In re H.B.
Filed 2/7/13 In re H.B. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re H.B.,
a Person Coming Under the Juvenile Court Law.
SONOMA COUNTY HUMAN SERVICES
DEPARTMENT,
Plaintiff and Respondent,
v.
C.C.,
Defendant and Appellant.
A135441
(Sonoma County
Super. Ct. No. 3443DEP)
C.C.
(mother) appeals an order of the juvenile court, following a hearing under
Welfare and Institutions Code section 366.26,
terminating mother’s parental rights with respect to her infant daughter, H.B.,
and selecting adoption as the permanent plan. Mother contends the court erred
in finding that adoption is not precluded by the parent-child relationship
exception to the presumption favoring adoption. We conclude that substantial
evidence supports the court’s finding and shall therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On
September 24, 2010, the
County Human Services Department (the department) filed a juvenile
dependency petition, alleging that the 20-year-old mother’s history of
substance abuse rendered her unable to provide adequate care to six-month-old
H.B. (§ 300, subd. (b).) The petition alleges that mother’s addiction to
Vicodin resulted in general neglect of H.B. Instances of neglect included
falling asleep midday, leaving H.B. unattended on a couch, failing to
refrigerate bottles, causing the child’s milk to curdle and spoil, and missing
H.B.’s medical appointments. On September 27, 2010, the court found there were
no reasonable means to protect H.B. without removing her from the parent’s
custody and ordered H.B. temporarily detained. One month later, the court
declared H.B. a dependent and ordered reunification
services for mother.
The
court conducted a three-month review hearing on February 17, 2011. The social
worker reported that mother had been expelled from two residential drug
programs for failing to comply with the protocols for each program. Between
November 2010 and February 2011, mother tested positive for methamphetamine on
three occasions. The court concluded the hearing stating that “breaking curfewâ€
and “using drugs†does not reflect “somebody who’s ready to be a mother.â€
During this period H.B. was placed into a fost-adopt home in Sonoma County and
was doing well there. The social worker reported that H.B. is “healthy†and
“has made significant progress in the past few months in all areas of her
development.â€
Prior
to the six-month review hearing on July 25, 2011, the social worker submitted a
report concluding that “mother has failed to successfully demonstrate the
capacity to maintain her ongoing recovery and a healthy environment for her
daughter†and recommending the termination of family reunification services.
The court terminated reunification services and, at mother’s request,
authorized a “bonding†study between H.B. and herself., and between H.B. and
her foster parents.
The
social worker’s report submitted in preparation for the section 366.26 hearing
stated that H.B. was “likely to be adopted†and recommended termination of
parental rights. The social worker noted that H.B. “appears to be developing a
bond with the potential adoptive parents. . . . She is beginning to
see them as her psychological parents who are meeting all of her needs.†The
social worker explained that H.B. “would benefit from the establishment of a
permanent parent/child relationship through adoption†and that “[r]emoval from
the current home would be detrimental to the child’s well being.†The report
concluded that the parent-child relationship exception did not apply under the
circumstances.
A
contested section 366.26 hearing took place on March 27, 2012. At the hearing,
the parties stipulated to H.B.’s adoptability. In response to the department’s
recommendation, mother asserted the beneficial parent-child relationship
exception to adoption. The court found “by clear and convincing
evidence—indeed, by stipulation—that it is likely [H.B.] will be adopted. The
court further [found] that termination of parental rights would not be
detrimental to [H.B.]. The plan of adoption is appropriate and is ordered as
the permanent plan. There is sufficient basis for termination of parental
rights . . . and [H.B.] shall be freed for adoption.†The court
explained that “there was contact, that mother did consistently visit†the
minor, but that this contact does not “[outweigh] the need for stability and
continuity. Given that, the court finds that the plan of adoption is the best
to provide long-term stability and security for [H.B.].â€
Mother
has filed a timely notice of appeal.
DISCUSSION
Mother
contends the juvenile court erred in finding that her relationship with H.B.
did not invoke the parent-child relationship exception to adoption set forth in
section 366.26, subdivision (c)(1)(B)(i). We cannot agree.
Section
366.26, subdivision (c)(1), provides that “[i]f the court determines
. . . by a clear and convincing standard, that it is likely the child
will be adopted, the court shall terminate parental rights and order the child
placed for adoption.†The presumption is in favor of adoption. The court “shall
terminate parental rights†unless one of the exceptions applies. (
(c)(1)(B)(i) provides one such exception. It states that parental rights shall
not be terminated if “[t]he court finds a compelling reason for determining
that termination would be detrimental to the child due to one or more of the
following circumstances: [¶] (i) [t]he parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.†(Ibid.)
If the court finds that a child is likely to be adopted, “the burden shifts to
the parent to show the termination of parental rights would be detrimental to
the child under one of the exceptions listed in section 366.26, subdivision
(c)(1).†(In re S.B. (2008) 164
Cal.App.4th 289, 297.) In this case, the parties stipulated to H.B.’s
likelihood of being adopted. (§ 366.26, subd. (c)(1).) Therefore, it
was mother’s burden to prove that section 366.26, subdivision (c)(1)(B)(i),
applies to her relationship with H.B.
The
substantial evidence standard of review applies to an order rejecting
application of a statutory exception to the presumptive preference for
adoption. (See In re Michael G.
(2012) 203 Cal.App.4th 580, 589 [the reviewing court must affirm the juvenile
court’s rejection if the ruling is supported by substantial evidence];
567, 576 [substantial evidence supports the order terminating defendant’s
parental rights].)
title="">[2] “On
review of the sufficiency of the evidence, we presume in favor of the order,
considering the evidence in the light most favorable to the prevailing party,
giving the prevailing party the benefit of every reasonable inference and
resolving all conflicts in support of the order.†(In re Autumn H., supra, at p. 576.)
Under
the first prong of section 366.26, subdivision (c)(1)(B)(i), the parent must
prove that she maintained “regular visitation and contact with the child.†(§
366.26, subd. (c)(1)(B)(i).) The juvenile court found that “there was
contact, that mother [had] consistently visit[ed]†H.B. and the parties do not
contest this finding. The second prong of section 366.26, subdivision
(c)(1)(B)(i) requires that “the child would benefit from continuing the
relationship.†Courts have interpreted this requirement to mean that “the
relationship [between the parent and child] 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. 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.†(In re Autumn H.,
“parental relationship is necessary
for the exception to apply, not merely a friendly or familiar one.†(
1339, 1350.)
Mother
testified that she consistently visited H.B. throughout the dependency period.
The two ate, read, and played together. H.B. called her “[m]ama.†Her
interactions with H.B. were positive as she was “attentive and presented with
excitement.†Mother states she encouraged H.B. to learn the names of animals,
mimic noises, and brought to her visits age-appropriate toys and snacks. She
claims her bond with H.B. was evident as H.B. was always “very content to sit
in her lap.†Mother does not dispute that H.B. has developed a bond with her
adoptive parents but argues that the child’s bond with them is “no greaterâ€
than the bond between her and H.B.
Despite
mother’s evidence of a congenial relationship, there was substantial evidence
tending to show that mother’s bond with the child was not as strong as she
suggests. The social worker testified that H.B. “push[ed] [mother] away†when
mother made attempts to hug and kiss her. Throughout the dependency period,
H.B. did not establish “eye contact†with mother and consistently failed to
reciprocate demonstrations of affection. Although mother interpreted H.B.
sitting in her lap as a sign of love and comfort, H.B. sought the lap of
complete strangers. Moreover, the psychologist found that H.B. “seemed to have
very little interest in interacting [with mother].†The psychologist noted that
H.B. “is noticeably more interactive and engaged and emotionally present [when
she is with her potential adoptive parents] than she was observed to be with
her mom.â€
The
evidence supports the court’s finding that the relationship between H.B. and
mother is not the strong and beneficial parent-child relationship envisioned by
the adoption exception. (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) At the time of the section 366.26
hearing, H.B. was a little over two years old. Therefore, H.B. was possibly too
young to “understand the concept of a biological parent.†(In re Angel B. (2002) 97 Cal.App.4th 454, 467 [the court deemed a
two-year old to be too young to understand the difference between biological
and adoptive parents].) Furthermore, H.B. spent only the first six months of
her life with mother. Of those six months, H.B.’s grandmother provided some of
the care for H.B. as mother had difficulty caring for the baby and often
responded in a non-nurturing way. The bonding study obtained at mother’s request
concludes that “a secure attachment did not develop in the early months of
[H.B.’s] life.†The study notes that H.B. does not mind leaving mother when her
visits are over and often looks to the door, anticipating the arrival of her
potential adoptive parent. Although the visits between H.B. and mother were
pleasant, “the exception does not permit a parent who has failed to reunify
with an adoptable child to derail an adoption by showing the child would derive
some benefit from continuing a relationship maintained during periods of
visitation with the parent.†(In re
Jasmine D., supra, 78 Cal.App.4th at p. 1348.)
As
the social worker observed, H.B. currently “spends all of her time in the care
of either one of the potential adoptive parents.†She is “developing
significant emotional ties to the potential adoptive parents. She seeks out
both parents and loves to be held while one of the parents reads her favorite
storybooks to her.†She is beginning to see them as her psychological parents
who are meeting all of her needs. When H.B. cried and became restless after
visits with mother, she often exhibited “very needy, clingy behavior toward the
potential adoptive parents.†The department concluded that if the relationship
between H.B. and her adoptive parents was severed, such action would be
“detrimental to the child.†Substantial evidence thus supports the court’s
finding that mother does not have a sufficiently strong parent-child
relationship 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.†(In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) The juvenile court reasonably found
that the benefit that H.B. would receive from preserving the parental
relationship with mother does not outweigh “the need for stability and
continuity.â€
The
evidence was uncontradicted that H.B.’s potential adoptive parents have created
a stable environment for H.B. They have implemented schedules and routines in
order for H.B. “to gain a better sense of regulation.†A child “has a
compelling right ‘to [have] a placement that is stable, permanent, and that
allows the caretaker to make a full emotional commitment to the child.’ â€
(In re Jasmine D., supra, 78
Cal.App.4th at p. 1348.) The juvenile court reasonably concluded that “the
plan of adoption is the best to provide long-term stability and security for
[H.B.].â€
DISPOSITION
The
order is affirmed.
_________________________
Pollak,
Acting P.J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1]
All further section references are to the Welfare and Institutions Code except
as noted.
Mother refers to an alternative standard of review articulated in
1528-1529. In that case, the court found that “where the issue on appeal turns
on a failure of proof at trial, the question for a reviewing court becomes
whether the evidence compels a finding in favor of the appellant as a matter of
law. [Citations.] Specifically, the question becomes whether the appellant’s
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for judicial determination that it was
insufficient to support a finding.’ †(Id.
at p. 1528.) This standard applies at most if the parent’s evidence in
support of the exception is uncontradicted, which is not the case here. In all
events, the result in the present case would be the same under either standard.
