In re Ezequiel M.
Filed 7/18/12 In re Ezequiel M. CA2/6
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opinion has not been certified for publication or ordered published for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 Ezequiel M., a Person Coming Under the Juvenile Court Law.
2d Juv. No. B238051
(Super. Ct.
No. J1379584)
(Santa Barbara
County)
CHILD
PROTECTIVE SERVICES,
Plaintiff and Respondent,
v.
CELESTE
M..
Defendant and Appellant.
Celeste M., mother
of two-year-old Ezequiel M., appeals
from the from the juvenile court's order denying her
Inst. Code, § 388)
name="_ftnref1" title="">[1]
and terminating her parental rights (§ 366.26). We affirm.
Facts and Procedural History
On October 16, 2010,
Barbara County Child Welfare Services (CWS) placed eleven-month-old
Ezequiel in protective custody after Lompoc Police responded to a domestic
violence call and found Ezequiel alone and unsupervised. Earlier that day, mother and Ezequeil's
father, Juan M., had a physical altercation and left the house. Mother reported that father hit her in the
face several times and threatened to kill her.
Father was arrested for domestic violence and deported. Mother was charged with child
endangerment.
CWS filed a
protect, serious emotional damage, and failure to support Ezequiel and his
half-brother Jesus C. (§ 300,
subds. (b), (c) & (g).) The petition
stated that CWS had received twelve referrals for neglect, emotional abuse, and
caretaker absence/incapacity. Ezequiel
was developmentally delayed, lacked muscle tone, was unable to touch his hands
together or hold his head up, and could not hold a baby bottle and feed
himself.
The trial court
sustained the petition, declared Ezequiel a dependent of the court, and ordered
reunification services and supervised
visits.
At the six-month review
hearing, CWS reported that mother suffered from chronic depression and
schizophrenia, was homeless and unemployed, and had not completed her case plan. Mother moved multiple times, had sporadic
employment, missed mental health and
therapy appointments, was not compliant with her medication, and was unable to
care for Ezequeil.
The trial court
terminated services and set the matter for a section 366.26 permanent placement
hearing.
Combined Section 388/366.26 Hearing
Before the hearing,
mother filed a section 388 petition to reinstate services. The petition alleged that mother had her own
apartment, was employed, and was compliant with mental health services.
CWS recommended that
parental rights be terminated and that Ezequeil be freed for adoption. Ezequeil was bonded to his foster parents who
were meeting his developmental and medical needs and wanted to adopt. Although Ezequiel was diagnosed with a mild
form of cerebral palsy, he was receiving physical therapy three times a week
and making substantial progress.
With respect to the 388
petition, the evidence showed that mother had injured herself at work, was
terminated, and was not looking for work.
Mother shared an apartment with her older daughter who was paying the
rent.
The trial court denied
the section 338 petition to reinstate services, found that Ezequeil was
adoptable, and terminated parental rights.
Section 388 Petition
Mother argues that the
trial court erred in denying her petition to reinstate services. The grant or denial of a section 388 petition
is committed to the sound discretion of the trial court and will not be
disturbed on appeal unless an abuse of discretion is clearly established. (In re Shirley K. (2006) 140
Cal.App.4th 65, 71.) The parent bears
the burden of showing both a change of circumstances and that modification of
the prior order would be in the child's best interests. (In re S.J. (2008) 167 Cal.App.4th
953, 959.) "After the termination
of reunification services, the parents' interest in the care, custody and
companionship of the child are no longer paramount. Rather, at this point, ' the focus shifts to
the needs of the child for permanency and stability [citation.]. . . ." (In
re Stephanie M. (1994) 7 Cal.4th 295, 317.)
Mother claims that she
is attending counseling, is taking her medication, and has obtained
housing. Substantial evidence supports
the finding of no significant change of circumstances. (See e.g., In re Casey D. (1999) 70
Cal.App.4th 38, 48-49.) Mother is
unemployed, has moved ten times in the last two years, and offered no credible
evidence that she has addressed her mental health issues and is able to care
for and support Ezequeil as a full-time parent.
Nor is reinstatement of
services in Ezequiel's best interest. (In
re Angel B. (2002) 97 Cal.App.4th 454, 465.) While under mother's care, Ezequeil was
neglected and exposed to extensive domestic violence. Mother failed to follow up on recommended
appointments to determine Ezequiel's medical needs. The same parenting problems existed at the
section 366.26 hearing. Mother never
asked about Ezequiel's medical diagnosis or therapy and lacked the training to
provide him a safe home.
During supervised
visits, mother force fed Ezequiel until he gagged and claimed he is too
"lazy to grasp his bottle."
When Mother tried to use a sippy cup instead of a bottle, "it was
even worse."
Mother
failed to follow basic feeding instructions, was not responsive to Ezequiel's
clues, and fed him until he threw up.
When Mother was reminded about food portion control, she fed Ezequeil
spoonfuls of food that were too big to chew or swallow.
At a June 21, 2011
supervised visit, mother tossed a ball that hit Ezequiel in the head, laughed,
and tossed the ball again at his head.
On another visit Mother changed Ezequiel's diaper and left the dirty
diaper within his reach where he kicked it and soiled his shoes. When the supervised visits were increased to
two hours a week, mother did not know what to do with Ezequiel and looked at
her cell phone to see how much time she had left.
The evidence clearly
shows that reinstating services would be detrimental to Ezequeil and undermine
the permanency and stability of an adoptive placement that he so badly
needs. A section 388 "petition
which alleges merely changing circumstances and would mean delaying the
selection of a permanent home for a child to see if a parent, who has
repeatedly failed to reunify with the child might be able to reunify at some
future point, does not promote stability for the child or the child's best
interests. [Citation.]" (In re
Casey D. (1999) 70 Cal.App.4th 38, 47.)
Section 366.26 Adoptability Finding
Mother argues that the
trial court abused its discretion in terminating parental rights and freeing
Ezequiel for adoption. An order
terminating parental rights will be affirmed where there is
likelihood of adoption. "[A]
prospective adoptive parent's willingness to adopt generally indicates the
minor is likely to be adopted within a reasonable time either by the
prospective adoptive parent or by some other family. [Citations.]" (In re Sarah M.
(1994) 22 Cal.App.4th 1641,1650.)
Mother claims that
Ezequiel is not adoptable because he suffers from a mild form of cerebral
palsy. Ezequiel, however, has responded
well to the therapy and is expected to progress to the point where he can live
without noticeable symptoms. CWS
reported that Ezequiel is mentally and emotionally stable, is closely bonded to
his foster parents, and has made significant progress.
Mother argues that a
child who requires long term medical care is at risk of becoming a legal orphan
if parental rights are terminated and the prospective adoptive family is later
found to be unsuitable. (See In re
Carl R. (2005) 128 Cal.App.4th 1051, 1062.)
"[A] finding of adoptability can nevertheless be upheld if a
prospective adoptive family has been identified as willing to adopt the child
and the evidence supports the conclusion that it is reasonably likely that the
child will in fact be adopted within a reasonable time. [Citations.]" (In re K.B. (2009) 173 Cal.App.4th
1275, 1292.)
Ezequiel has lived with
his fost-adopt parents for half his life and is happy and well adjusted in
their home. The family has adopted before, is fully aware of Ezequiel's medical
and emotional needs, and is committed to providing him a safe and stable
home. "[I]t is only common sense
that when there is a prospective adoptive home in which the child is already
living, and the only indications are that, if matters continue, the child will
be adopted into that home, adoptability is established. . . . [¶] Case law has also established
that adoptability may be satisfied by a general adoptability,
independent of whether there is a prospective adoptive family (as the term of
art goes) ' "waiting in the wings.'' '
[Citations.]" (In re Jayson T. (2002) 97 Cal.App.,4th 75,
85.)
Freeing Ezequiel for
adoption carries little risk that he will become a "legal
orphan." A child may file a section
388 petition to set aside an order terminating parental rights where the child
is not adopted within three years and the trial court determines the child is
no longer likely to be adopted and reinstatement of parental rights is in the
child's best interest. (§ 366.26,
subd. (i)(2); Cal. Juvenile Dependency Practice (Cont.Ed.Bar2011) § 8.50,
p. 666.)
Beneficial Parent-Child Relationship Exception
Mother finally asserts
that the beneficial parent-child relationship exception bars termination of her
parental rights. (§ 366.26, subd.
(c)(1)(B)(i).) Where the dependent child
is adoptable, the juvenile court must terminate parental rights at the section
366.26 hearing unless the parent shows that the parent-child bond is a
substantial positive emotional attachment such that the child would be greatly
harmed if parental rights were terminated. (In re Helen W. (2007) 150
Cal.App.4th 71, 81.) To meet that burden
of proof, a parent must show more than frequent or pleasant visits. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 229.)
The parent must show that he or she occupies a parental role in the
child's life, resulting in a significant, positive, emotional attachment from
child to parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In
re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
Ezequiel is two years
old and has spent more than half of his life with his fost-adopt parents to
which he is closely bonded. The trial
court reasonably concluded that mother's relationship with Ezequiel bears no
resemblance to the sort of consistent, daily nurturing that marks a parental
relationship. (See e.g., In re Derek W. (1999) 73 Cal.App.4th 823,
827.) The benefit, if any, of returning
Ezequeil to mother is far outweighed by the stability and care he has received
and will continue to receive from his fost-adopt parents.
We reject the argument
that the beneficial parental relationship applies. "The reality is that childhood is brief;
it does not wait until a parent rehabilitates himself or herself. The nurturing required must be given by
someone, at the time the child needs it, not when the parent is ready to give
it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The judgment (order
denying section 388 petition and terminating parental rights) is affirmed,
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Maureen L. Keaney, under
appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall,
County Counsel, County of Santa Barbara and Sarah A. McElhinney, Deputy County
for Respondent.
are to the Welfare and Institutions Code.
