Mercedes S.
Filed
4/4/13 In re Mercedes S. 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NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 MERCEDES S., et al.,
Persons Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
ALEX S.,
Defendant and
Appellant.
F065320
(Super.
Ct. Nos. 0096962-4, 0096962-5)
APPEAL from
a judgment of the Superior Court of
County. Hilary A. Chittick, Judge.
Gino de
Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Alex S.
appeals from an order terminating his parental
rights (Welf. & Inst. Code, § 366.26)
10-year-old Alexandria (collectively the girls). He contends the juvenile court erred by
rejecting his argument that termination would be detrimental to the girls based
on their relationship with him. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
These
dependency proceedings were initiated in October 2005, when Lydia C., the
girls’ mother, and father, Lydia’s boyfriend, were arrested after police found
drugs and drug paraphernalia in their home.
The girls, then four and three years old, were taken into protective
custody and detained. The juvenile court
took dependency jurisdiction over the girls due to ongoing domestic violence
between their parents, as well as the parents’ history of substance abuse. At a contested dispositional hearing, the
juvenile court ordered reunification
services for father but denied them to mother.
maternal aunt and uncle. Father failed
to comply with his reunification services and, at a January 2007 12-month
review hearing, the juvenile court terminated his services and set a section
366.26 hearing.
The section 366.26 hearing did not
occur until September 2007. In March
2007, the relatives with whom the girls were placed told the social worker they
no longer wished to provide a permanent home for the girls. In July 2007, the juvenile court granted
Fresno County Department of Social Services’ (Department) section 387 petition
to change the girls’ placement from relative placement to foster care. The girls were placed with foster parents who
were open to adoption, but wanted additional time with the girls before
committing to a more permanent plan. At
the section 366.26 hearing, the juvenile court found that while the girls were
likely to be adopted, termination of parental rights would be detrimental to
them because their foster parents were unable or unwilling to adopt because of
exceptional circumstances, but were willing and able to provide the girls with
a stable and permanent home.
Accordingly, the juvenile court retained jurisdiction and ordered long
term foster care as the girls’ permanent plan.
A review hearing was held in
February 2008. The girls had been moved
to a new foster home that month. The
care providers, Heather and Ruben R., were interested in pursuing adoption, but
the Department wanted to wait until the girls had been in the home for six
months before scheduling a permanency
planning hearing. The juvenile court
continued the girls in foster care. By
August 2008, the R.s still wanted to adopt the girls. Accordingly, the Department recommended that
the juvenile court set a section 366.26 hearing and select adoption as the
girls’ permanent plan. A contested
review hearing was held in September 2008, at which the juvenile court ordered
bonding studies for the girls with their parents and the R.s.
A bonding assessment was completed
by Kerri Freeman, LMFT, at California Psychological Institute, over the course
of several interviews with the girls, father, and the R.s; the report was
issued in May 2009. Freeman opined
that (1) the girls had a parent/child
relationship with father; (2) the girls had a “substantial positive emotional
relationship†to father such that they may be greatly harmed if the
relationship were terminated; and (3) continuing the relationship would promote
the girls’ wellbeing to such a degree as to outweigh the wellbeing they would
gain in a permanent home. Freeman
recommended father’s relationship not be severed and that he continue to work
toward having the girls returned to his care.
Freeman believed the girls were struggling with the thought of adoption
due to the parent/child relationship they had with father and their fear of
losing that bond.
Based on this, the Department
opined that while the girls were generally adoptable, their significant bond
with father meant that adoption would be detrimental to them if they were
unable to continue that relationship following the adoption. Since the R.s were unwilling to allow the
girls to visit father if they adopted the girls, the Department believed it
would be detrimental to terminate parental rights. While the R.s initially stated they wanted
the girls removed from their home if the court did not order adoption, they
later changed their minds and agreed to provide a permanent plan of
guardianship and to transport the girls for visits with their parents. The Department therefore recommended a
permanent plan of guardianship with dependency.
At the July 2009 section 366.26
hearing, the juvenile court found that termination of parental rights would be
detrimental to the girls because their parents had maintained regular
visitation and contact, and the girls would benefit from continuing those
relationships. The juvenile court also
found guardianship to be the girls’ appropriate permanent plan, appointed the
R.s as their legal guardians, and continued dependency jurisdiction. Father was given twice monthly supervised
visitation, with the Department given discretion to move to unsupervised
visits.
A review hearing was held in
January 2010. The girls were doing well
in their placement. Father wanted to
reunify with the girls. The social
worker had observed the girls’ visits with father and saw there was a strong
bond between them. Father communicated
and interacted well with the girls, and was affectionate with them. Father had been compliant with his supervised
visitation schedule; his wife Andrea, her children, and his biological
daughter, Alexis S., also participated in the supervised visits and interacted
well with the girls. Father had been
drug testing and his tests were all negative.
While the R.s still wanted to adopt the girls, the Department opined
that adoption was not in the girls’ best interests given their strong bond with
father. At the review hearing, the juvenile court continued the guardianship,
as well as dependency jurisdiction, and ordered that father’s twice-monthly
visits move from supervised to unsupervised.
In a report prepared for the July
2010 review hearing, the social worker stated that the girls thought visits
with father were going well and they enjoyed visiting him. The R.s reported minor changes in the girls’
behavior once unsupervised visits began, but their behavior had improved. The girls told a social worker they wanted to
return to father’s care. The social
worker noted, however, that the girls appeared to be torn between wanting to
reunify with father and to remain with the R.s.
Accordingly, the social worker referred the girls for mental health
assessments to see if they could receive therapeutic services that would help
them deal with their feelings and mixed emotions. Father had completed a 52-week parenting
class, a 52-week batterer’s treatment program, and a drug rehabilitation
program. The Department continued to
recommend guardianship with dependency as the most appropriate plan for the
girls.
The girls completed their mental
health assessments in July 2010. In
Alexandria’s assessment, the therapist, Sharon Schafer, LMFT, noted she had
been thriving in the R.s’ home without behavior problems until the visits with
father changed from supervised to unsupervised.
The visits caused Alexandria difficulty with conflicting loyalties between
father and the R.s, as well as intermittent temper outbursts after visits
lasting two to three days. Alexandria
said she and her sister disagreed on what to tell the R.s about time spent with
father, and that Andrea had hurt her feelings.
Alexandria was burdened with the belief that ultimately she would decide
who she would live with; she trusted and loved the R.s, but yearned for mother
and father to parent her well even when she was aware there were often problems
at her visits. Schafer recommended
visits returned to supervised, as the abrupt change had caused Alexandria
distress, and visits move to unsupervised slowly when the Department was
convinced the parents could act appropriately.
Schafer expected Alexandria’s symptoms to become more severe and
problematic if she remained in the current situation of not knowing where and
with which family she would live out the rest of her childhood.
Despite this assessment, the
Department recommended the court grant discretion for liberal visits between
father and the girls. While the
Department acknowledged Alexandria’s mixed feelings and emotions regarding
placement, and that the R.s initially reported some behavioral changes when
visits moved from supervised to unsupervised, the social worker noted the R.s
had reported the girls’ behavior had returned to normal. The social worker did not believe there was
any reason to move the visits back to supervised, as the girls had not reported
any significant concerns or issues with visits, and father had been consistent
and compliant with visits.
The Department thereafter received
Mercedes’ assessment, in which the therapist, Janet E. McKee, LCSW, also
recommended visits return to supervised with a slower transition to
unsupervised when the parents’ behavior became appropriate. McKee was concerned about Mercedes’ behavior
when she returned to the R.s after unsupervised visits; after one visit, she
cried on the way home and would not say what was wrong or what happened at the
visit. Mercedes said that father told
the girls they could not move home yet, which upset her, and also told them it
was not any of the R.s’ business what the girls did with him. It appeared to McKee that father had talked
to the girls about the case and was trying to control what information got to
authority figures about their visits with him.
McKee believed the move to eight hours, twice monthly, unsupervised
visits upset Mercedes’ normal balance and set up a situation where she had
conflicting loyalties.
On July 28, 2010, the juvenile
court ordered the Department to hold a staffing with the involved parties to
identify a case plan goal for the girls and discuss concerns regarding the
case. A staffing was held on August 12,
2010, with mother, father, and the R.s all present. The parties were advised the Department’s
recommendation was for the girls to remain in legal guardianship with the goal
of reunifying with father, as the visits with him were going well and he had
completed all of the reunification services originally ordered, and that the
Department have discretion to move to liberal visits. The Department recognized McKee’s
recommendation regarding visits between Mercedes and father, but discounted it
as it appeared to be based on information obtained from the R.s and not Mercedes. The Department did not agree with the
recommendation as it had assessed the contact between Mercedes and father to be
appropriate, and Mercedes had not reported any concerns about father’s
behavior.
On August 25, 2010, the juvenile
court continued the review hearing and ordered the Department to develop a
transition plan regarding visits between the girls and father. The social worker spoke to McKee and told her
the Department did not agree with her recommendation since visits were going
well and father had completed his services.
McKee nevertheless continued to have concerns due to father’s history of
violence, the reported fighting going on between father and his “girlfriend,â€
and father’s instruction to Mercedes that she not disclose to anyone what
happens during visits. McKee believed
father placed the girls at risk by instructing them to “keep secrets†in
violation of “CPS rules,†and it was important to move in a slow and consistent
manner, with a systematic progression, when someone has a history of violating
“other’s rights†or the “rules.â€
Schafer’s recommendations regarding Alexandria also did not change in
light of the information regarding visits and father’s completion of services.
Despite the opinions of McKee and
Schafer, the Department continued to
recommend that the juvenile court give it discretion for liberal visits,
as the girls had not disclosed any concerns that father or Andrea were
inappropriate during visits or that the girls did not want to visit; to the
contrary, the girls told the social worker they wanted to live with
father. On September 2, 2010, the social
worker spoke with the girls’ attorney, who reported they told him they wanted
to stay overnight with father.
On October 12, 2010, the juvenile
court continued the review hearing so the Department could conduct a staffing
to discuss the girls’ permanent plan. At
the November 4 staffing, at which the R.s, mother and father were present, it
was decided to have the girls remain in legal guardianship, the Department submit
a new mental health referral so the girls could receive therapy, and that
father’s visits remain unsupervised.
Everyone, except father, agreed with these decisions. While the girls were stable, doing well with
the R.s, and were excelling in school, there was concern about their
conflicting feelings regarding their loyalties to the R.s and parents. At the November 16, 2010 review hearing, the
juvenile court continued the legal guardianship, ordered mental health
assessments, and continued father’s unsupervised visits to be scheduled by the
social worker.
In a report prepared for the next
review hearing, the Department stated that the girls were participating in
twice monthly unsupervised visits with father.
According to the girls, the visits were going well and they enjoyed
them. Concerns were reported, however,
that father and Andrea argued in front of the girls, and Andrea yelled and used
profanity towards one of the girls. When
confronted about this, father and Andrea both denied that either occurred. Andrea stated she and everyone else in her
family had a good relationship with the girls, who called her “mommy.†When the social worker spoke to the girls
about the concerns, their statements were inconsistent.
The girls’ mental health assessments
were completed in January 2011. Freeman
assessed Mercedes; Freeman did not recommend ongoing therapeutic services and
was unable to provide a recommendation as to visits as she did not know
Mercedes. Freeman stated that, according
to Mercedes and Ruben, Mercedes only experienced minor symptoms for a few hours
following visits with father. Freeman
did not see this as abnormal for a child adjusting from one parent or situation
to another. Mercedes did not report
anxiety, sadness or ongoing symptoms during the week. Freeman felt any recommendation regarding
visitation needed to come from someone who knew Mercedes best and worked with
her. Alexandria was assessed by
therapist Brooke Pfister, who recommended ongoing therapeutic services due to
symptoms of anxiety, worry, sadness and withdrawal. Pfister also could not provide a
recommendation regarding visitation.
At the February 2, 2011, review
hearing, the juvenile court continued the guardianship and dependency, and
ordered the Department to set up a visitation schedule. The juvenile court continued the review
hearing to February 23 to address visitation.
At a subsequent Department staffing, the R.s presented a proposed visitation
schedule of one eight hour visit per month for each parent, with an additional
visit for father in July and for mother in December. While mother, the R.s and the Department
agreed that the plan was least restrictive and provided the most stability for
the girls, father did not agree with the plan as he did not want to lose one of
his visits. The Department recommended
the juvenile court adopt the visitation plan, which the juvenile court did at
the February 23 hearing.
In a report prepared for the July
2011 review hearing, the Department recommended that a section 366.26 hearing
be set to allow the Department to assess the girls for adoption. The Department reported on visitation. The R.s raised concerns about the March 12,
2011 visit. The R.s claimed father told
the girls he was going to rip the R.s’ faces off, and presented a voice
recording they said was of Alexandria telling them what father said to
her. Father claimed he would never make
such comments to the girls. The social
worker was unable to confirm with the girls whether the statement actually was
made.
Father did not attend the remainder
of his monthly visits. Andrea cancelled
the April 9 visit, as father could not attend because he was working out of
town. No visit occurred in May and
father did not contact the Department.
The social worker called father on June 1 to ask why he missed a visit
scheduled for May 7, but father did not have an excuse. Father missed a visit scheduled for July 2,
2011 and failed to contact the Department.
The R.s also reported that father did not attend visits on January 29 and
February 26, 2011. Due to father’s
inconsistency in attending visits and his failure to keep the social worker
informed about missed visits, the Department recommended father’s unsupervised
visits change to quarterly due to the negative effect the missed visits had on
the girls.
The R.s reported to the social
worker that Alexandria was having some behavioral issues after visits with
father, such as acting out, talking back, and being defiant and
disrespectful. The R.s at first stated
the behaviors lasted a couple days, but later reported they lasted a couple
months dating back to the last visit with father on March 12, 2011. Alexandria had since returned to her normal
self. Alexandria’s behaviors were
reported to her therapist, who was working with her on reducing the symptoms of
anxiety, worry, sadness and withdrawn behaviors.
A contested hearing was set on the
issue of whether to set a section 366.26 hearing, and whether the R.s were
inhibiting visitation. On September 6,
2011, the juvenile court ordered a second bonding study, to be conducted by
someone other than Freeman. The juvenile
court further ordered the Department to provide an update regarding the number
of visits the parents had attended, and that visitation continue as previously
set. The court set a section 366.26
hearing for January 3, 2012.
In a report prepared for the January 3, 2012
hearing, the Department recommended that the girls’ plan remain guardianship
with dependency and that father’s visits increase to twice per month, with
discretion for overnight visits. The
social worker explained that while the girls were generally adoptable and the
R.s wanted to adopt them, they had a significant bond with father and it would
be detrimental to them to sever that relationship. The social worker cited the 2009 California
Psychological Institute (CPI) bonding study by Freeman, in which Freeman
recommended father’s relationship with the girls not be severed and father
continue to work towards the hope of having the girls returned to his care.
Pursuant to the juvenile court’s
order, a request for a second bonding study was sent to CPI. Kathleen Romeiro, LCSW, from CPI, told the
social worker that in her opinion a bonding study was not an appropriate tool to
assess the concerns related to a possible plan of adoption since one had
already been completed which determined a significant bond existed, and
father’s missed visits would not negate the established bond. Instead, Romeiro recommended the Department
investigate why father did not attend his visits and interview the girls about
their wishes for placement. Father had
appeared for an interview at CPI as part of the bonding study; he told Romeiro
he missed visits because he did not have a car or driver’s license, and the R.s
were only willing to bring the girls halfway between their home and his. The Department thereafter made a referral to
Collegium Scientifica for the second bonding study.
The social worker reported that
father had missed one visit out of eight.
The social worker observed visits on November 16 and December 7, 2011;
the girls were very happy and excited to see father. Father brought the girls snacks and gifts,
and interacted appropriately with them.
The girls appeared more outgoing and lively in his presence. The social worker noted it appeared there was
ongoing tension between the R.s and father regarding visits, and the girls were
caught in the middle and afraid to express their feelings about the visits for
fear that either the R.s or father would become upset with them. The girls had shared with the social worker
that they did not want to be adopted and would like to live with father.
The girls had been in the R.s’ care
for four years; they were stable and doing well there. Despite that stability, the girls maintained
a close relationship and attachment with father. The social worker had observed the girls with
father; they appeared comfortable and happy with him. Father had demonstrated he was loving and
nurturing toward the girls, who in turn demonstrated that same love and
affection by hugging father and sitting in his lap during visits. The social worker noted that when Mercedes
was with the R.s she was timid and quiet, while when she was with father, she
came out of her shell and become animated, talkative and happy. The social worker believed that the different
parenting styles of the R.s and father caused tension and conflict in “their
relationship.â€
The section 366.26 hearing was
continued to April 3, 2012, and again to May 9, 2012, so the bonding study
could be completed. In May 2012, a Court
Appointed Special Advocate (CASA) who had been appointed to the case in
November 2011, completed a CASA report.
The CASA observed a portion of a visit on April 14, 2012, between father
and the girls at father’s home. The
girls appeared to be enjoying themselves, and they interacted well with father
and the other children in the home. At
the conclusion of the visits, Andrea and Alexandria took photographs and
laughed together. The girls later told
the CASA, when asked if they had a good time at the visit, they have fun during
visits and enjoy spending time with father and Andrea. Alexandria was in therapy at CPI, where she
saw a therapist twice per month. In
February 2012, Heather gave the CASA an envelope with several letters addressed
to the court and the social worker which Alexandria wrote. In one letter, Alexandria stated that after
giving the R.s, who she called “Mom & Dad,†a hug and kiss before getting into
the car with father and Andrea for a visit, she was yelled at: “They’re nothing
to you and will never be. Don’t hug
them. They’re not your parents, we
are.†Alexandria wrote that father
“always shouts,†which makes her sad and disappointed.
The second bonding study was
completed in May 2012, by psychology trainee Andrea Ormonde, M.A.; the study
also was signed by Laura A. Geiger, Psy.D..
Ormonde reviewed social study reports and the bonding study by Freeman,
conducted clinical interviews, and had the parties perform various tests. Ormonde opined that, based on a “thorough
review of the case reports, a clinical interview, a mental status examination,
and review of the test dat[a,]†father and the girls did not have a
parent/child relationship; and father seemed to take on the role of an extended
family member instead of a parent, “which would require providing structure,
engagement, nurturing and appropriate challenging.†Ormonde further opined that: (1) while the
girls seemed to have beneficial emotional attachments to their parents, both mother
and father exhibited a lack of parenting skills, deficits in insight, and
sporadic visitations which suggested the girls would not be greatly harmed if
the parent/child relationships were terminated; (2) continuing the parent/child
relationships would not outweigh the wellbeing the girls would gain in a
permanent home with adoptive parents; (3) the girls and the R.s had a
parent/child relationship; and (4) the girls had a positive emotional
attachment with the R.s and severing that relationship might reinforce the
abandonment the girls had experienced.
Ormonde noted that the girls both
had significant clinical problems, for which Alexandria was being treated
currently and for which Ormonde was recommending Mercedes receive
treatment. Ormonde opined the girls’
emotional stability would be enhanced greatly with continuing their current
home life, while further disruption would likely cause regression and further
psychological damage. Ormonde reported
that father, when asked why the girls were still in the foster care system,
responded he was unsure as he had completed all of the services two and a half
years ago. Father believed the judge
assigned to the case had been biased against him from the start and did not want
him to have the girls. Father adamantly
declared it was not his fault the girls were removed from his and mother’s care
in the first place, as the children were at mother’s house.
Based on the second bonding study,
the Department changed its recommendation from guardianship to adoption with
termination of parental rights. The
social worker noted that the R.s wanted to adopt the girls; the R.s exhibited
an excellent ability to provide structure, extracurricular activities and
routines for the girls that were appropriate for their developmental
level. The social worker opined that
while the girls had a positive relationship with father, it did not outweigh
the benefits that adoption would provide, as the girls would benefit from
having a stable, loving and nurturing home environment that the R.s were
providing. The social worker further
noted the R.s recognized the importance of the birth parent relationship and
were open to maintaining the girls’ relationships with their biological parents
by mediating a post-adoption agreement through the Consortium for Children.
The contested section 366.26
hearing ultimately was held in July 2012.
The Department submitted on its reports, the May 2012 bonding study and
the curriculum vitae it submitted for Geiger and Ormonde. Father called the social worker Leticia
Simental, the girls, the R.s, Andrea and himself to testify.
Simental, a social worker in the
assessment adoptions area who had been assigned to the case for the preceding
11 months, testified that she changed her recommendation from guardianship to
adoption based on the May 2012 bonding study and Alexandria’s letter in which
she stated she wanted to be adopted.
Simental had stated in a prior report that the girls had a significant
bond with father that would be detrimental to the girls to sever; this opinion
was based on her review of the file, including the 2009 bonding study, as well as two visits between
the girls and father that she observed where she witnessed the girls’ bond with
father. Other than the May 2012 bonding
study, Simental did not have any reason to believe that the bond between the
girls and father had diminished since 2009.
The decision to change the Department’s recommendation was made by
Simental and her supervisor.
Eleven-year-old Mercedes testified
that she did not want to be adopted by the R.s because she wanted to live with
father. Mercedes denied that any
problems or bad things happened during her monthly visits with father. Mercedes said she had a good relationship
with Andrea, who she called “Mom,†and denied that Andrea was mean to her or
Alexandria. Mercedes wanted more visits
with father. She did not have any
specific reason why she did not want to live with the R.s.
Ten-year-old Alexandria testified
she calls the R.s “mom†and “dad.â€
Alexandria confirmed the incident occurred that she wrote about in the
February 2012 note, in which Andrea yelled at her and said the R.s were not her
biological parents. Alexandria’s
relationship with Andrea had improved since February; Alexandria felt
comfortable with Andrea, as Andrea had gotten nicer. Alexandria wanted to be adopted by the
R.s. If the judge ordered adoption,
however, she still wanted to see father.
Alexandria said she told Mercedes that if they lived with father or
mother, then they could not see the R.s, their friends or the R.s’ family
anymore, but if they lived with the R.s, they would get to see father, mother
and the R.s. Alexandria wanted to be
adopted because she had lived with the R.s for nearly five years, she did not
want to move to a different home, and she wanted the R.s to be her parents.
Heather confirmed the girls had
lived with them since February 2008, and that they had wanted to adopt the
girls ever since she and her husband took placement of them. Heather saw the girls immediately after their
visits with father; she was concerned about their transitions back to their
home following those visits. Mercedes
would become very withdrawn, while Alexandria would become more defiant. The girls did not act this way after visiting
other people the R.s knew. The girls had
made statements after visits to the effect that they, especially Alexandria,
had been treated unkindly or unkind words had been said about the R.s. Heather suspected Alexandria became more
defiant because she was returning from a situation in which she was treated
badly. Heather was also concerned about
the “language choice†being used in father’s home, which the R.s would not use
in their own home. Alexandria had begged
Heather several times not to make her go visit father. Heather knew that if adoption were ordered,
Mercedes wanted to continue to visit father; she believed Alexandria would also
want to continue visiting him, but she was not sure about that.
Ruben R. also knew that the girls
wanted to continue to visit father if adoption were ordered. He agreed that the girls have a bond with
father. He also agreed that Mercedes
loves father, looks forward to visiting him and was disappointed when she could
not visit him. Alexandria wanted to see
father “[o]n her termsâ€; Ruben did not think she wanted to see him very
often. Alexandria was not necessarily
happy when father showed up for visits or happy to go with him, although she
did want to maintain contact with him.
Father testified about the second
bonding study. He was concerned after he
showed up for the study because the person conducting the study, Ormonde, said
she was an intern and Geiger would not be there. Father said it took him about 20 minutes to
answer a survey of about 100 to 120 questions.
After that, the girls were brought into the room and Ormonde had them do
six different “exercises,†which were filmed.
When they finished the exercises, the study was over. Father estimated the girls were in the room
for about 20 minutes. Father never had
any contact with Geiger. During the
first bonding study with Freeman, father was there for about three hours, while
the second study took less than an hour.
Ormonde did not inquire into his background or history, and did not ask
questions of a personal nature.
Father objected to the girls being
adopted because he believed they would be better off and happier with him, and
they wanted to come home with him.
Father wanted the girls returned to him.
Father admitted missing visits in January and March, but claimed this
was due to miscommunication, as he did not have an established schedule for
visits. Father explained that the R.s
had a calendar from the previous year, so when he showed up for visits, they
claimed the visit was the week before.
His social worker admitted there was a misunderstanding and said she
would make a schedule, but he never received one.
Andrea testified that she and
father had married and lived together for five years, along with her four
teenage children. Andrea felt like she
knew the girls well and had a good relationship with both of them. Andrea confirmed the two missed visits were
due to misunderstandings with the R.s about the visitation schedule.
Father recalled Simental, who
confirmed that in the section 366.26 report she had recommended father’s visits
be increased to twice monthly unsupervised visits, with discretion for liberal
visits, which would include overnight and extended day visits. She recommended the increased visits because
visits were going well, the girls told her they wanted more visits, and father
had been visiting consistently. The
previous social worker had requested that father’s visits be reduced because
father had missed a significant number of visits. Simental heard father’s testimony about the
missed visits and agreed there was a scheduling problem. If the court ordered guardianship to
continue, Simental had no reason to change her prior recommendation for
increased visitation. Simental
understood that the visits father missed between March and July 2011 were due
to transportation issues father was having.
From August 2011 to July 2012, father had missed two visits.
Father’s attorney argued the only
reason the Department changed its recommendation was the second bonding study,
to which the court should not give very much, if any, weight. He argued there were three deficiencies in
the second bonding study (1) Ormonde’s lack of experience, (2) the amount of
time she spent on the study, and (3) that her conclusions were to the ultimate
questions of fact and law the juvenile court was to answer. For these reasons, he urged the court to not
consider the second bonding study. He
asked the court to maintain the legal guardianship, which would give father an
opportunity to try to have the case returned to family reunification; if
reunification failed, then the court could “draw[] the line.†Father’s attorney asserted the girls’ desire
to maintain their relationship with father, with whom they had a strong bond as
shown by the 2009 bonding study, outweighed the benefit and permanency that
would come from adoption.
Mother’s attorney also argued
against termination of parental rights.
She further argued there was a significant attachment between father and
the girls, pointed out the weaknesses in the second bonding study, and asked
the court to continue the girls’ relationship with father. The girls’ attorney asserted that neither
girl wanted to give up contact with father and, based on their testimony, he
thought their best interests were served by reunifying them with father. He believed the bond between father and the
girls was a strong one and more beneficial to the girls than the permanency
provided by adoption.
County counsel admitted there was
an attachment between the girls and father.
He argued, however, that the second bonding study showed they did not
have a parent/child relationship, and when considered with the evidence the
girls were having clinical problems, showed that adoption outweighed any
benefit from a continued relationship with father. The R.s’ attorney asserted the court must
find the girls’ wellbeing would be best served by a permanent plan, and while
there may be a positive, beneficial bond between the girls and father, that
bond was not so strong as to outweigh the preference of permanence and
stability.
After hearing the parties’
arguments, the juvenile court took the matter under submission. In its oral ruling the following day, the
juvenile court explained that there was clear and convincing evidence the girls
were adoptable, therefore parental rights should be terminated unless an
exception to termination applied, namely where the parents have maintained
regular visitation and contact with the child, and the child would benefit from
continuing the relationship. The
juvenile court found father had satisfied the first prong of the exception, as
he maintained regular visitation and contact with the girls. Turning to the second prong, the juvenile
court stated that to find in father’s favor, it had to find the parent/child
relationship promoted the child’s wellbeing to such a degree that it outweighed
the wellbeing the child would gain in a permanent home with adoptive
parents. The juvenile court found that
father had not met his burden. While it
was clear to the court father had worked very hard to restore his life, it
could not escape the fact that for a significant percentage of the girls’
lives, longer than father had custody of them, the R.s had been their
parents. Given the considerable burden
he bore to show that he had a parental bond with the girls, he had not met that
burden. Accordingly, the court
“reluctantly†adopted the Department’s recommendation for adoption, noting that
the girls, and Mercedes in particular, really cared about him. The court found the girls were likely to be
adopted, terminated parental rights, and ordered the girls placed for adoption.
DISCUSSION
Father
reiterates his argument to the juvenile court, namely that termination of his
rights would be detrimental to the girls.
He claims the record supports such a finding under section 366.26,
subdivision (c)(1)(B)(i) based on his regular visitation and contact with the
girls, and their bond with him. He also
claims the juvenile court erred when it admitted the second bonding study into
evidence.
The purpose of a section 366.26 hearing is to select and implement a
permanent plan for the dependent child.
(In re S.B. (2009) 46 Cal.4th 529, 532.) The Legislature’s preferred permanent plan is
adoption. (In re D.M. (2012) 205
Cal.App.4th 283, 290.) “At a section
366.26 hearing, the court must terminate parental rights and free the child for
adoption if [1] it determines by clear and convincing evidence the child is
adoptable within a reasonable time, and [2] the parents have not shown that
termination of parental rights would be detrimental to the child under any of
the statutory exceptions to adoption found in section 366.26, subdivision
(c)(1)(B)(i) through (vi). (§ 366.26,
subd. (c)(1).)†(In re D.M., supra,
205 Cal.App.4th at p. 290.)
In this case, father does not dispute that the girls are adoptable; he
contends only that the parent-child relationship exception applies. (§ 366.26, subd. (c)(1)(B)(i).)
To avoid termination of parental rights under the parent-child
relationship exception, the juvenile court must find “a compelling reason for
determining that termination would be detrimental to the child†due to the
circumstance that “[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).) It is the parent’s burden
to prove the exception applies. (In
re Autumn H. (1994) 27
Cal.App.4th 567, 574 (Autumn H.).)
The Court of Appeal in Autumn
H. defined a beneficial
parent/child relationship as 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.â€
(Id. at p. 575.) “[T]he
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. 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.†(Ibid.)
A parent must show more than frequent and loving contact or pleasant
visits for the exception to apply. (In
re C.F. (2011) 193 Cal.App.4th 549, 555; In re C.B. (2010) 190
Cal.App.4th 102, 126; In re I.W. (2009) 180 Cal.App.4th 1517,
1527.) “The parent must show he or she
occupies a parental role in the child’s life, resulting in a significant,
positive, emotional attachment between child and parent. [Citations.]
Further, to establish the section 366.26, subdivision (c)(1)(B)(i)
exception the parent must show the child would suffer detriment if his or her
relationship with the parent were terminated.†(In re C.F., supra, at p.
555.)
There is a split of authority concerning the standard of review in this
context. (See In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314–1315 and In re K.P. (2012) 203
Cal.App.4th 614, 621–622 [hybrid combination of substantial evidence and abuse
of discretion standards; applying substantial evidence test to determination of
the existence of a beneficial sibling relationship and the abuse of discretion
test to issue of whether that relationship constitutes a compelling reason for
determining that termination would be detrimental to the child]; Autumn H., supra, 27 Cal.App.4th at p.
576 [substantial evidence test—“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
orderâ€]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine
D.) [abuse of discretion test].)
Father argues the substantial evidence standard of review applies, while
the Department asserts review is for abuse of discretion.
Our conclusion in this case would be the same under any of these
standards because the practical differences between the standards are “not
significant,†as they all give deference to the juvenile court’s judgment. (See Jasmine D., supra, 78 Cal.App.4th
at p. 1351.) “‘[E]valuating the factual
basis for an exercise of discretion is similar to analyzing the sufficiency of
the evidence for the ruling. . . . Broad deference must be shown to the trial
judge. The reviewing court should
interfere only “‘if [it] find[s] that under all the evidence, viewed most
favorably in support of the trial court’s action, no judge could reasonably
have made the order that he [or she] did.’ . . . â€â€™â€ (Id. at
p. 1351.) Moreover, a substantial
evidence challenge to the juvenile court’s failure to find a beneficial
relationship cannot succeed unless the undisputed facts establish the existence
of a beneficial parental relationship, since such a challenge amounts to a
contention that the “undisputed facts lead to only one conclusion.†(In re
I.W., supra, 180 Cal.App.4th at
p. 1529; Bailey J.,
In this case, it is undisputed father maintained regular visitation and
contact with the girls. The juvenile
court, however, found that father had not met his burden of proving that the
girls would benefit from continuing their relationship with him, as he had not
shown that relationship promoted the girls’ wellbeing to such a degree that it
outweighed the wellbeing the girls would gain in a permanent home with new
adoptive parents. Father contends the
juvenile court erred in so finding, because the evidence showed the girls were
bonded to him and he acted in a parental role when he was with them, and
throughout the proceedings, the Department and juvenile court both found the
girls’ bond with him to be so substantial that termination of parental rights
would be detrimental to them. He argues
this evidence shows the girls had a substantial, positive, emotional attachment
to him.
Father, however, ignores the other evidence that supports the juvenile
court’s decision. The girls certainly
were bonded to him, as they enjoyed visiting him, wanted to continue to visit,
and at least Mercedes wanted to live with him.
But visits also had a negative effect on the girls. Their 2010 mental health assessments show
they were torn between the R.s and father, and their behaviors worsened after
visits with him. There was evidence that
father and Andrea engaged in inappropriate behavior during visits that
distressed the girls, such as yelling in front of them, using profanity towards
one of them, and speaking badly about the R.s.
These problems were recognized when father’s visits were reduced to once
per month in 2011.
By January 2011, Alexandria had developed symptoms of anxiety, worry,
sadness and withdrawal, which needed to be addressed in therapy. While she had difficulty transitioning back
to the R.s following visits with father, her behavior stabilized when father
missed several months of visits in 2011.
Significantly, there was no evidence that the lack of contact during
this period greatly harmed either girl.
Although the girls told the social worker at the end of 2011 that they
wanted to live with father and did not want to be adopted, there is evidence
that father’s inappropriate behavior continued during visits, such as father
and Andrea yelling at Alexandria not to hug the R.s because they are not her
parents, and that visits continued to negatively affect both girls when they
returned to the R.s’ care. By 2012,
Alexandria still required therapy to address her clinical problems and Mercedes
also needed further psychological evaluation and possible therapy. In the 2012 bonding study, Ormonde reported
that when the girls described their feelings about missing visits with their
parents, they both shrugged and stated that while they were sad, it usually
meant they got to participate in other events.
At the hearing, Alexandria testified she wanted to be adopted. While Mercedes testified she did not want to
be adopted, the parties and the juvenile court all recognized at the hearing
that the girls had a sibling bond that should not be broken.
Given the emotional problems the girls were having following visits
with father and the stability they experienced while in the R.s’ care, the
juvenile court reasonably could find, as it did, that the girls’ need for
permanence outweighed the benefits they would derive from a continued
relationship with father. It also could
find that severing the girls’ relationship with father would not deprive them
of a substantial, positive emotional attachment that would greatly harm the
girls.
Father contends the only evidence that supports the juvenile court’s
decision is the 2012 bonding study, which the juvenile court erroneously
admitted into evidence. He asserts the
2012 study was inadmissible because the person who conducted the study and
authored the report, Ormonde, was not qualified to give an expert opinion as
she was only an intern and not a
this issue because he failed to object to admission of the 2012 bonding study
before the juvenile court. We agree with
the Department.
The record shows that father did not lodge any type of objection to the
2012 bonding study’s admissibility, and therefore may not claim on this appeal
that the bonding study was inadmissible.
(Evid. Code, § 353.) Moreover,
the 2012 bonding study was not required for the juvenile court to reach its
conclusions at the section 366.26 hearing.
(In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1339.) Father’s
criticisms of the 2012 bonding study amount to nothing more than an invitation
for this court to reweigh the bonding study’s worth in the decision-making
process. That is not our function as a
reviewing court. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Father contends this case is like In
re S.B. (2008) 164 Cal.App.4th 289, in which the Court of Appeal concluded
the beneficial relationship exception does not require the parent to prove that
the child has a “‘primary attachment’†to the parent or that they have
maintained day-to-day contact; instead, the exception may apply when the child
has a “‘substantial, positive emotional attachment’†to the parent. (Id. at p. 299.) The father in S.B.
had loving, “regular, consistent and appropriate visits†with the child, and
consistently put her needs ahead of his own.
When the child was removed from his care, he started services,
maintained his sobriety, sought services, and complied with every aspect of his
case plan. (Id. at p. 298 .) On the record before it, the Court of Appeal
concluded that the “only reasonable inference†was that the child “would be
greatly harmed by the loss of her significant, positive relationship†with the
father. (Id. at p. 301.)
The same cannot be said here.
While we recognize that father’s visits went well and he shared a loving
relationship with the girls, the girls were having emotional difficulty dealing
with the visits. Moreover, there is
evidence that shows father and Andrea did not act appropriately during visits,
which created emotional conflicts for the girls. On the entire record, we cannot say that no
judge reasonably could have made the decision made here, i.e. that father
failed to prove the girls would benefit from continuing their relationship with
him; neither can we say that the undisputed facts lead to only one
conclusion. Accordingly, we have no
choice but to affirm the juvenile court’s order.
DISPOSITION
The order terminating parental
rights is affirmed.
_____________________
Gomes, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Cornell, J.
Welfare and Institutions Code.
denying mother reunification services in an unpublished opinion,
