In re E.M.



















Filed 2/6/13 In re E.M. CA3













NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

In re E. M. et al., Persons Coming Under the Juvenile Court Law.	C071541
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. E. P., Defendant and Appellant.	(Super. Ct. Nos. JD231036, JD231037)

Appellant
E.P., the mother of minors E.M. and A.M., appeals from the orders of the
juvenile court terminating her parental
rights. (Welf. & Inst. Code,
§§ 395, 366.26; undesignated references are to the Welfare and
Institutions Code.) She contends the
juvenile court should have applied the beneficial parent/child relationship
exception to terminating parental rights.
We affirm.

BACKGROUND

In June
2010 mother tested positive for methamphetamine at the shelter where she
lived. As required by the shelter, she
entered a treatment program. A social
worker from the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Sacramento
County Department of Health and Human Services (DHHS) was assigned to her
for informal supervision. Mother was
discharged from the treatment program in July 2010 after testing positive for
methamphetamine. Later, she failed to
follow through with a referral for residential drug treatment and tested
positive for methamphetamine and cocaine on multiple occasions. In August 2010 she was admitted to a mental
health hospital for two weeks after she reported suicidal thoughts. She was hospitalized a second time in
September 2010 after making suicidal comments.
She left a residential drug treatment placement later that month. In October 2010 mother told the social worker
she was not going back to treatment and would place the minors with the
paternal grandfather.

DHHS filed
dependency petitions in October 2010, alleging jurisdiction over the minors
based on mother’s substance abuse and mental health problems. (§ 300, subd. (b).) The juvenile court detained the minors later
that month, placing them with the paternal aunt although they stayed at the
paternal grandfather’s house during the daytime. The minor’s father was deceased.

The
November 2010 jurisdiction/disposition report noted that mother reported being
diagnosed with bipolar disorder, manic depressive disorder, and a severe case
of anxiety. She began using drugs when
she was 19, quit in 2007, and started using again in January 2010. Her drug of choice was methamphetamine.

E.M. (born
in 2005) told the social worker, “my mom is nicer to me now but she was not
nice before.” He explained that mother
“whopped [him]” on the hand with a belt when he got in trouble for not
listening. Asked if he would eventually
like to live with his mother, E.M. said “yes.”
In March 2010 E.M. was hospitalized as a danger to himself for running
into the street while the family lived in a homeless shelter. He was diagnosed with schizophrenia and
referred to mental health services, where the diagnosis was changed to
adjustment disorder with mixed disturbance of emotions and conduct.

A.M. (born
in 2004) appeared shy and uninterested in speaking to the social worker. He was unwilling or unable to say what he
liked or did not like about having lived with mother.

The
paternal grandfather told the social worker he cared for the minors between
August and October 2010. While in his
care, the minors often cried in their beds before going to sleep, telling him
they wanted to live with their mother.
He was previously approved for voluntary placement, but the minors were
removed from his care based on his 47-year-old criminal convictions. The paternal aunt reported that both children
adjusted well to placement in her home.

In November
2010 the juvenile court sustained the petitions and ordered services for
mother. In March 2011 the minors were
placed with the paternal grandfather and his live-in girlfriend.

According
to an April 2011 report, the minors appeared to be very comfortable and happy
in the paternal grandfather’s home. They
continuously expressed their desire to live at home with the paternal
grandfather and his girlfriend. The
minors were developmentally and academically on track. The minors attended counseling for one hour a
week to address grief and loss resulting from out-of-home placement and being
separated from mother.

Mother’s
visits with the minors were consistent and went smoothly. The children and mother were extremely happy
to see one another. E.M. stated he
really enjoyed the visits with mother.
A.M. hoped to live with mother again soon.

In June
2011 the social worker learned mother had numerous positive tests for
methamphetamine, missed several meetings with her recovery specialist, and
failed to attend any of her support groups.
In an August 2011 interview mother admitted she was still regularly
using methamphetamine.

The
paternal grandfather and his girlfriend were initially open to guardianship but
later indicated they were too old to provide the boys with the care they
needed. They asked DHHS to look for an
adoptive home that would consider allowing them to remain involved in the
minors’ lives as true grandparents. A
potential adoptive home was found in September 2011.

By the time
of the October 2011 status review report the minors had successfully completed
counseling, having been discharged from treatment in August 2011. They had no behavioral issues, and the report
recommended moving them to an adoptive home with a permanent plan of adoption
and termination of parental rights. The
juvenile court adopted the findings set forth in the report and, on October 17,
2011, terminated services and set a section 366.26 hearing.

In the
February 2012 selection and implementation report, DHHS reported mother’s
visits had been reduced to twice a month.
Visits continued to be appropriate and the minors looked forward to
them. The minors also had phone contact
with mother once or twice a week.

E.M. was
developmentally on track but had frequent and intense tantrums when he did not
get his way. A.M. was also on track
developmentally but frequently expressed guilt over not being with mother to
care for her. He would become irritable
or withdrawn when his requests that mother visit the caretakers’ home were
denied. A.M. was either unwilling or
unable to accept that future contact with mother would be limited. He also demonstrated parentified behavior,
specifically trying to answer all questions and excusing or minimizing E.M.’s
behavioral problems. The minors’
problems were brought to their counselor’s attention.

The minors
were placed in home study with the prospective adoptive parents, a psychiatrist
serving in the armed forces and a stay-at-home mother. They were attached to the children but did
not feel they could effectively manage the minors’ behavioral problems. In addition, they stated the minors were
deeply connected with mother and the paternal grandfather, and any future
military-related moves would disrupt the minors’ relationship with those family
members.

The
paternal aunt was referred for possible adoptive placement. She had maintained a close relationship with
the minors since their birth and was willing to adopt them. While the minors were in the paternal
grandfather’s care, she provided respite care nearly every weekend and
maintained phone contact with them during the week.

The minors
were developmentally appropriate. The
social worker believed that their behavioral problems were likely related to
being placed with nonfamily members.

At hearings
in February and June 2012 the minors’ counsel asked DHHS to report on mother’s
visitation with the minors so counsel could better assess whether adoption or
guardianship was in the minors’ best interests.
The juvenile court continued the section 366.26 hearing to allow
DHHS to prepare an addendum report addressing the issue.

The June
2012 addendum report indicated the minors had been placed with the paternal
aunt. The paternal aunt joined with the
minors’ “previous caretakers” to celebrate Easter with the boys, displaying her
understanding of the relationships that were important to them. The minors had not displayed any significant
negative behaviors since the change of placement.

A second
addendum report addressed mother’s visits with the minors and the appropriate
permanent plan. Mother’s visits remained
consistent. Told the minors were being
moved to the paternal aunt, mother replied she was glad they were going to
family. Mother asked the boys for hugs,
and they responded eagerly. The minors
took a great deal of emotional responsibility toward mother; they became overly
worried about her when she spoke of her physical pain. The minors did not display any negative
behaviors when the most recent visit ended or when they returned to the
paternal aunt’s home. The social worker
found mother was appropriate at visits and the minors enjoyed them. DHHS recommended adoption as being in the
minors’ best interests.

No
witnesses were called at the section 366.26 hearing. The juvenile court terminated parental rights
and ordered a permanent plan of adoption.

DISCUSSION

Mother
contends the juvenile court erred in declining to apply the beneficial
parent/child relationship exception to adoption. We disagree.

At a
hearing under section 366.26, if the juvenile court finds by clear and
convincing evidence that a minor is likely to be adopted, the court must
terminate parental rights and order the minor placed for adoption unless “[t]he
court finds a compelling reason for determining that termination would be
detrimental” due to one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).)

The parent
has the burden of establishing an exception to termination of parental rights. (In re
Zachary G. (1999) 77 Cal.App.4th 799, 809.) “Because a section 366.26 hearing occurs only
after the court has repeatedly found the parent unable to meet the child’s
needs, it is only in an extraordinary case that preservation of the parent’s
rights will prevail over the Legislature’s preference for adoptive
placement.” (In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350 (Jasmine
D.).)

When the
juvenile court rejects an exception to adoption, we review the court’s finding
deferentially. (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315 [whether standard of review deemed
substantial evidence or abuse of discretion, broad deference to lower court
required]; Jasmine D., >supra, 78 Cal.App.4th at
p. 1351 [abuse of discretion]; In re Autumn H. (1994)
27 Cal.App.4th 567, 576 (Autumn H.)
[substantial evidence].)

Section
366.26, subdivision (c)(1)(B)(i) provides an exception to adoption when “[t]he
parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” However, a parent may not claim this
exception “simply by demonstrating some benefit to the child from a continued
relationship with the parent, or some detriment from termination of parental
rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The benefit to the child must promote “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.” (Autumn
H., supra, 27 Cal.App.4th at p. 575.)

Mother
relies on the minors’ initial reaction to their separation, when they cried
themselves to sleep after she voluntarily placed them in the paternal
grandfather’s care. She notes her visits
with the minors were consistent and “went very smoothly.” In addition, she points out that the six- and
12-month reports both related the minors’ continuing strong bond with mother,
as shown by E.M.’s statement that he really enjoyed the visits and A.M.’s hope
to live with her again. She asserts the
minors’ behavior deteriorated when visits were reduced and they were placed
with nonrelatives. Finally, she claims
that the statement from the former prospective adoptive parent, a psychiatrist,
that the minors had a strong bond with mother should be considered “very
similar to a bonding study in importance.”

While the
minors were distressed over their separation from mother, most of that took
place before the dependency, when mother voluntarily placed them with the
paternal grandfather. What difficulties
the minors had during the dependency were not substantial and were largely
resolved through counseling. While the
minors did display increased behavioral problems after visits were reduced, the
report concluded they were likely associated with placement with a nonrelative. This conclusion was vindicated when the minors’
behavior improved after placement with the paternal aunt. There is no indication that the statement
from the former prospective adoptive parent was intended as an expert opinion,
and the summary conclusion expressed by him in no way resembled a bonding
study. Finally, the minors showed no
negative behaviors following the conclusion of the last visit with mother.

The minors
were placed with a person whom they have known their entire lives, the paternal
aunt. The paternal aunt in turn has
demonstrated a commitment to maintain the minors’ contact with another
significant person in their lives, the paternal grandfather. While the minors loved their mother very
much, mother did not carry her burden of showing that the minors would be
greatly harmed by severing the parent/child relationship.href="#_ftn1" name="_ftnref1" title="">[1] Mother has shown no error in the juvenile
court’s ruling on the beneficial parent/child relationship exception to
terminating parental rights.href="#_ftn2"
name="_ftnref2" title="">[2]

DISPOSITION

The
judgments (orders) are affirmed.





RAYE ,
P. J.



We concur:





BUTZ , J.





MAURO , J.