In re H.M.
Filed 1/3/14 In
re H.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re H.M. et
al., Persons Coming Under the Juvenile Court Law.
STANISLAUS
COUNTY COMMUNITY SERVICES AGENCY,
Plaintiff and Respondent,
v.
K.C.,
Defendant and Appellant.
F067284
(Super. Ct. Nos. 516080 & 516081)
THE COURT
APPEAL
from a judgment of the Superior Court of
Stanislaus County. Ann Q. Ameral,
Judge.
Jesse
F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
John
P. Doering, County Counsel, and Carrie
M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
K.C. (mother)
appeals from an order terminating
Inst. Code,
title="">
finding no beneficial parent-child
or sibling relationship existed to prevent termination of her parental
rights. We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
In August 2010,
the Stanislaus County Community Services Agency (agency) received a referral
that mother used methamphetamine in front of her then 16-year-old daughter
C.C.,
title="">[2] six-year-old H.M., and
five-year-old E.F. The referral further
alleged that mother was not paying rent or utilities, she had not purchased
food for the home, she was a hoarder, and the children were filthy due to lack
of bathing. The agency took custody of
the three children and initiated dependency
proceedings in April 2011, after mother failed to engage in the voluntary
family maintenance services offered by the agency. At this time, the boysʼ father was
deceased and, C.C.ʼs father did not have room for her in his residence and
agreed to her being placed in foster care.
In May 2011, the
juvenile court exercised jurisdiction over the boys pursuant to section 300,
subdivision (b), finding true allegations that mother—a longtime
methamphetamine user with a child welfare history—was not compliant with her
voluntary family maintenance case plan, did not maintain a safe and hazard-free
home for the children, and failed to enroll the children in school. Mother also neglected the childrenʼs
hygiene and failed to provide them with adequate medical and dental care, as a
result of which the boys suffered from severe body odor and rotting teeth. The boys were placed together in a foster
home and mother was offered reunification services. C.C. was initially placed in the same home as
the boys but was moved to another placement in early November 2011.
At the time of
the 6-month and 12-month review hearings, mother was visiting the boys
regularly and consistently. In his
reports, the social worker assigned to the case commended motherʼs
diligent efforts to complete her case plan and noted the existence of a strong
bond between mother and her children.
By the time of
the 18-month review hearing, however, the social worker was recommending that
the juvenile court terminate motherʼs reunification services and set a
section 366.26 hearing. In late
September 2012, the social worker reported mother had relapsed twice and it had
become apparent that, without a structured drug and alcohol program in which
she was consistently monitored, she would continue to struggle with drug
addiction and relapses. The social
worker concluded there was no reasonable expectation mother would be able to
resolve the issues that led to the boysʼ removal even if she were provided
additional services.
In the September
2012 report, the social worker further noted that mother continued to be
consistent in attending supervised visits at least once a week at the agencyʼs
office and he had “no doubt†mother had “a strong bond†with her children.
In early
December 2012, the social worker filed a report reflecting that, beginning on
October 9, mother missed six of approximately 10 scheduled supervised visits
with the boys. The boysʼ foster
parents (the prospective adoptive parents), with whom the boys were placed in
August 2012, reported that mother had become inconsistent in her telephone
calls to the boys and had been leaving visits early. In addition, mother had failed to attend any
of the boysʼ school conferences or medical appointments.
At the
conclusion of the 18-month review hearing on December 19, 2012, the juvenile
court terminated motherʼs reunification services and set a section 366.26
hearing. The court suspended motherʼs
educational rights and assigned them to the boysʼ foster parents. The court also ordered a bonding study to
assess the quality of the bond between mother and the boys.
The bonding
study, dated April 8, 2013, was conducted by licensed psychologist Cheryl
Carmichael, Ph.D. In conducting the
study, Dr. Carmichael interviewed mother on February 4, 2013. In Dr. Carmichaelʼs opinion, mother had
no insight into how her behavior might have a negative effect on the boys. Mother claimed neither of the boys had
benefited from their current placement.
Mother was angry about the surgical removal of the boysʼ teeth,
claiming a doctor had told her the level of rot was not a problem. Mother believed the boys should be returned
to her immediately for their own good and stated she might “die†if they were
not.
Dr. Carmichael
interviewed the boysʼ foster parents on February 5, 2013. They reported that when the boys first came
to their family, they lacked social skills and exhibited immature behavior,
poor sleeping habits, and complete disregard for any organization or
boundaries. The boys also suffered from
swollen and bleeding gums, rotten teeth, and a great deal of pain. One of the first things the foster parents
did was take the boys for a dental consultation, a consequence of which the
boys had dental surgery under general anesthesia in September 2012.
According to the
foster parents, the boys had adjusted well to living within their family. The boys were developing better manners,
lashed out less frequently, and sought out the adults for attention and
affection. They were also more
cooperative and worked better with the other children in the home. Because they had significant educational
needs, the boys needed and received more adult attention within the
family. Because the other children in
the household were independent and stable, there was no fight for attention.
The foster
parents reported that the boys looked forward to visits with mother and sister
C.C. The boys had a connection with
mother. They liked her and enjoyed
playing with her. But the boys looked to
their foster parents for support for school, social activities, and
problems. The boys did not notice or
were only momentarily irritated by motherʼs inconsistent phone calls and
visits. They had no problem leaving
visits with mother and transitioning back to their lives with their foster
family.
On February 20,
2013, Dr. Carmichael observed a supervised visit at the agency between mother,
C.C., and the boys. The visit occurred
outdoors in a play area. Dr. Carmichael
described it as “a delightful playtime with all four of them interacting†until
H.M. lost his glasses. Dr. Carmichael
explained:
“[Mother] became upset, demanded play
stop to search for the glasses in the lawn.
It took the boys a few seconds to react to her intensity but their
reaction was clear. They stopped and
both looked very frightened.… The
glasses were found and they were broken.
[Motherʼs] reaction was negative and [she] chastised the boys that
she would be in trouble because the glasses were broken.…â€
After the
incident of the broken glasses, mother took the boys to a picnic table where
the boys continued to play, running and climbing on the table. Mother tried to get the boys to finish a
snack and calm down, but they were not very responsive. Soon the foster mother arrived with her
son. The boys immediately engaged their
foster brother and ran to a play structure, while mother and the foster mother
discussed the broken glasses. Shortly
thereafter, the boys and their foster brother “piled in the waiting car and
took off with nary a glance backwards.â€
On March 26,
2013, Dr. Carmichael observed the boys with their foster parents at her
office. In the waiting room, the boys
played quietly on the floor or brought books to their foster father to
read. The boys immediately cleaned up
and came to the psychologistʼs office when called. The boysʼ interaction with their foster
parents was entirely different from their interaction with mother. They answered questions, asked for help,
asked permission to play with toys, and laughed with each other and the adults.
The boys were physically affectionate
and enthusiastic about their lives with their foster parents. The foster family had exposed the boys to
many leisure activities that were perfect for their interests and development.
Dr. Carmichael
concluded that, while mother and the boys did have a bond, their relationship
was “best characterized as playmates.â€
Dr. Carmichael observed the boys enjoyed playing with mother during
visits but did “not respond to her efforts to guide them, calm them, [and] feed
them.†Instead, the boys would “ignore
her or look scared.†On the other hand,
the boys responded to their foster parents and foster brother “with ease,
cooperation and affection†and looked to their foster parents for “attention,
care, direction, and guidance.â€
Dr. Carmichael
observed that the boys had “ongoing educational and behavioral needs†which
were being addressed by the foster parents.
The foster parents “work[ed] closely with educators, medical
professionals and counselors to help the boys catch up and maximize their
potential.†In contrast, mother had “vehemently
disagreed with the medical and dental interventions, was invited to all school
meetings but did not attend and is unfamiliar with the known educational needs
and progress of her children.â€
Dr. Carmichael
concluded it was in the boysʼ best interests for them to be adopted by
their current foster parents and “there would be no or limited detriment to the
boys i[f] their visits with their mother were terminated.â€
The agencyʼs
report for the section 366.26 hearing indicated that, since the 18-month review
hearing, mother had been consistent in coming to the agencyʼs office for
her twice monthly visits. During the
visits, the boys had also been able to visit with their sister C.C.
The social
worker concluded it was in the boysʼ best interest to terminate parental
rights, noting mother had relapsed twice in her drug treatment programs,
continued to indulge in drugs, and failed to take responsibility for having the
boys seen by medical, dental, and vision professionals. The social worker observed the boys were now
happier and having all their needs addressed by the foster parents.
The delivered
services log attached to the report reflected that, on March 20, 2013, the
foster parents informed the social worker that mother spoke with the boys on
the telephone every day. During their
conversations, mother would tell the boys they would be coming home and that it
was the social workerʼs fault they were not with her. As a result, the boys did not like the social
worker.
On May 6, 2013,
the section 366.26 hearing commenced.
During the hearing, motherʼs counsel examined H.M. in chambers.
mother, liked his visits with her, and wished he could live with her. During visits, he played with mother and
talked to her about how he was doing well in school. He would feel sad if he could never see mother
again and agreed he wanted to continue visiting with her.
H.M. liked
living with his foster family. They let
him talk on the phone with mother every day and he looked forward to those
phone calls. H.M. also got to see his
big sister, C.C., when he visited mother.
He felt sad about C.C. because he wanted to see her more often. He would play soccer with C.C. during
visits. He would feel sad if he could
not see C.C. anymore.
Although he
liked where he was living, H.M. did not want to stay there. However, he was not sure why he did not want
to stay there. They were nice to him. If he had to stay there, he would like to
continue visiting mother and C.C. and talking to them on the phone. He loved his mother and sister and felt sad
when he thought about not seeing them anymore.
C.C. testified
that she went with mother to visit the boys every other week. During visits, they had snacks and would go
outside and play. The boys were
affectionate towards C.C. and mother during visits. They would ask C.C. for help during visits,
including asking her to take them to the bathroom or move objects around the
play area. At various times, C.C. had
heard both boys say they wanted to go home with mother. The boys would mope and have sad expressions
at the end of visits. However, it also
seemed the boys had started “to get a bit more distant†now that they were not
visiting or communicating as much.
C.C. testified
that mother always interacted with the boys during visits. They played a lot together and she would ask
them about school and their after-school activities like karate class and
soccer. During visits, mother set rules
the boys would follow and occasionally put them in a “time out†if they did not
listen to her.
C.C. wanted an
opportunity to maintain her sibling relationship with the boys. She believed it would likely “devastate†the
boys if they were not able to see her and mother. It has been getting harder and harder for the
boys to leave them at the end of visits.
Mother testified
she was close to the boys and had a good relationship with them. On visits, she would bring snacks and
activities and they would all play together.
Mother would ask the boys about school and their after-school
activities. She praised the boys when
she learned from their foster mother they were doing well in school. She also attended an “IEP meeting†and school
events at the end of the previous school year when the boys were in
kindergarten. The boys were affectionate
towards her during visits and looked sad when the visits ended.
Mother talked to
the boys every day on the phone. Lately,
it seemed like E.F. was “shutting himself off.â€
He would just make a few statements, including that he loved her, and
then give the phone back to the foster mother.
H.M. would sometimes tell mother about problems he was having in his
daily life. For example, H.M. had a
bully at school, and mother told him to tell his teacher. When mother inquired about it later, H.M.
told her he had told his teacher and the bullying had stopped.
Mother believed
it would be detrimental to the boys to terminate her relationship with them
because their father had died recently, and it would be difficult to lose their
mother right after that.
After listening
to closing arguments on May 9, 2013, the juvenile court adopted the
agencyʼs recommendations and terminated parental rights.
DISCUSSION
Mother contends
the juvenile court erred when it terminated her parental rights to the
boys. Specifically, she challenges the
sufficiency of the evidence to support the juvenile court’s findings that the
beneficial parent-child relationship exception and the sibling relationship
exception to adoption and termination of parental rights did not apply. We disagree and affirm.
Section 366.26,
subdivision (c)(1)(B) acknowledges termination may be detrimental to a
dependent child under specifically designated and compelling
circumstances. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) One of those
circumstances is when a parent has maintained regular visitation and contact
and the child would benefit from continuing the relationship to such a degree
that the child would be greatly harmed by termination. (§ 366.26, subd. (c)(1)(B)(i);
567, 575 (Autumn H.); “beneficial relationship
exception.â€) Another of those
exceptional circumstances is where termination would cause a substantial
interference with the sibling relationship.
If so, the trial court must consider the nature of the sibling
relationship and go on to balance any benefit, emotional or otherwise, the
child would obtain from ongoing contact with the sibling against the benefit of
legal permanence the child would obtain through adoption. (§ 366.26, subd. (c)(1)(B)(v); see
949; “sibling relationship exception.â€.)
A finding that
termination would not be detrimental, however, is not a prerequisite to the
termination of parental rights. (
1339, 1347.) The statutory presumption
is that termination and permanency through adoption is in the child’s best
interests and therefore not detrimental.
(§ 366.26, subd. (b); In re
Lorenzo C. (1997) 54 Cal.App.4th
1330, 1343-1344.) A party opposed to
termination bears the burden of showing that termination would be detrimental
under one of the statutory exceptions. (
799, 809.)
In its ruling
terminating parental rights, the juvenile court expressly found the beneficial
parent-child relationship and sibling relationship exceptions to termination of
parental rights and adoption did not apply.
Under any standard of review, the courtʼs finding is proper because
mother did not meet her heavy burden of establishing that termination of her
rights would be detrimental to the boys.
(Celine R.,
parent-child relationship or a sibling relationship, the courtʼs analysis
of a detriment claim does not stop there.
Mother must also show that a continued parent-child or sibling
relationship is so beneficial to the boys that at least one of those
relationships outweighs the benefits the boys would receive through a permanent
plan of adoption. (In re L.Y.L., supra, 101
Cal.App.4th at p. 949; Autumn H.,
In this case,
there was no evidence that the boys would benefit from continuing the
parent-child or sibling relationship to such a degree that it would outweigh
the benefits to them of being adopted.
Mother claims this weighing process is problematic because the benefits
of adoption cannot be measured while “[n]umerous psychological studies show
that under circumstances where there is at least one surviving parent adoption
carries with it lifelong scars, and feelings of abandonment.†Her argument ignores the law. Children have compelling rights to a
placement that is stable, permanent, and allows the caretaker to make a full
emotional commitment to the child. (
306.)
In this case,
the benefits of adoption were readily apparent.
The boys had significant needs (behavioral, dental, educational, etc.),
due to motherʼs severe neglect, which the prospective adoptive parents
immediately set about addressing with positive results. Further support for the juvenile courtʼs
findings was provided by the April 2013 bonding study, which concluded that
adoption and termination of parental rights was in the boysʼ best
interests. Mother challenges the sufficiency of the
bonding study on the grounds Dr. Carmichael only observed the boys interact
with mother and C.C. for a short period of time, and failed to obtain
information about the boysʼ feelings about mother, including how they felt
about not seeing her again. Motherʼs
criticisms of the bonding study amount to nothing more than an invitation for
this court to reweigh the bonding studyʼs worth in the decisionmaking
process. That is not our function as a
reviewing court. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Motherʼs evidence failed to establish
that the benefit of continuing contact with her or the boysʼ sister, C.C.,
would outweigh the benefits of adoption.
Although visits with mother were loving and pleasant, there was also evidence mother engaged in self-centered and emotionally
manipulative behaviors, such as suggesting to the boys that they would be
returning to her custody even though she admittedly knew this was not the
case. In light of motherʼs defiant
attitude regarding these behaviors at the section 366.26 hearing, there is
reason to believe they would persist if she were permitted to have continuing
contact with the boys and that such behaviors would interfere with the boysʼ
ability to make a positive attachment with their caretakers. Moreover, the law does not support motherʼs
assertion that “[the boysʼ] sadness at the prospect of losing [their]
sister must be sufficient evidence of detriment under the sibling relationship
exception … such that it outweighs the benefit of adoption.†(See In
re L.Y.L., supra, 101 Cal.App.4th
at p. 952 [mother did not sustain her burden of proof that termination of
parental rights would substantially interfere with the sibling relationship
where there was no evidence the minor, other than being sad, would suffer
detriment if the relationship ended ].)
On this record,
there is no compelling evidence that ongoing parent-child or sibling contact
was in the boysʼ best interests so as to outweigh the benefit of
permanency they would gain through adoption.
We therefore conclude the juvenile court acted properly in rejecting
motherʼs arguments and terminating parental rights.
DISPOSITION
The order
terminating parental rights is affirmed.
name="_ftn1" title="">* Before Cornell, Acting P.J., Detjen, J. and Franson, J.
name="_ftn2" title="">[1] All statutory
references are to the Welfare and Institutions Code unless otherwise specified.
