In re Cherish T.

Filed 10/23/07 In re Cherish T. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Cindy T. appeals from orders terminating parental rights (Welf. & Inst. Code  366.26) to her children, 11-year-old Cherish and 1-year-old Michael.^[1] She contends the evidence overwhelmingly demonstrated she and Cherish had a beneficial relationship such that termination was detrimental to the child. On review, we conclude the superior court did not abuse its discretion. We therefore will affirm.

PROCEDURAL AND FACTUAL HISTORY

In 2003, the Stanislaus County Superior Court adjudged then seven-year-old Cherish a dependent child and removed her from parental custody. ( 361.) The court previously determined Cherish came within its jurisdiction due to the parents neglect, underlying substance abuse, and incarcerated status ( 300, subds. (b) & (g)). The court ordered reunification services for appellant, although it denied services for the father ( 361.5, subd. (e) [services for an incarcerated parent would not be in the childs best interests]). A year later, the agency placed Cherish with appellant on a trial visit basis. After approximately 18 months of services, appellant made sufficient progress that the court in October 2004 returned Cherish to appellants custody with family maintenance services.

Months later, the father was released from prison and resumed living with appellant and Cherish. Around the same time, appellant once again began testing positive for controlled substances. Under those circumstances, the court continued Cherishs dependency and ordered a reunification plan for the father. Additional services were made available to appellant, especially when it was learned she was pregnant. The court warned her in the fall of 2005 that if her baby tested positive for drugs it was likely the baby would be removed from her custody. Appellant delivered a drug-free baby, Michael, in December 2005.

In January 2006, the familys social worker told the couple she intended to recommend that the court dismiss Cherishs dependency. In appellants own words, that news scared [her] to death and she resumed using drugs, including methamphetamine. Appellant described herself as a hopeless drug fiend and acknowledged she needed help. The father also continued to abuse drugs. He too acknowledged the seriousness of his situation.

Respondent Stanislaus County Community Services Agency (the agency) agreed to one final attempt at services for the parents provided the parents entered in-patient drug treatment and the children stayed with a relative. The parents agreed. They successfully completed their in-patient programs in March 2006; the children returned to their home. However, other serious issues, including the fathers problems with anger management and the couples domestic violence, emerged. In addition, the parents were unable to remain clean and did not regularly participate in recommended outpatient drug treatment.

The parents substance abuse and domestic violence persisted to the point that, in late July 2006, the agency detained both children and placed them in a foster home where they have since remained. Based on these circumstances and the continued risk of harm to the children, the agency filed a supplemental petition ( 387) in Cherishs case and an original petition ( 300) as to Michael.

Days later, additional concerns emerged regarding appellants emotional stability. Local police brought appellant to a behavioral health center for a 72-hour hold after receiving a call from her adult daughter. Appellant had reported she was depressed and had recently cut herself. She had written a good-bye letter for the younger children and expressed a desire to be cremated. While hospitalized, appellant was diagnosed with major depression.

In late August 2006, the parents waived their rights and submitted on the agencys new petitions. The court determined the petitions allegations were true and sustained them. At a September 2006 dispositional hearing, the court formally removed both children from the parents custody and denied each parent further reunification services. Having done so, the court also set a section 366.26 hearing to select and implement a permanent plan for the children. The court granted appellants request for a bonding study with regards to Cherish; it denied a similar request as to Michael.

In advance of the section 366.26 hearing, Patricia Tout, an agency social worker who had worked with the family since 2003, prepared a 366.26 WIC Report in which she recommended the court find the children adoptable and terminate parental rights. The childrens foster mother was committed to providing them with a permanent, loving and stable home through legal adoption. Their interaction with her was that of a child and their parent. The social worker added:

It is clear that adoption will benefit Michael. He was less than eight months old at the time of removal and has bonded with his caretaker. It is also clear that adoption would benefit Cherish as well. It is the opinion of the undersigned, based on the lack of consistent visitation by the parents and their apparent lack of interest in maintaining regular contact, that it would be a disservice to Cherish to deprive her of a stable permanent adoptive home on the slim chance that her parents would visit her once a month.

The parents maintained weekly visits with the children for approximately one month following their removal in July 2006. Thereafter, the parents either cancelled scheduled visits or no showed. At most, the parents saw Cherish in December 2006 as part of the bonding study. The parents pattern of canceling or not showing up for scheduled visits was upsetting for Cherish and left her sad and worried. The agency did not recommend further visitation between the children and their parents.

While there was no question that Michaels best interests would be served by a permanent plan of adoption, Tout acknowledged it was less clear what was the best permanent plan for Cherish. It was evident Cherish was bonded to her parents. She spent the majority of her life with them and loved them. However, the parents commitment to her was questionable.

Despite years of services, the parents were unable to put Cherish above their drug and alcohol abuse. While in their care, Cherish was neglected. Her school attendance was inconsistent and her academic achievement lacking. She never had her glasses, prescribed to correct a lazy eye problem. Her clothes were always dirty and stained. A poor diet full of sugar and fat left her overweight.

There was also no apparent commitment on the parents part to maintain any relationship with Cherish since the summer of 2006. Although appellant eventually attended two sessions for the bonding study and the father attended one session and saw Cherish in the process, even that was problematic. The parents missed their first bonding study appointment. On the next scheduled appointment date, December 11, 2006, an agency driver picked up Cherish first and then drove to the parents home. When no one answered the door, Cherish went inside and found her parents still in bed with a black, glass pipe next to her father. At some time, appellant came out but the father did not. On a date set for another scheduled bonding study appointment, the father was reluctant to attend.

Cherish meanwhile had a difficult time accepting the fact she would not return to live with her parents. Barry Olson, the psychologist who conducted the bonding study, as well as the foster mother, and Tout observed that Cherish refused to acknowledge she would not be living with her parents. In an effort to assist Cherish, Tout spoke with appellant in early December about helping Cherish come to terms with the reality of her situation. The hope was if Cherish could hear from appellant she (Cherish) was not going to live with her parents, the child could begin to adjust and no longer hang on to her unrealistic hope.

Appellant agreed to talk to Cherish. However, she did not help the child come to terms with her situation. Instead, appellant did just the opposite. She told the child on the date of the December 11th bonding study appointment that: her father had a room ready for her when she came home; the social worker was a liar and had lied to the judge that they beat and starved Cherish; and Cherish would be split away from her brother. Appellant also told Cherish her father was going to hurt Tout and do terrible things to her for taking Cherish away from them. Tout discovered this when, after the December 11th appointment, Cherish was so angry at her social worker that the child asked the agency driver to relay messages to Tout. Tout responded by meeting with the child and learning from her what had happened.

It was Touts opinion that continued contact with the parents was unlikely to occur given the lack of visitation over the preceding five months. Even if there was contact, it was unlikely it would be positive or appropriate given this recent experience. The social worker concluded it was unfair to deprive Cherish of a permanent adoptive home with her brother to preserve a relationship with parents who had not demonstrated a commitment to her or made her a priority in their lives.

As the social worker wrote her report, psychologist Olson concluded his bonding study. Notably, the last agency report he reviewed was the disposition report from the summer of 2006. During his interview with Cherish, she said she was completely unaware of the reasons for her removal from her parents custody and had no current recollection of any problems her parents experienced. She acknowledged that her father occasionally drank excessively, but added that her parents took good care of her. Although she said she was doing alright with her foster mother, she wanted to return to her parents custody even though her social worker told her this was not possible. Cherish liked her visits very much.

In his later interview of Cherish and appellant, Olson observed that both indicated . . . they were disappointed that they could not live together. In the sessions with her parents, Cherish was very warm and responsive to their attention.

Under the report heading, SUMMARY AND RECOMMENDATIONS, Olson observed Cherish was quite bonded to her parents. He recommended she continue to have contact with her birth parents as the detriment posed by termination of parental rights is greater than any benefit from termination of those rights and subsequent adoption.

Approximately two months after Tout wrote her report and Olson wrote his, the court conducted its section 366.26 hearing. Cherish attended the February 2007 hearing along with her attorney, Robert Chase. At the hearings start, Chase informed the court that he spoke with Cherish. According to Chase, Cherish was very close with her mother but would prefer the permanence of adoption, as opposed to the alternatives of legal guardianship and long-term foster care.

Attorneys for the parents objected to Chases proffer without Cherish taking the stand; they added neither of them had subpoenaed her. Chase responded he requested her presence to make certain her desires were known and so that he could evaluate what was in her best interest. The court acknowledged, among the statutory responsibilities ( 317, subd. (e)) of a childs counsel, was a duty to interview the child to determine her wishes and to assess the childs well being. However, the court was not considering Chases statement as evidence, but rather as Mr. Chases opinion -- sort of a closing statement, his opinion as to the direction the Court should take.

Chase then reiterated that Cherish did not really want the alternatives to adoption. He also fully advised Cherish that in the event of adoption, she might not be able to maintain contact with appellant. He made her very much aware there was no guarantee the adopting parent would consent whereas with the other two alternatives she could have guaranteed contact with her parents.

Following attorney Chases remarks, the court heard testimony from Tout and Cherish.

Tout testified, in relevant part to this appeal, the parents had not visited with either of the children since the time she wrote her report. They neither called nor showed up for a scheduled visit in January.

Cherish testified she would like to maintain contact with her parents. She also understood contact and visitation might not be possible if she were adopted. However, even if she could not be guaranteed contact with her parents, she wished to be adopted instead of having legal guardianship or foster case as her permanent plan.

According to Cherish, her attorney explained what it meant to be adopted, including the fact she might have no more contact with either parent. Nonetheless, she wished to be adopted. Asked why, Cherish replied [b]ecause I understand that Im not allowed to go back with my mom and dad; so I dont want to be switched -- keep on be switching with other foster parents, so -- I just want to stay in one home that I will be safe with and be loved. She felt safe and loved in her current home and wanted to stay there forever. Even if she could stay in her current home without being adopted, she still wanted to be adopted.

Following closing arguments by counsel, the court found both children adoptable. It added:

What we have here is a situation with a child old enough to have a voice, crying out for the highest level of stability and permanency that this Court can offer. And it takes a lot of courage for a child to come forward and tell a courtroom full of adults, including the person who is wearing the black robe and making the decision, what that child wants to have happen.

It strikes the Court that Cherish is a very intelligent girl. That shes a very courageous girl. And that she is looking out for her best interests when she came and testified today. And this has not been an easy situation, I am sure, for Cherish. But despite that, she was able to tell this Court very clearly how she feels about this whole situation.

The [s]tatutory preference is that the Court must select adoption as a permanent plan for a child unless one of the exceptions applies. One of the exceptions is that the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

Usually we have where parents have regular visitation, but the second prong of the child benefitting [sic] is absent. Cherish would benefit from continuing the relationship with her parents, but, unfortunately, her parents have not maintained regular visitation, and the first prong is missing. Both prongs must be present in order for that exception to apply.

The court expressly found termination of parental rights would not be detrimental to either child. In turn, the court identified adoption as the most appropriate permanent plan for the children and terminated parental rights.

DISCUSSION

Appellant contends the court erred when it declined to find termination would be detrimental to both childrens, but particularly Cherishs, best interests in light of their parent/child relationship ( 366.26, subd. (c)(1)(A)). In making her argument, appellant focuses on the courts remarks after closing arguments. According to her, the court reasoned she established detriment but failed to satisfy the statutory requirement that she maintained regular visitation and contact. However, appellant argues, the six-month lapse in her visits was a fairly insignificant period of time given the length of Cherishs dependency and amounts to the the flimsiest of evidence. Appellant concludes the courts finding was contrary to the weight of the evidence, namely Dr. Olsons opinion, and cannot stand. For the following reasons, we disagree.

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, it is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

To the extent appellant includes Michael in her detriment argument, we observe she never asserted in the superior court that termination would be detrimental to him. Indeed, there was no evidence that termination would be detrimental to him. Having not asked the court to exercise its discretion in this manner as to Michael, appellant has forfeited the opportunity to so argue on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.) When the law does not require the juvenile court to act in a certain way, the parent bears the responsibility to care for his or her own interests by asking the court to exercise its discretion in a manner favorable to the parent. We will not permit a silent parent to argue that the juvenile court erred in not being psychic. (Ibid.)

Appellant also overlooks the well-established rule that a trial courts reasoning is not a matter for this courts review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Etc. (1932) 123 Cal.App. 564, 567.)

In addition, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant seems to argue, but whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Further, we may not reweigh or express an independent judgment on the evidence (In re Laura F. (1983) 33 Cal.3d 826, 833), as appellant would have us do by focusing solely on Olsens opinion and ignoring other evidence before the court.

Upon our review of the record, as summarized above, we conclude the court did not abuse its discretion. Although there was uncontroverted evidence that Cherish shared a bond with appellant, it was insufficient to compel a finding of detriment. The law requires that the parent maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).)

Much as appellant would like to minimize it, she did not maintain regular visitation and contact with Cherish. For most of the childs dependency, she was placed with appellant. Thus, for appellant to claim the six-month lapse in her visits was a fairly insignificant amount of time is frankly disingenuous. The fact is that once it became necessary to remove Cherish in the summer of 2006, appellant stopped visiting.

In any event, there was conflicting evidence on whether maintaining their relationship would benefit Cherish. True, Olson opined that it would. Notably, however, he did not set forth the basis for his opinion that the detriment posed by parental termination was greater than any benefit from termination of those rights and subsequent adoption. As the record also discloses, Olson did not have the benefit of Touts section 366.26 WIC Report detailing the parents pattern of canceling or failing to appear for scheduled visits. Further, he also saw Cherish at a time when she had difficulty coming to terms with the need for permanency planning and was misinformed by appellant. The court properly may have taken these factors into account in assigning what weight it did to Olsons opinion. (See Evid. Code,  400 et seq., 413.)

In addition, there was social worker Touts assessment. As she wisely questioned, what would be the benefit to Cherish of selecting a permanent plan other than adoption in order to preserve visitation if the parents continued their pattern of not visiting? Further, the benefit of a continued relationship was doubtful when appellant told her daughter lies and upset her.

Last, there was Cherishs own testimony that she wished to be adopted rather than face an uncertain future. Appellant criticizes any reliance on the childs testimony, claiming her position was clearly tainted by misinformation and an erroneous understanding of the law. We disagree. Cherish testified her attorney informed her of the courts permanency planning options. She understood there was no guarantee of future contact if she were adopted while visitation would be ordered under legal guardianship or foster care. Her attorney, as an officer of the court, also advised that he had made her aware of the available options. In addition, appellant relies on the difficult time Cherish had in the fall of 2006 accepting that she would not return to her parents home. Appellant concludes from this that Cherish did not want to be adopted. However, appellant overlooks the evidence that by the time Cherish testified in late February 2007, she had come to terms with the fact that reunification was not possible. She now wished stay in one home in which she would feel safe and be loved.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship 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.) (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) Given the facts in this case, we conclude the trial court properly rejected appellants detriment argument.

DISPOSITION

The order terminating parental rights is affirmed.

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* Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.

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