In re S.M.

Filed 8/6/08 In re S.M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Caryl A. Lee, Judge. Affirmed.

Michelle L. Jarvis, under appointment by the Court of Appeal, and Lawrence A. Aufill for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Rebecca Leeds, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Jan M., mother of S.M., appeals from the judgment of the juvenile court terminating her parental rights. She claims the court abused its discretion by refusing to grant her an evidentiary hearing on her petition under Welfare and Institutions Code section 388^[1]because she made a prima facie showing of changed circumstances. She also claims the court should have refused to terminate parental rights because she maintained regular contact with S.M. and their relationship outweighs the benefits of adoption. We find no error and affirm the judgment.

FACTS

Six-year-old S.M. was detained by the Orange County Social Services Agency (SSA) in November 2005. His mother, Jan M., had left the child in the care of H.K., a former neighbor and family friend, but H.K. was one and one-half hours late to pick S.M. up from school. By this time, the police had been called. H.K. told them he could no longer take care of the child and that the mother had mental problems. The mother, who was transient, could not be found for several days. S.M. was placed with his adult half sister, Summer, and her husband, Nick. His paternal stepgrandmother, Rosa, provided childcare for him after school.

The mothers family and friends reported that she was often delusional and hyper. Her relatives all seem to want her to get help for her mental health issues, and they voice hope that she will do much better if she is willing to accept mental health treatment. The social worker was not sure whether she suffered from mental illness or was abusing stimulants which are causing mental health problems. Paranoid delusions, from which the childs mother appears to suffer, can be caused by stimulant abuse. H.K. reported the mother and child had lived with him, off and on, for six and a half years, usually when they had no other place to go. He often babysat S.M. and purchased food and diapers for him. H.K. said he thought she was abusing drugs, specifically methamphetamine, although he said the mothers ex-husband . . . had said the mother had been using cocaine when she was married to him. The social worker referred the mother to substance abuse testing, individual therapy, a parenting class, and assistance with and evaluation of mental health problems.

The jurisdiction hearing was repeatedly continued. In the meantime, the mothers paranoid delusions continued. She left rambling, demanding messages on the voicemail of the [social worker] and offensive and angry lengthy voicemail messages with Summer and Rosa. Summer reported that her mothers aggressive behavior has alienated all of the . . . relatives. At the suggestion of the social worker, Summer and Nick began counseling to learn how to deal with the childs mother . . . . H.K. was also the subject of the mothers anger, and she now considered him to be her enemy. H.K. was cleared for unmonitored contact with S.M., and they spent a fair amount of time together.

The mother refused to participate in regular substance abuse testing or meet with the social worker. She attended therapy regularly, although she does not appear to be making much progress in it. She remains totally defended against the idea that she may have any parenting shortcomings or personal problems, preferring to accuse others of attacking her or conspiring to separate her from her child. She attended monitored visits with S.M. once or twice a week.

The juvenile court sustained a dependency petition in July 2006 alleging that S.M. suffered from abuse and neglect ( 300, subd. (b)). The petition stated that the mother had a history of mental instability, which is an unresolved problem that interferes with her ability to adequately supervise, parent or protect the child and had received voluntary services from SSA twice before, but to no avail. The mother was ordered to participate in a case plan which required her to attend counseling, a psychiatric examination, parenting education, and twice weekly substance abuse testing. The court found it would be detrimental to return S.M. to his mothers custody. It ordered the mother to undergo a psychological evaluation by Dr. Ted Greenzang under Evidence Code section 730.

The combined six and 12-month review hearing was held in February 2007. Dr. Greenzang submitted his report and found the mother had [p]ossible bipolar disorder and narcissistic and paranoid personality traits. Dr. Greenzang stated there was a strong possibility that [the mother] is manifesting a mental disorder associated with emotional lability, mood swings, and paranoia which interferes with her parenting capacity. He recommended the enforcement of regular drug testing and ongoing psychiatric treatment. He felt mood stabilizing medication would be beneficial. SSA reported that although the mother denied any problems, she participated in her individual therapy plan and had started taking prescribed medication in January 2007.

S.M. liked to visit with his mother and often said he wanted to live with her. But the mother did not take full advantage of the visitation that she is currently allowed. [She] frequently arrives late to her visits. On occasion, [the mother] has ended the visits early and has sometimes cancelled the visits. On occasion, she has cancelled visits even after the child was already at the visitation site waiting for her. The court ordered six more months of reunification services, providing that if the mother obtains the drug patch and tests negative for illegal substances, she is to receive unmonitored visits with the minor.

S.M. told the social worker he did not want unmonitored visits because he does not want to ride in the car with his mother when she is angry. Notwithstanding, unmonitored visits began in March 2007. They generally went well, although the mother was often late picking S.M. up and dropping him off. S.M. was somewhat agitated after prolonged visits with the mother. [O]n one occasion, [S.M.] put a scissors to his throat and was crying and yelling and said, No one loves me. The juvenile court ordered S.M. to undergo a psychological evaluation under Evidence Code section 730. The mother and S.M. began conjoint counseling in April 2007 with Pam Kaufman, who had been the mothers individual therapist for over one year. S.M. resumed individual therapy, also with Kaufman as the therapist.

SSA reported in May 2007 that hostilities between the mother and S.M.s caretakers continued to escalate. Summer, Nick, and Rosa all refused to have anything to do with the mother due to her harassing voice messages and negative and accusatory statements about them. S.M. was clearly ambivalent about returning to his mothers care because he feels unsafe with her, sometimes when she gets really angry and says bad words. He and the mother were visiting twice a week, generally eight hours on the weekend and three to four hours during the week. S.M. did not want his visits increased. He told the social worker [M]y mom lies. She says that it was [H.K.]s fault that I got taken away and that it is everyone elses fault but hers. He worried he would lose contact with his caretakers and H.K. if he returned to his mother. Health care professionals suspected the mother suffered from an undiagnosed mental illness. She functioned better when on medication, and she admitted she felt better when taking it, but she was resistant to it. The social worker reported, The mother appears to exhibit significant underlying fear over receiving a mental health diagnosis, somehow perceiving that it may keep her child from being returned to her. By June 2007, the social worker was recommending termination of services and adoption of S.M. by Summer and Nick.

Unfortunately, Summer and Nick separated in late June; Summer moved in with her maternal aunt and uncle, and S.M. was placed with Rosa. The social worker reported, Once the mother found out about this change of placement, she lost control of her behavior and began making telephone calls to everyone involved in the case. These telephone calls lasted throughout the night of July 2-3, 2007, and continued thereafter. The aunt and uncle were not willing to adopt S.M. because of the mothers behavior. Rosa was only willing to care for [him] as long as she can obtain a restraining order against the mother . . . . The mother was inconsistent with her medication, and the social worker thought she might be using alcohol. One drug test was positive for alcohol; almost 30 percent were either diluted or rejected due to insufficient volume. Furthermore, approximately 50 percent of the tests were rescheduled, resulting in same day tests.

By the time of the 18-month review hearing, held in September 2007, the mother had another positive test for alcohol and several more diluted tests. She had called S.M. at his summer program, and a staff person reported S.M. began crying during the conversation. By the end of the phone call, he was crying so hard that he was shaking. S.M.s section 730 evaluator, Dr. Marsha Hewlett, opined that returning him to his mothers care would be unwise and may be emotionally detrimental due to her unstable mental condition. She felt S.M. said he wanted to return to his mother only because he did not want to hurt her.

S.M. testified he liked living with Rosa. His visits with the mother were good; they went to the movies or the beach or the pool, or we just stay home and I can play with video games and she can just rest. He said he would feel happy if he were returned to his mothers care. The social worker testified the mother insisted she would go off her medication if S.M. were returned to her because she would no longer be stressed. He worried that the mother was not in control of her own emotions based on her behaviors and her statements to me, our phone conversations, the way that she interacts with her own family, and some of the statements that she has reportedly made to [S.M.]. The social worker did not recommend returning S.M. to the mothers custody. The juvenile court terminated reunification services and set a permanent plan selection hearing; however, it ordered funding for continued drug tests for the mother and continued conjoint therapy as long as she continued to test clean.

SSA prepared several reports for the permanent plan selection hearing, ultimately held on January 30, 2008. The social worker reported the mother stopped drug testing in October 2007, so the conjoint therapy with Kaufman stopped also. In November, the mothers visits with S.M. were changed to monitored and reduced to one hour a week due to concerns regarding the childs behaviors of defiance and anxiety upon his return from unmonitored visits. Rosa reported that S.M. was doing better with the reduced and monitored visits. Its like night and day. Once the monitor was imposed, however, the mothers visits became inconsistent. In mid-January 2008, S.M. and Rosa ran into the mother at a McDonalds just before their visit. The mother told him that she would be over for the visit soon and then did not show up.

S.M. resumed individual counseling in December 2007, this time with Dr. Jeanne Haislett as his therapist. He told his therapist he would like to stay with Rosa if he could not live with his mother. The therapist felt this was the best place for him because from the information she has received from [S.M.], the mother is not mentally well enough for [S.M.] to live with her. The mother continued to blame her family members, SSA and everyone else involved in the case for conspiring against her to remove S.M. from her care. She told the social worker, If I had issues I could see that, but I have none.

The mother filed a section 388 petition on January 15, 2008, seeking to have S.M. returned to her care with family maintenance services. She declared she had participated in conjoint counseling until it was terminated by SSA, she completed a parenting class, and she had never been diagnosed with an actual DSV-IV personality disorder. She was able to parent S.M. during her unmonitored visitation. I usually saw [S.M.] after school on Tuesdays, and I had a minimum of eight hour visits with [S.M.] on both Saturdays and Sundays. In November, SSA changed the schedule to one hour a week, monitored. The mother declared she had maintained the same residence for one year, she had been working at one job for eight months and two jobs for three months, and she had a support system comprised of a friend and her former therapist, Kaufman. She claimed she and S.M. have a strong bond, and he would be emotional[ly] damaged if he never saw me again. The mother attached a letter from Kaufman dated January 5, 2008, in which she stated she provided conjoint counseling to S.M. and the mother for seven months. In my assessment, [S.M.] and [the mother] appear to have a strong mother/child bond . . . .  

The juvenile court found there was not a prima facie case that circumstances had changed since September 2007, when the court terminated reunification services after it found it could not return S.M. to the mothers care. There was evidence that the mother suffered from a mental health disorder and that she was resistant to treatment; there was also evidence that testing for alcohol and drugs was a necessary component of putting mother on track. The mother refused to drug test, thereby bringing the conjoint therapy to an end. There clearly isnt an option for mother to pick and choose which things she would like to do or believe that she needs to do in order to satisfy the court that [S.M.] can go home with her. The court also found returning S.M. to his mother would not be in his best interests because there were recent reports of her instability and lack of ability to provide S.M. with a stable home.

The court proceeded with the permanent plan selection hearing, taking testimony from S.M., the current social worker, the mother, and Kaufman. S.M. testified he would like to live with his mom rather than being adopted. Visiting her was important to him, and he would be sad if he could not visit with her. He would also be sad if he could no longer see Rosa or Summer. S.M. testified he was never upset or angry after visits with his mother and he never heard her yell. The social worker testified she changed the visits from unmonitored to monitored in reliance on the statements of relatives that S.M. was angry and agitated for hours after unmonitored visits. Kaufman testified she saw the mother and S.M. for 16 conjoint sessions. She felt they had a strong bond that increased over the months she saw them. In her opinion, the mother occupied a parental role by setting boundaries for S.M. and showing interest in his activities. He, in turn, showed interest in her life. They were physically affectionate with each other. Kaufman believed that any time you remove a mother from a childs life there is an emotional impact, therefore it would be detrimental to S.M. if he lost contact with the mother.

The court found S.M. was adoptable and that adoption outweighed the benefit of his relationship with his mother. It found her visits were not regular or consistent even though she was facing a permanency hearing and had the opportunity to convince the court, pursuant to her 388, that things are different. . . .  [] It was even more easy for her to make the visitation [when it became monitored] and yet [she was] late or missed visitation. And that finally culminating with what the court is going to refer to as the McDonalds incident . . . . The court questioned the mothers devotion . . . to the relationship with S.M. because she did not take advantage of the opportunity to strengthen their bond by continuing to test and participate in counseling after the last hearing. It found the mother needed to manage her mental health condition with medication to benefit the child, but the mother refused to do so. In the face of all of the stressors, the mother has simply resisted taking responsibility for many of the things that could be remedied. . . .  [T]he involvement of [SSA] and the assistance that has been offered by the court and by [SSA] has been resisted and simply not taken advantage of.

DISCUSSION

The mother first contends the juvenile court erred in failing to grant her an evidentiary hearing on her section 388 petition, claiming she presented a prima facie case of changed circumstances and that S.M.s best interests would be served by returning him to her custody. We disagree.

Section 388 allows a parent to petition the juvenile court to change or modify a previous order upon grounds of change of circumstance or new evidence. ( 388, subd. (a).) The court must hold a hearing on the petition only [i]f it appears that the best interests of the child may be promoted by the proposed change of order. . . . ( 388, subd. (c).) Thus, the petition must state a prima facie case of both changed circumstances and best interests of the child. The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

Although the petition should be liberally construed in favor of granting a hearing (In re Mary G. (2007) 151 Cal.App.4th 184, 205), the juvenile court need not put blinders on when determining whether the required showing has been made. Rather, the court can consider the entire factual and procedural history of the case when evaluating the significance and strength of the allegations in the petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.) Allegations of changing, rather than changed, circumstances are not sufficient to warrant a hearing. (See In re Casey D. (1999) 70 Cal.App.4th 38, 49.) We review the trial courts decision to deny a hearing for an abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

The mother failed to allege significantly changed circumstances since the September hearing when reunification services were terminated. She was attending individual counseling and conjoint therapy and had already completed a parenting class before the September hearing. She had added a second job. Other changes were negative: Her visitation had been decreased due to S.M.s emotional problems, and she stopped drug testing, so the conjoint therapy was also stopped. Furthermore, there was no credible evidence of S.M.s best interests. Neither his therapist nor Kaufman recommended his return to the mothers custody. Although S.M. testified he wanted to live with his mother, he also enjoyed living with Rosa and visiting his other family members.

The mother next argues the court erred in failing to apply the beneficial relationship exception so as to obviate the termination of parental rights. Again, we disagree.

At the permanent plan selection hearing, the juvenile court will ordinarily terminate parental rights if it finds by clear and convincing evidence that the child is adoptable. The termination of parental rights to an adoptable child can be avoided, however, if the court finds a compelling reason for determining that termination would be detrimental to the child due to at least one of several statutorily-described circumstances. ( 366.26, subds. (c)(1)(B)(i)-(iv).) The so-called beneficial relationship exception describes circumstances where [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).)

The court found the mother had not maintained regular visitation and contact because she started missing visits with S.M. after they became monitored. The court was especially influenced by the mothers disregard for S.M.s feelings when she did not show up for visits where he was waiting for her. Furthermore, there was substantial evidence in the record to support the conclusion that maintaining a relationship with the mother would not be good for S.M. Even though he loved her and enjoyed being with her, she was either unwilling or unable to control her behavior so as to meet his needs. His documented adverse reactions after long visits, his disappointment when she failed to show up for visits, and his discomfort with the tension between his mother and his other family members all support the courts decision.

The mother cites the recent case of In re S.B. (2008) 164 Cal.App.4th 289 to support her contention that the termination of parental rights must be reversed. In S.B., a young girl was made a dependent of the juvenile court due to her parents substance abuse. The father fully complied with his case plan, including maintaining sobriety and visiting his daughter three days a week. But he suffered from physical and emotional injuries incurred during his service in the Vietnam War and was not able to care for her full time. He argued the beneficial relationship exception should prevent the termination of his parental rights and allow him to maintain a relationship with her.

The juvenile court found the father maintained frequent and loving contact with his daughter and they had an emotionally significant relationship. It also recognized the child would benefit from continuing her relationship with him. But it found the relationship was not parental because the child looked to her grandmother, with whom she lived, for day-to-day nurturing and stability; accordingly, it found the beneficial relationship exception did not apply and terminated parental rights. The appellate court reversed, holding that the beneficial relationship exception did not require day-to-day contact between the parent and child or that the childs primary attachment be to the parent. [The father] maintained a parental relationship with [his daughter] through consistent contact and visitation. His devotion to [her] was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health. The record shows [the daughter] loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that [the daughter] would be greatly harmed by the loss of her significant, positive relationship with [the father]. (In re S.B., supra, 164 Cal.App.4th at pp. 300-301.)

Here, the juvenile court found the mother had not maintained regular visitation and contact, nor had she complied with her case plan. There was no consensus, as there was in S.B., that continuing the relationship would be beneficial to S.M. Although Kaufman testified it would be detrimental to S.M. to lose contact with his mother, there was evidence that S.M. was much happier and calmer after his visits with the mother were drastically reduced and a monitor was imposed.

In order to prove that the benefit exception applies, a parent must overcome the strong statutory presumption in favor of adoption and show the relationship between her and the child is so beneficial that it renders the termination of parental rights detrimental to the child. (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) It is not the role of this court to reweigh the evidence or substitute our judgment for that of the juvenile court. Under the substantial evidence rule, we must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.] (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) The juvenile court was entitled to infer that S.M. would benefit more from the permanence and stability of adoption than the continuance of his relationship with the mother.

DISPOSITION

The judgment terminating parental rights is affirmed.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1]All statutory references are to the Welfare and Institutions Code unless otherwise specified.