In re L.D.
Filed 2/27/12 In re L.D. CA4/1
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
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re L.D., a Person Coming
Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
D.D. et al.,
Defendants and Appellants.
D060082
(Super. Ct.
No. J517572)
APPEALS
from orders of the Superior Court
of
County, Carol Isackson, Judge.
Affirmed.
D.D. and
Nathaniel K. appeal orders terminating their
referring the case for adoption.
Nathaniel contends the court abused its discretion by not continuing the
Welfare and Institutions Code
name="_ftnref1" title="">[1] section
366.26 hearing to allow his counsel to receive discovery and to have additional
time to prepare for trial. He also
asserts that if D.D.'s appeal is successful, the order terminating his parental
rights must also be reversed. D.D.,
joined by Nathaniel, asserts the court erred by terminating parental rights
because there was not substantial evidence presented to support finding L.D. is
an adoptable child, and the evidence showed she has a beneficial parent-child
relationship with L.D. within the meaning of section 366.26, subdivision
(c)(1)(B)(i), to preclude terminating parental
rights. We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
L.D. became
a dependent child of the Los Angeles County juvenile court in December 2008
when he was seven years old based on allegations he was at substantial risk
because D.D. suffered from mental
and emotional problems, including having delusions; she believed several
people had sexually abused L.D.; her use of marijuana made her unable to
provide adequate care; and Nathaniel had not provided for him.
D.D.
reported numerous people had molested L.D., and there was a conspiracy to cover
up the abuse. She admitted smoking
marijuana every day and said she did this for religious and medical purposes. She denied having mental health issues
although she had been diagnosed with a psychotic disorder in 2007.
D.D. moved
to San Diego and in August 2009,
the case was transferred to San Diego
County. D.D. participated in some services, but did
not visit L.D. regularly and sometimes made inappropriate comments to him. The psychologist who evaluated her provided a
provisional diagnosis of delusional disorder, persecutory type. At the 12-month hearing in January 2010, the
court found there was no substantial probability of return to parental custody
by the 18-month date. It terminated
services and set a section 366.26 hearing.
That same month D.D. gave birth to her fourth child, N.D. At the time of N.D.'s birth, N.D. and D.D.
tested positive for marijuana.
The social
worker assessed L.D. as adoptable. He
had many admirable qualities and there were approved adoptive families
interested in adopting a child with his characteristics. D.D.'s visitation had been inconsistent, she
had not participated in drug treatment or sexual abuse treatment and she denied
having mental health problems. L.D.
enjoyed his visits with D.D. and she brought him toys, food and clothing. At times he did not want the visits to
end. L.D. said he wanted to live with
D.D., but also wanted a permanent home and understood she was working on her
own issues.
D.D.
petitioned under section 388, requesting L.D. be placed with her. At the October 2010 section 366.26 hearing
and a hearing on her petition, D.D. testified she had been in counseling and
had stopped using marijuana, but she continued to believe L.D. had been
molested by several men as part of a conspiracy. The psychologist who conducted a bonding
study testified L.D. and D.D. have a moderate bond, and he would suffer damage
from severing the bond. D.D.'s therapist
said therapy had helped D.D., but her underlying paranoia makes her suspicious
and guarded and she will likely continue to believe L.D. was molested. The social worker recommended adoption as the
permanent plan, but said she wanted to identify a specific family before she
would recommend terminating parental rights.
The court
denied D.D.'s section 388 petition. It
found L.D. is an adoptable child, he would not be greatly harmed by termination
of parental rights, and the benefits of continuing the parent-child
relationship would not outweigh the benefits he would gain from adoption. The court identified adoption as the
permanent placement goal, but found L.D. was a difficult to place child and
ordered efforts be made to locate an appropriate adoptive family within 180
days.
D.D.
appealed. This court affirmed the
orders, holding the court did not abuse its discretion by denying the section
388 petition, and substantial evidence supported the finding the beneficial
parent-child relationship exception did not apply. (In re
L.D. (June 16, 2011,
D058751) [nonpub. opn.].)
Subsequent
reports on L.D.'s status included a
affected by his history of neglect, his emotional and psychological function
was within normal range. The
psychologist recommended he be adopted into a home that would provide
nurturance, consistency and structure.
L.D.'s therapist said L.D. was making good progress, he was fine with
adoption and understood what it meant, but L.D. did not want to hurt D.D.'s
feelings or let her know that he and the therapist had completed an adoption
packet.
L.D.'s
court appointed special advocate (CASA) said L.D. is charismatic and a joy to
be around. She reported L.D. told her he
loved D.D. and sometimes said he wanted to be with her, but he also wanted the
stability of a permanent home and family.
The CASA said at visits D.D. had to be continually reminded not to
discuss the case with L.D.
By March
2011, L.D. was ten years old. At a
hearing on March 11, he told the court, "[t]he important thing I really
want to tell you is I really want to go back to my mom." L.D. said he wanted to be with someone he
knew. When the court asked him if he was
feeling ambivalent about being adopted or going back to D.D., L.D. agreed that
was what he was feeling. The court
assured him it was court's responsibility, not L.D.'s, to select a permanent
plan. The court stated, "If we hurt
anybody's feelings, it's going to be my decision that hurts those feelings or
not." The social worker said L.D.
appeared relieved to hear this statement.
A
prospective adoptive family was located for L.D. in San Jose and he began
visiting this family. He happily sat
between them at their first meeting, and after their first visit said he had a
wonderful time and was excited about visiting them again. He told his CASA they were trustworthy, but
he continued to have mixed feelings about adoption. He said he loved D.D. and worried about
hurting her feelings.
L.D. and
D.D. continued their supervised visits.
He enjoyed seeing her, but she often discussed the case with him and
spent much of the time talking with the visitation monitor instead of with L.D. L.D.'s teacher said L.D. sometimes became
emotional and cried before and after visits with D.D., and his worries about
his situation was affecting his ability to function in school. At one visit L.D. had a panic attack. D.D. had discussed the case in his presence,
he was having trouble with his math homework, and L.D. was on the other side of
the room talking with the visitation monitor and dealing with N.D. After a play set scraped across the floor,
L.D. began screaming and crying and hyperventilated. D.D. held and rocked him until he calmed
down.
In April
2011, Nathaniel made his first court appearance. He and D.D. both filed section 388
petitions. The court granted an
evidentiary hearing on D.D.'s petition, but summarily denied Nathaniel's petition.
Nathaniel
claimed Cherokee heritage, and his counsel requested a continuance to allow her
to receive the case file and discuss the case with him. The court denied the request. It ordered notice be provided under the
Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA).
In April
and May 2011, at the hearing on D.D.'s section 388 petition and the section
366.26 hearing, the court denied Nathaniel's counsel's repeated requests to
continue the hearings. At the hearings,
the parties stipulated if L.D. were to testify, he would state he loves D.D.
and would prefer a permanent plan that allows him to have ongoing contact with
her.
The social
worker testified L.D. is an adoptable child because he is sweet, healthy,
happy, creative and has no developmental delays, and many families are
interested in adopting a child with his characteristics. The prospective adoptive parents were chosen
in part because they were willing to facilitate contact with L.D.'s biological
relatives and L.D. had said he would prefer a family with a mom and a dad. The social worker said L.D. seemed
comfortable with them and looked forward to their next visit. She said since meeting the prospective adoptive
parents, L.D. had not said he did not want to be adopted. He wanted to be with D.D., but he also wanted
a stable home and did not think D.D. could provide it.
D.D.
testified she was no longer sure about her allegations of L.D.'s past abuse and
during visits she had discussed adoption with L.D. because he brought up the topic. Nathaniel testified he had lived with D.D.
and L.D. until L.D. was about three years old, and they had had continued
contact after that. He said L.D. loved
him and called him "dad." He
acknowledged he had known about the case by about July 2009. He said he had not used alcohol or drugs for
three to four months, was employed and was living with the paternal
grandmother.
The court
found it would be detrimental to place L.D. with Nathaniel. It denied D.D.'s section 388 petition. It found L.D. is adoptable, there is no legal
impediment to prevent the prospective adoptive parents from adopting him, and
there was no showing that the beneficial parent-child relationship exception
applied to the case. It terminated
parental rights, but stayed the order to allow the Cherokee tribes to respond
to the ICWA notice.
Subsequently,
L.D. and D.D. continued to have their weekly supervised visitation. There were positive aspects to the visits,
but D.D. sometimes talked about inappropriate topics. During a telephone call, D.D. told L.D. he
had to make people know how much he loves her and to call her as much as he
could to prove it.
L.D. moved
to his prospective adoptive home in late May 2011. He resumed therapy and continued to have
contact with his CASA, his former teacher and classmates, and D.D. He told his former teacher he felt loved,
safe and wanted and called the prospective adoptive parents "mom and
dad." When asked to rate the home
from 1 to 10, he gave it a 25.
At the
continued hearing on July 5, 2011, the court considered the ICWA
documentation. It found ICWA notice had
been provided and ICWA did not apply. It
then lifted its stay of the May 17 order terminating parental rights and ruled
the order would become the order of the court.
DISCUSSION
I
Nathaniel
contends the court erred by denying his counsel's request to continue the
section 366.26 hearing to receive requested discovery and to have additional
time to prepare the case. Nathaniel has
not shown an abuse of the court's discretion.
A. Legal Principles
The
juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial
weight to a minor's need for prompt resolution of his or her custody status . .
. ." (§ 352, subd. (a).) "Continuances are discouraged [citation]
and we reverse an order denying a continuance only on a showing of an abuse of
discretion [citation]." (
808, 810-811.)
B. Application
Nathaniel
has not shown an abuse of the court's discretion. He knew about L.D.'s dependency for many
months, but did nothing about it. At the
beginning of the case, search efforts for him were instigated. In January 2009, Nathaniel contacted the Los
Angeles social worker to explain he was not in a position to care for L.D. and
did not expect to be able to do so in the near future. He conceded he had received notice in August
2009 that the case was transferred to San Diego County. He acknowledged the address listed after
December 2009 in court records was a correct address for him. In February 2010, he was personally served
with notice of the section 366.26 hearing and the social worker urged him to
write letters and send pictures to L.D., but he did not do so until April 2011.
Nathaniel
told the court he had not come forward earlier because he was having too many
problems in his life. In the meantime,
L.D. was in limbo, anxious about his future and feeling pressure from D.D. The court's decision to deny the request for
a continuance and to make a decision about L.D.'s future, allowed him to
transition into his prospective adoptive home where he felt loved and safe and
was receiving the stability he needed.
Further,
Nathaniel has not shown prejudice. His
counsel advocated on his behalf, and he appeared and testified about his
fitness as a parent. He had had little
contact with L.D. for many years, L.D.'s CASA wrote that L.D. did not talk
about Nathaniel and never voiced a desire to see him.
Nathaniel
has not shown an abuse of the court's discretion in denying his request for a
continuance and he has not shown he was prejudiced by the denial of his
request.
II
D.D.,
joined by Nathaniel, contends there was not substantial evidence to support the
court's finding L.D. is an adoptable child.
She argues because L.D. was 10 years old at the time of the hearing,
allegedly had been sexually abused and wanted to be with her and have contact
with his extended family, he is not adoptable.
A. Legal Principles
Before a
court frees a child for adoption it must determine by clear and convincing
evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court
focuses on the child -- whether his
age, physical condition and emotional state make it difficult to find a person
willing to adopt him." (
33 Cal.App.4th 368, 378.) Whether
there is a prospective adoptive family is a factor for the court to consider,
but is not determinative by itself. (
"On appeal, we review the factual basis for the trial court's
finding of adoptability and termination of parental rights for substantial
evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show the
evidence is insufficient to support the court's findings. (In re
Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
B. Application
Substantial
evidence supports the court's finding L.D. is an adoptable child. The social worker said he is adorable,
thoughtful, sweet and had met all developmental milestones. There were five families in San Diego County
and 35 families outside of the county with approved home studies interested in
adopting a child with his characteristics.
His CASA reported he was a joy to be with, and when they were on
outings, strangers commented on his good manners and behavior. Several people who knew him, including his
teacher, the vice principal at his school, and his foster mother, had at one
time or another expressed a wish to adopt him, showing that despite his age he
was generally adoptable.
The
psychologist who evaluated L.D. said he is resilient and recommended
adoption. L.D.'s therapist opined L.D.
had been making progress and was ready to be adopted. The therapist said L.D. liked the idea of
adoption and understood that although D.D. loved him, she was not in a position
to take care of him.
Further,
L.D. was in a home with prospective adoptive parents who wanted to adopt him
and had an approved adoptive home study.
The social worker said this family had been selected based on
characteristics important to L.D. L.D.
wanted both a mother and a father and he wanted a family that would support his
ongoing contact with D.D. and his extended family. The prospective adoptive parents fulfilled
these qualifications. Also, they were
supportive of L.D.'s emotional needs.
They accommodated him making a gradual transition to their home,
suggested L.D. hang pictures of those important to him in his new room and gave
him a disposable camera to take photographs.
Despite the prospective adoptive mother's concerns about D.D.'s history,
they said they would respect L.D.'s wishes to maintain contact with his
relatives following adoption.
L.D. met
the prospective adoptive parents in March, then had more visits and daily
telephone contact. He appeared happy
when talking about them. Although he
worried about maintaining contact with friends and relatives in San Diego, he
was also excited about the prospect of being adopted and living in a stable home. He told his CASA he enjoyed visiting the
prospective adoptive parents, and she said he appeared comfortable with
them. The evidence indicated they would
achieve a successful adoption.
D.D.'s
arguments that the court disregarded L.D.'s wishes not to be adopted are not
well taken. The social worker stated it
is not uncommon for children to waver about whether they want to be
adopted. At one time L.D. had said he
could not choose adoption over D.D. because he had not yet even met the
prospective adoptive parents, but then he discussed the type of family he would
prefer. He completed an adoption packet
with his therapist, and said he did not want D.D. to know about the packet
because he did not want to hurt her feelings.
After he met the prospective adoptive parents, he talked about the pros
and cons of adoption with his teacher and his CASA. He told the social worker he wanted to be
adopted by a mom and dad and appeared relieved when told the court would make
the final decision. He was happy to visit
the prospective adoptive parents, and, after a visit, said he missed San Jose.
In the
spring of 2011, L.D. had told the social worker he was tired of being in foster
care, but then said maybe long-term foster care was the better plan for
him. His concern may have been caused by
his foster mother becoming so attached to him that she did not want him to go,
and children in his foster home telling him he should not want to be
adopted. In addition, D.D. continued to
talk about the case with him, making him uncomfortable.
At the
March 2, 2011 hearing, L.D. told the court he wanted to be with D.D. At the April 13 hearing, after he had met the
prospective adoptive parents, he did not make the same statement. When asked if there was anything the court
should know, he said there was nothing, but that the visit with the prospective
adoptive parents went well. At the
section 366.26 hearing on April 27, the court considered evidence on L.D.'s
wishes and considered his stipulated testimony that he loved D.D. and would
prefer a permanent plan that would allow him to have ongoing contact with her.
The
evidence was mixed regarding L.D.'s wishes.
He loved D.D., did not want to hurt her feelings and wanted to continue
to have contact with her and other family members and friends. At the same time, he was excited about his
prospective adoptive family and longed for the permanence and stability of an
adoptive home. The court carefully weighed
the evidence and determined by clear and convincing evidence that L.D. was an
adoptable child. Substantial evidence
supports the court's determination.
III
D.D.,
joined by Nathaniel, asserts substantial evidence does not support the court's
finding the beneficial parent-child relationship exception to termination of
parental rights and adoption did not apply to preclude terminating parental
rights. She argues the evidence showed
she and L.D. had continued to strengthen their bond and he would suffer great
detriment if their relationship were permanently severed. Substantial evidence supports the court's
findings.
A. Legal Principles
"Adoption,
where possible, is the permanent plan preferred by the Legislature." (In re
Autumn H. (1994) 27 Cal.App.4th 567, 573.)
If the court finds a child cannot be returned to his or her parent and
is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless it finds a compelling reason for
determining that termination of parental rights would be detrimental to the
child under one or more of the enumerated statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi);
In re A.A. (2008) 167 Cal.App.4th
1292, 1320.)
If the
court finds by clear and convincing
evidence that a child is adoptable, it becomes the parent's burden to show
termination of parental rights would be detrimental to the child because a
specified statutory exception exists. (
establishing the existence of any circumstance that constitutes an exception to
termination of parental rights." (
1039.) Under the exception found in
section 366.26, subdivision (c)(1)(B)(i), the parent is required to show
termination would be detrimental in that "[t]he parents have maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship." In interpreting the meaning of
"benefit" in section 366.26, subdivision (c)(1)(B)(i), this court
stated in In re Autumn H.,
"In the context of the dependency scheme prescribed
by the Legislature, we interpret the 'benefit from continuing the
[parent/child] relationship' exception to mean the relationship 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 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." (In re Autumn H., supra,
27 Cal.App.4th at p. 575; accord In
re Jason J. (2009) 175 Cal.App.4th 922, 936-937.)
To meet the
burden of proof for this statutory exception, the parent must show more than
frequent and loving contact, an emotional bond with the child or pleasant
visits. (In re Jason J., supra,
175 Cal.App.4th at pp. 936-937; In re
Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show 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 Derek W.,
reviewing whether there is sufficient evidence to support the trial court's
finding, the appellate court reviews the evidence in the light most favorable
to the trial court's order, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order. (In re Autumn
H., supra, 27 Cal.App.4th at p.
576.)
B. Application
D.D. has
not shown a lack of substantial evidence to support the court's finding the
beneficial parent-child relationship exception did not apply.
Assuming
D.D. maintained regular visitation and contact with L.D., she did not show he
would be so greatly harmed by terminating the parent-child relationship that
the benefits of preserving their relationship would outweigh the benefits of
adoption.
D.D.'s
visits with L.D. continued to be supervised.
She often attempted to discuss inappropriate subjects with him,
including talking about the case, and she appeared not to notice when topics
made him uncomfortable. L.D. sometimes
acted out after visits, and after one visit with D.D. zipped a hooded sweatshirt
over his head and did not speak to anyone.
After N.D.
was born, D.D. brought her to every visit, resulting in D.D. being forced to
focus on N.D., rather than L.D., during their time together. She had difficulty considering his needs,
rather than her own concerns, and spent time during visits talking with the
visitation monitors instead of concentrating on L.D. L.D. struggled with his school work, but D.D.
did not consistently help him with homework, once complaining it interfered
with their playtime.
D.D. had
neglected L.D. when he was in her care, and he was either repeatedly sexually
abused or subjected to her delusions that he was being abused. She did not take responsibility for the
reasons he was removed from her care.
She continued to have unstable housing, she missed drug tests, and in
March 2011 police were called when she had a loud argument with N.D.'s
father. By contrast, L.D. was thriving
in an adoptive home where he felt safe and loved and was able to maintain
contact with D.D., his extended family and others who cared about him. D.D. has not shown the beneficial
parent-child relationship exception of section 366.26, subdivision (c)(1)B)(i).
D.D.'s
reliance on In re S.B. (2008) 164
Cal.App.4th 289 is misplaced. There,
this court reversed the trial court's finding that the beneficial parent-child
relationship exception did not apply after concluding the child would be
greatly harmed by loss of the significant positive relationship she shared with
her father. The father had complied with
every aspect of his case plan, frequently visited his daughter and was devoted
to her. She loved him and wanted to live
with him. (Id. at pp. 294-295.) D.D.
did not make such a showing. Further,
while factual comparisons between cases provide insight, these comparisons are
not dispositive. The determination on
appeal is whether there is substantial evidence to support the trial court's
findings that the beneficial parent-child relationship exception did not
apply. We conclude that on the facts of
this case, the court's findings are fully supported.
DISPOSITION
The orders
are affirmed.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE,
J.
name="_ftn1" title="">[1]
Statutory references are to the
Welfare and Institutions Code unless otherwise specified.
