adoption.
The parents
argue that because of the close relationship mother had with her children, the
parental benefit exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)) should have been applied in this case. Parents contend terminating their parental
rights would be detrimental to the children.
They maintain mother was involved with the children and that the
juvenile court abused its discretion in failing to apply the beneficial
parent-child relationship exception.
Parents also argue that the trial court applied the wrong legal test in
denying the beneficial relationship exception to adoption based on the best
interests of the children. We disagree.
Appellate courts
have interpreted the phrase “benefit from continuing the relationship†to refer
to a parent-child relationship that promotes the wellbeing of the child to such
an extent as to outweigh the benefits the child would gain in a permanent home
with adoptive parents. Courts balance
the strength and quality of the natural parent-child relationship against the
security and sense of belonging the new family would provide. If severing the natural parent-child
relationship would deprive the child of a substantial, positive emotional
attachment so that the child would be greatly harmed, only then is the preference
for adoption overcome and the parents’ rights are not terminated. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 (L.Y.L.); In re Autumn H.
(1994) 27 Cal.App.4th 567, 575.)
To meet the
burden of proof for this exception, the parent must show more than frequent and
loving contact or pleasant visits. (
interaction, companionship, and shared experiences. The parent must show he or she occupies a
parental role in the child’s life that results in a significant, positive,
emotional attachment from child to parent.
(Id. at p. 954.) We review the juvenile court’s findings
concerning the parental benefit exception under the deferential abuse of
discretion standard.
name="_ftnref4" title="">[3] (In re
Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (
Where the issue
on appeal turns on a failure of proof, the question for a reviewing court is
whether the evidence compels a finding in favor of the appellant as a matter of
law. The issue is whether the
appellant’s evidence was uncontradicted, unimpeached, and of such weight as to
leave no room for a judicial determination that it was insufficient to support
a finding. (In re Bailey J. (2010)
189 Cal.App.4th 1308, 1314; In re I.W. (2009) 180 Cal.App.4th 1517, 1528
(I.W.).)
We review the
record in the light most favorable to the judgment. (In re Misako R. (1991) 2 Cal.App.4th
538, 545.) When a court rejects a
detriment claim and terminates parental rights, the appellate issue is whether
the juvenile court abused its discretion in so doing. (Jasmine
D., supra, 78 Cal.App.4th at p. 1351.)
To conclude there was an abuse of discretion, the proof offered must be
uncontradicted and unimpeached so that discretion could be exercised in only
one way, compelling a finding in the appellant’s favor as a matter of law. (Roesch
v. De Mota (1944) 24 Cal.2d 563, 570-571; I.W., supra, 180 Cal.App.4th at p. 1528.)
The power of the
appellate
there is any substantial evidence, contradicted or uncontradicted, which
supports the conclusion reached by
the trier of fact. When two or more inferences can be reasonably deduced
from the facts, the reviewing court is without power to substitute
its deductions for those of the trial court.
(Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Steele
v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241,
1251-1252.) This is the rule even if the reviewing justices may have
ruled differently or reached a different result. (People ex rel.
Monterey Mushrooms, Inc. v. Thompson
(2006) 136 Cal.App.4th 24, 36; Hales v. Snowden (1937) 19
Cal.App.2d 366, 371.)
The parents
argue mother had a strong relationship with her children, exercised regular
visitation, and that the children loved mother.
In parents’ view, mother’s maintenance of a true parent-child
relationship with her children warranted a finding that termination would be
detrimental. The parents rely on their
reading of In re S.B. (2008) 164
Cal.App.4th 289 (S.B.) and
681 (Amber M.) to support their
claim. We are neither factually nor
legally persuaded by the parents’ argument.
Neither
reunify, coupled with regular, pleasant, and affectionate visits, compels a
finding that termination would be detrimental to the child. The appellate court, in both cases, did
mention the parent’s effort as evidence of his or her devotion to the
children. (S.B., supra, 164 Cal.App.4th at p. 300; Amber M., supra, 103 Cal.App.4th at p. 690.)
The parent’s
effort and devotion, however, was not the linchpin to either
cases, there was uncontroverted third-party evidence, including expert opinion,
of a strong attachment between the parent and the children and the potential
for harm to the children. (
295-296; Amber M., supra, 103
Cal.App.4th at pp. 689-690.) In this
case, the parents presented no such evidence.
Mother had a
prior child welfare history, dating back to the 1990’s, that involved the death
of one child, the guardianship of another child until he became an adult, and
the adoption of a third child. Mother
had a long history of drug abuse and relapse.
The children were found in horrendous squalor at a time when mother was
caring for them and when mother was abusing substances. The children had no immediate access to
running water or basic sanitation.
Mother was unable to end her substance abuse during the reunification
period. Father was completely uninvolved
with the children.
There is little
doubt from the record that mother loves her children and, as the juvenile court
observed, had a bond with them. The
parent-child relationship, however, must arise from day-to-day interaction,
companionship, and shared experiences.
The parent must show that he or she occupies a parental role in the
child’s life that results in a significant, positive, and emotional attachment
from child to parent. (
954.)
We agree with
respondent that mother failed to demonstrate evidence at the hearing that the
children would benefit from maintaining a relationship with her. The two oldest children, D.M. and I.C.,
expressed a preference for adoption by their foster parents over guardianship
with the possibility that mother could regain custody over them. Although mother asserts that she was involved
with her children’s lives, her drug addiction dominated her relationship, or
absence of a relationship, with the children in a dependency proceeding that
lasted for over two years.
Mother failed to
demonstrate at the section 366.26 hearing that she occupied a true parental
role with her children that resulted in a significant, positive emotional
attachment of them to her. Mother did
not show that the juvenile court abused its discretion in rejecting the
application of the parental benefit exception to this case. We reject mother’s contention that the
juvenile court erred in considering the best interests of the children when it
did not find the parent benefit exception to adoption applicable in this case
or in ordering termination of the parents’ parental rights.
The juvenile court’s orders denying mother’s motion to
apply the parent-benefit exception and terminating the parental rights of
mother and father pursuant to Welfare and Institutions Code section 366.26 are
affirmed.
name="_ftn1" title="">* Before
Levy, Acting P.J., Gomes, J., and Detjen, J.
name="_ftn2" title="">[1] All
statutory references are to the Welfare and Institutions Code.
