In re Josiah H.
Filed 2/26/13 In re Josiah H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD APPELLATE DISTRICT
(Sacramento
----
In re JOSIAH H., a
Person Coming Under the Juvenile Court Law.
C071928
(Super. Ct. No.
JD231479)
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
CHRISTINA H.,
Defendant and Appellant.
Mother,
Christina H., appeals from the juvenile
court order terminating her parental rights to 22-month-old Josiah H. (the
minor). She contends the trial court
erred in finding that the beneficial
exception to adoption did not apply. We
shall affirm.
FACTUAL BACKGROUND
Two days
after he was born in April 2011, the minor was taken into protective custody
based on allegations mother had a
that impaired her ability to adequately protect and care for the minor and that
her parental rights to her four other children had previously been
terminated. The minor was placed in a
foster home with two of his half siblings.
He was declared a dependent of the juvenile
court and reunification services were ordered. As part of the effort to provide
reunification services to mother, a psychological evaluation was performed by psychologist
Sidney Nelson, Ph.D. Dr. Nelson
noted mother’s intellectual capabilities, abstract reasoning, conceptual
thinking, common sense reasoning, and social
judgment were substantially impaired; she functioned within the mild range
of mental retardation. These impairments
limited mother’s ability to learn, retain and utilize new information provided
in counseling or parenting classes.
Mother’s impairments were a significant, chronic and long-term condition,
not expected to change with the provision of services, and not conducive to
providing a safe home for a young child.
Accordingly, Nelson concluded mother would not be able to benefit
sufficiently from reunification
services to permit the minor to return safely to her custody.
Despite
Dr. Nelson’s reservations, mother participated in some services and regularly
visited with the minor twice a week. By
January 2012, mother had made some progress in services; however, she had not
completed her domestic violence classes and had not completed individual
counseling, becoming threatening to the therapist and refusing further
counseling. She completed the parenting
class, but upon testing, with significant assistance from the social worker,
she scored only 30 percent on the parent education survey. In parenting coaching with an infant, she was
incapable of responding to the baby’s cues, could not learn how much formula
was necessary to prepare a bottle, and forgot to secure the infant on a
changing table before walking away. The
social worker concluded mother could not benefit from additional parenting
coaching. The juvenile court found
mother had not made sufficient progress in reunification and it was unlikely
the minor could be returned to her within the six-month statutory time
frame. Accordingly, reunification
services were terminated and the matter was set for a Welfare and Institutions
Code section 366.26 hearing.
name="_ftnref1" title="">[1]
Originally,
mother had visits with the minor scheduled twice a week for one hour. Between April and November 2011, she missed
six visits. Upon termination of
reunification services, mother’s visits were reduced to twice a month in
February 2012 and then to once a month in May 2012. Mother’s visits were sporadic during this
period. She frequently failed to confirm
or follow through with scheduled visits.
When she did visit, the minor would look at her and play games. He generally reacted happily when he saw
mother.
The minor
was doing well, although he was slow meeting developmental milestones. He had some mild developmental delays of his
feeding abilities and poor endurance for eating, as well as physical
developmental delays. He was receiving
weekly therapy to address these delays, which required significant familial
involvement. He remained placed in the
foster home that had successfully adopted two of his older siblings and the
foster parents were committed to adopting him.
Emotionally and behaviorally, the minor was developing
appropriately. He preferred his foster
parents to other adults and was developing healthy emotional connections to
them, their children, and their extended circle of family and friends. His foster parents provided for his daily
needs and primary emotional connection.
At the
contested section 366.26 hearing, mother objected to the termination of her
parental rights. She claimed she had
maintained contact with the minor and it would be in his best interest not to
terminate her parental rights.
The court
found by clear and convincing evidence the minor was adoptable. The court noted although there were some
physical problems, they were not of such a scope so as to impede his
adoptability. The court found
termination of parental rights would not be detrimental to the minor. Accordingly, the beneficial relationship
exception to adoption did not apply.
Parental rights were terminated.
DISCUSSION
Adoption
must be selected as the permanent plan for an adoptable child and parental
rights must be terminated unless “[t]he court finds a compelling reason for
determining that termination would be detrimental to the child†due to an
enumerated exception to adoption.
(§ 366.26, subd. (c)(1)(B).)
One such exception to termination of parental rights is if “[t]he
parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i);
45, 53.) Mother contends the trial court
erred in not finding the beneficial parental relationship exception to adoption
applied. We disagree.
Initially,
there has been some disagreement in the appellate courts as to which standard
of review applies in reviewing a juvenile court’s determination regarding a
statutory exception to adoption. (See
189 Cal.App.4th 1308, 1315; In re
I.W. (2009) 180 Cal.App.4th 1517, 1527-1528.) Many courts have reviewed such findings for
substantial evidence, with a few courts utilizing an abuse of discretion
standard. (Compare, e.g.,
104 Cal.App.4th 247, 250-251, In re
L. Y. L. (2002) 101 Cal.App.4th 942, 947,
73 Cal.App.4th 823, 827 and In re
Autumn H. (1994) 27 Cal.App.4th 567, 576 with In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 and
136 Cal.App.4th 437, 449.) However,
as several courts have also noted, the practical differences between these
standards of review are not significant in the context of reviewing termination
orders, as each standard accords broad deference to the trial court's
judgment. (See, e.g.,
102, 123; In re Scott B. (2010)
188 Cal.App.4th 452, 469; In re
Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Because our conclusion in the present matter
would not change regardless which of these standards of review we applied, and
as addressing the issue here will not assist in resolving the split of
authority, we simply acknowledge the varying views and turn to the merits.
It is
mother’s burden to establish the beneficial relationship exception to adoption
applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) Mother contends she met the first prong of
the exception in that she maintained regular visitation and contact with the
minor. Although there is some evidence
mother was inconsistent in her visitation, we will assume mother satisfied this
prong of the test. However, she did not
meet the burden of establishing that she and the minor shared a beneficial
parent/child relationship such that termination of that relationship would be
detrimental to the minor.
A
beneficial relationship is one 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.†(
determined by considering a number of factors, including the age of the child,
the amount of time the child spent in the parent’s custody, the positive or
negative effect of interaction between the parent and the child, and the
child’s particular needs. (
103 Cal.App.4th 681, 689.) However,
neither a loving relationship (In re
Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation of some
benefit from continued parental contact (In
re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to establish
this exception.
Here, the
minor was 16 months old at the time of the section 366.26 hearing. He has never lived with mother. He was removed from her custody when he was
two days old and has spent all of his life with his foster family. The minor has some special needs which
require “attention and judgment skills,†as well as active participation by his
family in his counseling and therapy.
Mother does not have attention and judgment skills, and has a
significantly impaired ability to learn and utilize information provided in
counseling or classes. While the minor
was generally happy around mother, he preferred his foster parents to other
adults and his foster family provided for his daily needs and emotional
connection. His foster family had also
previously adopted two of the minor’s half siblings. Based on the record in this case, there was
no error in the juvenile court’s determination that the parental bond exception
to adoption did not apply.
DISPOSITION
The order
of the juvenile court is affirmed.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
