In re Matthew W.
Filed 3/2/12 In
re Matthew W. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re MATTHEW V., a Person
Coming Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
CYNTHIA A.,
Defendant and
Appellant.
F063411
(Super.
Ct. No. 515651)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
County. Ann Q. Ameral, Judge.
Marissa
Coffey, 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-
Cynthia A.
(mother) appeals from an order terminating parental
rights (Welf. & Inst. Code, § 366.26)
would be detrimental to Matthew because of their parent-child relationship (§
366.26, subd. (c)(1)(B)(i)). On review,
we disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family
came to the attention of the Stanislaus County Community Services Agency
(Agency) in May 2007, when Matthew was born at 32 weeks gestation and his
meconium tested positive for THC, opiates and hydrocodone. Mother had a past history of methamphetamine
use, a criminal history of substance abuse, and had entered and left Stanislaus
Recovery Center numerous times. Her
three older sons lived with their father in another city, while her daughter,
Rachel, lived with her.
name="_ftnref3" title="">[2] Mother received family maintenance services,
which ended several months later after mother tested positive for drugs and
failed to attend treatment or follow through with recommendations.
Mother
again received family maintenance services beginning in October 2009, after the
Agency investigated a referral alleging she used drugs around Matthew and
thirteen-year-old Rachel was not attending school. When mother failed to follow through with
services, however, the Agency placed Matthew in protective custody and filed a
dependency petition.
name="_ftnref4" title="">[3] On January 26, 2010, Matthew was placed in
the home of Mr. and Mrs. L., where he remained throughout these
proceedings. Several months later, the
juvenile court granted the L.’s request for de facto parent status.
In April 2010, the juvenile court
exercised its dependency jurisdiction over Matthew (§ 300, subd. (b)), removed
him from mother’s custody, and gave her reunification services. Mother was given twice monthly
visitation. Social worker Katherine
Croom had observed mother and Matthew during visits. She reported that Matthew was very
affectionate towards mother, who played and interacted appropriately with him,
the visits appeared positive for him, and Matthew was “extremely bonded” to
mother. In August 2010, mother began receiving
weekly visits. Mother visited regularly,
missing only a few visits. Croom
continued to report that Matthew was “extremely bonded” to mother and the
visits went well, with mother demonstrating her love and support through
affection and play.
The juvenile court terminated
reunification services in February 2011 due to mother’s failure to participate
regularly in them, and set a section 366.26 hearing to select and implement a
permanent plan for Matthew.
name="_ftnref5" title="">[4] Mother’s visitation was reduced to one visit
per month.
Social worker Croom prepared a
“366.26 WIC Report” in which she recommended the court terminate parental
rights and implement the permanent plan of adoption. The social worker was confident that if
parental rights were terminated, the L.’s would adopt Matthew, as they were
committed to him, had provided him with stability, love and support, and had
provided the Agency with everything required to adopt him. While Matthew was too young to offer a
meaningful statement about adoption, it was clear that he was very attached to
the L.’s and fully integrated into their family.
With respect to visitation, Croom
stated that Matthew had regular contact with mother and she had visited him
once per month since the February 2011 review hearing. Matthew’s maternal grandmother sometimes
attended the visits. During visits,
mother read to and played with Matthew, who appeared to enjoy the visits.
At the
section 366.26 hearing,
name="_ftnref6" title="">[5] several witnesses testified on mother’s
behalf. 15-year-old Rachel testified
that she saw mother with Matthew before he was placed into foster care, and
mother was good with him. Rachel had
attended at least five of mother’s visits with Matthew in 2011. When asked to describe the relationship
between mother and Matthew, Rachel responded, “[h]e still knows us.” According to Rachel, Matthew recognized
mother and called her “the other mom.”
While Matthew recognized Rachel, he did not call her by name or “really
say anything” to her. Rachel did not
think she had much of a relationship with Matthew, though she would like to
have one. During visits, which Matthew
seemed to enjoy, he would come up to mother and they would hug and kiss;
Matthew would say “I love you, Mom.”
Mother gave Matthew pictures of the family, and he recognized mother in
the pictures. At the last visit Rachel
attended, mother asked Matthew if he wanted to come back and live with
her. Matthew started crying and said he
wanted “his mommy and daddy[,]” by which he meant the foster parents.
Matthew’s
maternal grandmother, Gloria A., testified that she regularly saw Matthew
between his birth and his removal from mother’s custody in December 2009. During that time, she saw mother caring for
Matthew’ daily needs, the two were affectionate, and Matthew adored mother,
clinging to her and always wanting to be around her. After Matthew’s removal, Gloria visited him
along with mother. Gloria described the
visits as “very good.” Matthew recognized
mother and always hugged and kissed her.
Gloria said Matthew called mother “Mom” during visits, although she had
also heard Matthew refer to his foster parents as “Mom and Dad.”
Mother lived with Gloria. According to Gloria, mother told Matthew
about his room at their house and that they were waiting for him to come
home. Gloria claimed Matthew talked about
that room “all the time,” and has said that he wants to go to mother’s
home. Gloria had also heard Matthew talk
about his home with his foster parents.
At the last visit, he mentioned having a dog and has said he “has stuff”
at his house. Gloria said that Matthew
recognizes her, calls her “Grandma,” and comes up to her and hugs her. Rachel attended some of the visits. Gloria said Matthew recognized Rachel and the
two played together. Mother brought
pictures of family members to visits; Matthew recognized the people in the
pictures.
Social worker Croom, who authored
the section 366.26 report, testified that mother had attended all of her
monthly visits since the February 2011 review hearing, and prior to that, she
visited regularly. Croom had observed
some visits since February 2011. She had
seen mother and Matthew reading and no concerns had been raised about the
visits, which went well and overall were positive. Croom believed mother interacted well with
Matthew and that he recognized mother as well as Gloria. During the time Croom had been supervising
the case, Matthew had never asked her for additional visits with mother. Another social worker was responsible for
seeing Matthew in the foster home; that social worker had never told Croom that
Matthew requested additional visits with mother. Since mother’s services were terminated,
mother had been consistent in asking Croom about Matthew’s well-being while in
foster care and seemed interested in how he was doing.
Mother
testified she was Matthew’s primary caregiver from his birth until he was
removed from her custody; she made sure he had food and clean clothes, and did
bonding activities with him such as watching TV, walking him in the stroller,
playing with him and taking him to the park.
Matthew went everywhere with her.
Once Matthew was removed from her care, she visited him regularly; she
believed the visits were positive.
During visits, Matthew called her “Mom.”
Gloria was also at the visits and mother believed Matthew recognized
her, calling her “Grandma.” At visits,
mother picked Matthew up and hugged him; in return, he hugged and squeezed her
tight. When mother told him she missed
him, he whispered in her ear, “I miss you, too.” Mother believed Matthew was happy to see her,
though he was shy and a little confused.
Matthew never asked her when he would see her again.
Mother did not agree with the
recommendation to terminate her parental rights; she wanted to maintain a
relationship with Matthew “[b]ecause he’s my son and I’m his mom.” Mother brought family photos to visits, which
she shared with Matthew. Mother always
asked Matthew during visits if he was ready to come home and live with
her. The last time she asked him that,
he started to cry. She asked him this
question “[b]ecause he’s my son” and he should be home with her. Mother did not want Matthew to be adopted and
felt he would be emotionally harmed if he could not visit her in the
future. When asked how Matthew would be
emotionally harmed if he did not have further contact with her, mother
responded, “[b]ecause I’m his mom” and “his family.”
County counsel made an offer of
proof, which the court and counsel accepted, that were the de facto father to
testify, he would state that Matthew has two photographs of him and his mother
on a table right next to his bed. The de
facto mother also testified about the photographs.
In closing
argument, mother’s attorney urged the juvenile court to find it would be
detrimental to Matthew to terminate parental rights under section 366.26,
subdivision (c)(1)(B)(i), as mother had maintained regular visitation and
contact with Matthew and he would benefit from continuing that
relationship. The juvenile court
rejected this argument. While the
juvenile court did not doubt that Matthew considered mother to be his “mommy,”
it found that mother had not met her burden of proving that termination of the
parent/child relationship would be so detrimental to Matthew that termination
should not be ordered. Having found
Matthew likely to be adopted, the juvenile court terminated parental
rights. The juvenile court granted the
foster parents’ request to designate them as Matthew’s prospective adoptive
parents.
DISCUSSION
Mother
contends there was insufficient evidence to support the juvenile court’s failure
to find that Matthew shared a beneficial relationship with her so that
termination of parental rights would be detrimental to him. (§ 366.26, subd. (c)(1)(B)(i).) According to mother, the court should not
have terminated her parental rights because she maintained regular visitation
with Matthew and he was significantly bonded to her. Mother’s argument is meritless, as it ignores
the standard of review we apply and the law regarding termination, as well as
the conflicting evidence before the juvenile court.
Once a
dependency case reaches the permanency planning stage, the statutory
presumption is that termination is in an adoptable child’s best interests and,
therefore, not detrimental. (§ 366.26,
subd. (b); In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1343-1344 (Lorenzo C.).) Indeed, the court must order adoption and its
necessary consequence, termination of parental rights, unless one of the
specifically designated circumstances of section 366.26, subdivision (c)(1),
provides a compelling reason for finding that termination of parental rights
would be detrimental to the child. (
53.)
It is the parent’s burden to show
that termination would be detrimental under one of the statutory
exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The beneficial relationship exception in
section 366.26, subdivision (c)(1)(B)(i) involves a two-part test: (1) did the parent maintain regular
visitation and contact with the child; and (2) would the child benefit from
continuing the relationship. For the
exception to apply, “the parent-child
relationship [must] promote the well-being of the child to such a degree that
it outweighs the well-being the child would gain in a permanent home with new,
adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: ‘balance . .
. 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. 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.’ (Id.
at p. 575.)” (Lorenzo C., supra, 54
Cal.App.4th at p. 1342.)
When a court rejects a detriment
claim and terminates parental rights, the appellate issue is whether the
juvenile court abused its discretion in so doing. (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The decision is not reviewed, as mother
argues, for substantial evidence to prove a negative, i.e. that termination
would not be detrimental. To conclude
there was an abuse of discretion, the proof offered must be uncontradicted and
unimpeached so that discretion could be exercised in only one way, compelling a
finding in the appellant’s favor as a matter of law. (Roesch
v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Based on our review of the record, we
conclude the juvenile court properly exercised its discretion in rejecting
mother’s argument.
There is no dispute that mother
satisfied the first part of the exception, i.e. that she maintained regular
contact with Matthew. Mother failed to
establish, however, the second part, namely that Matthew would benefit from
continuing his relationship with her.
While mother presented evidence that she had pleasant visits with
Matthew, during which they enjoyed loving contact, and he recognized her as his
mother and enjoyed the visits, this was not enough. Since contact between a parent and child
generally confers some benefit on a child, mother had to demonstrate more than
pleasant visits or loving contact to compel a finding that termination would be
detrimental to Matthew. (
953-954.)
There was simply no evidence, let
alone uncontradicted and unimpeached proof, that Matthew would be greatly
harmed if he could no longer see mother.
(Lorenzo C.,
the case that Matthew was extremely bonded to mother, but ignores the lack of
supporting evidence for those statements.
It was apparent from the testimony presented at the section 366.26
hearing that while Matthew knew who his mother was and he was loving toward her
during visits, he did not regard her as the parental figure in his life. As Rachel testified, Matthew knew mother as
“the other mom,” and when mother asked him if he wanted to come live with her,
Matthew cried and asked for “his mommy and daddy,” meaning his foster
parents. According to Croom, Matthew
never asked for additional visits with mother or more contact with her. When mother was asked why Matthew would be emotionally
harmed if he could no longer visit her, mother’s only response was because she
is his mother.
Mother contends that termination of
her parental rights was not warranted because, as shown by evidence she
submitted with the section 388 petition she filed before the section 366.26
hearing, she completed her case plan after services were terminated and has
maintained a sober, responsible lifestyle for nearly nine months. Mother likens her case to that of
does not persuade us either factually or legally.
While the evidence mother cites
shows she was making progress in correcting the problems which led to Matthew’s
removal, she did not complete her case plan, as she claims. As we explained in our prior opinion from the
appeal of the denial of the section 388 petition, although at the time the
petition was filed mother had remained sober for less than six months, and had
participated in parenting education and domestic violence classes that were
part of her case plan, she had not completed either program and had not yet
begun to engage in individual counseling.
(In re Matthew V. (Feb. 2,
2012, F063066), p. 11.) While mother’s
progress was commendable, the evidence does not support her claim that she
completed her case plan.
In any event, neither case she
relies on stands for the proposition that a parent’s efforts to reunify coupled
with regular, pleasant, and affectionate visits compels a finding that
termination would be detrimental to the child.
While the appellate courts in both cases mentioned the parent’s
compliance with his or her case plan as evidence of his or her devotion to the
child or children, that was not the linchpin of either decision. (S.B.,
supra, 164 Cal.App.4th at p. 300;
Instead, in both cases there was uncontroverted third-party evidence,
including expert opinion, of a strong attachment between the parent and child or
children, and the potential for harm to the child or children should that
attachment be severed. (
Cal.App.4th at pp. 689–690.) In this
case, mother presented no such evidence.
Under these circumstances, the
juvenile court reasonably could determine that termination would not deprive
Matthew of a substantial, positive emotional attachment such that he would be
greatly harmed. Accordingly, the court
did not abuse its discretion by rejecting mother’s detriment claim.
The order terminating
parental rights is affirmed.
Dawson, J.
statutory references are to the Welfare and Institutions Code.
