In re E.S.

Filed 12/17/09 In re E.S. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Appellant E.S., the daughter of respondent Z.S. (Mother), appeals from an order following a hearing under Welfare and Institutions Code section 366.26 in which the juvenile court declined to terminate parental rights under the beneficial parentchild relationship exception. ( 366.26, subd, (c)(1)(B)(i).) E.S., who is joined by the Agency in this appeal, argues that the juvenile court abused its discretion in making this finding. We disagree and affirm the order.

II. FACTUAL AND PROCEDURAL BACKGROUND

E.S. came to the Agencys attention when Mother was arrested on September 3, 2007, for shoplifting food from a Food Maxx in Fremont and for resisting arrest by providing false information to a police officer. Mother was incarcerated and E.S., who was three years old at the time and with Mother when she was arrested, was detained and placed in foster care.

E.S. was, by all accounts, a child who was well taken care of before her detention. A forensic examination and a CALICO[1] interview concluded that she had no physical or sexual abuse issues. She appeared to be a happy child, who behaved in an age appropriate way and had a good vocabulary. It was apparent to social workers that she had been well cared for.

In December 2007, the Agency recommended that E.S. be removed from Mothers custody. The Agency described the case as confusing because Mother refused to provide the Agency with her address or with a birth certificate for E.S. Mother also did not complete a requested maternity test and psychological evaluation.

At the contested dispositional hearing in December 2007, the court removed E.S. from Mothers custody and ordered reunification services. Among other things, Mother was required to obtain and maintain a stable and suitable residence for herself and E.S., and to undergo psychiatric evaluation and general counseling as well as a parenting education program. Mother was also required to obtain a maternity test.

In a status review report dated April 7, 2008, the Agency recommended that E.S. remain a dependent and that reunification services be continued for an additional six months. Mother had not yet obtained a copy of E.S.s birth certificate. Mother reported that E.S. was born in a village in Sudan and that no birth record was available. Mother had maintained consistent visitation, but had refused to provide a physical address until it is time to have her home assessed for E.S. to visit. Mother has expressed on various occasions her unhappiness with the Dependency process and naming that as the reason for her lack of cooperation with obtaining the documents necessary to provide timely and appropriate services for E.S. Several months before the Agencys report, Mother wrote to the court and stated that an earlier report by the Agency incorrectly stated that she had been arrested on three charges. She stated that she had been charged only with burglary, a charge that was subsequently reduced. She also stated that the Agencys allegation that E.S. had been physically abused was refuted by medical examinations. She expressed concern with this inaccurate information.

By the time the April, 2008 status review report was filed, Mother had completed a maternity test, scheduled parenting classes and completed psychological testing. The results of the maternity test were pending. The psychologist reported that Mother did not note any psychotic tendencies or paranoia; however she did note that [Mother] presented as being guarded as it related to discuss[ing] her Child Protective involvement and did not want to give her personal address information. The Agency had not yet received a written report on this assessment.

Mother also informed the Agency that she would not be providing the Agency with identifying information for E.S.

By the time of the report, Mother was having unsupervised visits with E.S. E.S.s foster mother reported that the visit she supervised went well. During the visits [Mother] often brings [E.S.] clothes, books, toys and snacks. [Mother] engaged [E.S.] through play and reading for the majority of their visits. She also talks to [E.S.] concerning her week, as well as remembering events, and places they previously visited. During the visits [E.S.] was noted as being cheerful and playful. [E.S.] often refers to [Mother] as mommy and engages in conversation with her.

E.S. was assessed by a therapist who described her as very bright. The therapist was also concerned about E.S.s level of anxiety and need for control. Mother had had a phone consultation with the therapist to discuss E.S.s treatment. She seemed interested in how [E.S.s] assessment is going as well as expressing an interest in to participate in [E.S.s] treatment.

E.S. appeared to have adjusted well to her placement and was reported to have a positive attitude towards her foster mother as well as others in the home. The foster mother reported that, although E.S. was doing well, her hope is for [E.S.] to return to the home of her mother, as [E.S.] asks about her mother often.

Mother has stated on several occasions that she feels the services that the Agency has offered are not needed. Mother believes that she can care for [E.S.] and would like for her to be returned home.

The court continued E.S. as a dependent and ordered six more months of services.

In September 2008, the Agency filed a 12-month status review report recommending that reunification services to Mother be terminated and that the matter be set for a hearing under section 366.26. The Agency recommended adoption as a permanent plan for E.S.

At the time of the Agencys recommendation, Mother had complied with the requirement that she establish maternity with a test that revealed she is E.S.s biological mother. In addition to completing the maternity test, Mother also completed a psychological evaluation, which revealed she has no mental health issues, and has had regular contact with E.S.

Mother was apparently under the impression that, because the criminal matter against her had been dismissed, E.S. would be returned to her.

Mother continued to refuse to provide the Agency with her physical address. Mother told the Agency that she did not believe that all this information was necessary and felt that it was very intrusive. Mother opposed the termination of parental rights and wanted [E.S.] returned to her. Mother told the agency that she was attending law school, and was employed, but did not provide any evidence to verify this information.

The Agency recommended that Mothers parental rights be terminated.

With regard to the parent-child relationship exception, the Agency reported that [a]lthough [E.S.] has contact with her mother, severing the parent-child relationship via termination of parental rights would not be detrimental to [E.S.] as the parent-child relationship between [E.S.] and her mother is lacking.

The contested section 366.26 hearing was held on March 26, 2009. Mother did not attend the hearing and the court denied her request for a continuance, finding that her reason for requesting the continuancethat she had to be at workdid not constitute good cause.

The court amended the Agencys report to reflect that Mothers arrest was not for grand theft, but simply for theft.

The foster mother testified with regard to Mothers relationship to E.S. In February and March 2008, she began to supervise Mothers visits with E.S., and continued to do so for about a year. She met Mother both at the Agencys offices and also at the Bayfair Mall, in the play area, and observed Mother and E.S. spend time together talking, playing. The visits were usually an hour long. The visits were regular, with some exceptions where Mothers schedule and the foster mothers schedule did not coincide. For the most part, however, the visits were regular and weekly.

Mother was appropriate with E.S. She always brought things for her. Like she would bring a snack, or she would ask me if she needed anything. She would bring clothes. She would even bring things for other children that were in my care because oftentimes we would meet there and it wouldnt just be me, her, and [E.S.] It would be me, her, and [E.S.], and the other children that I had in my care. [] She . . . always considered the other children that were in my care because they were, you know, children that would come and go aside from [E.S.] being there. So she usually was pretty attentive to the needs of [E.S.] and the needs of the other children.

Mother would ask E.S. questions like  Are you hungry? She would make sureshe, you know, would try to provide clothing for her. She would ask me questions about her size. And at time she would bring clothing to the visits and give them to me. She made sure her face was wiped, and, you know, that she would get something to eat, and that everything would be sufficient. Mother engaged with E.S., and was mindful of her safety. When E.S. played on the play structure she would make statements like, Be careful, . . . so that she wouldnt jump off to another child because youd have one child on this little bridge thing and another child would be on the frog or close by. She would, you know, say things like that just to . . . make sure that they were safe and just to watch out. [] And she would do things like talk about them sharing . . . because she would bring like maybe three of four Capri Suns, and she would talk to [E.S.] and say, you know, You need to share this. And just different stuff like that. So she wasshe was pretty interactive as far as trying to teach her about sharing, and trying to . . . be with her and be mindful of the play structure that they were on and what they were doing.

E.S. called her mother mom and looked forward to visits with her. The foster mother described how, when E.S. was recently sick, she got up one morning and climbed in my bed, and snuggled up close, and she was like, When am I gonna get to see my mom? 

E.S. talked to the foster mother about wanting to go back to her mom more than once. The first time, according to the foster mother, we were getting ready for bed at night and she just kind of said that she was ready to go home, that she had been with me long enough. . . . The second time came like in the last maybe three weeks where shewe were in the living room sitting down after dinner and she just said, I want to go home. I want to go home now. Ive been with you long enough. . . . She has expressed a desire to want to go home, and even as recent as yesterday. According to the foster mother, E.S. loves her mother and her mother is loving toward her.

The foster mother acknowledged that Mother did not visit E.S. between October 2007 and February 2008, and that E.S. sometimes refers to the foster mother as mom and her mother as her other mommy. E.S.s personality also seems more subdued when she is around her mother. E.S. is also less verbal with her mother than with her foster mother. The foster mother was also concerned that mother might take her [E.S.] and just go, and nobody would ever know what happened to her. The foster mother also stated that Mother had, in the past, taken E.S. for unsupervised visits for as long as a day, and had never failed to reappear and, in fact, called to say when she would be late because of traffic. The foster mother had a close bond with E.S. and felt she turned to her as a mother. The foster mother did not know why the mother would not provide the Agency with basic information about E.S.

Michael Furness, the primary welfare worker on E.S.s case, testified about his experience monitoring four visits between E.S. and her mother. His initial supervised visit was in February 2009. He testified that mother . . . is loving, appropriate. . . . [S]he brings a snack. She brings coloring books. She inquires as to [E.S.s] health, engages her. He described E.S.s demeanor during these visits as greatly diminished from what it usually is. Shes a very outgoing, very talkative, engaging child. When shes with her mother she mostly sits there quietly, responding to questions but not initiating conversation. [] In the four visits that Ive observed in the office very closely I would say [E.S.] has initiated conversation maybe five times. Otherwise, she is responding to Mothers constant attempts to engage her with short brief answers, and then she lapses back into silence. [] [E.S.] will smile when she sees her mother, but theres no excitement, no physical expression of excitement or love. She seems to be enduring the visits, not necessarily enjoying them, and will take every opportunity to be distracted. She colors very, very intently. And basically seems to be avoiding engaging with her mother. And then at the end of every visit when we say, [i]ts time to go, she turns to me and gives me a big relief smile, which is a big contrast to how she has been during the visits when she rarely smiles and sits there quietly. She seems excited to be done with the visit.

Furness stated that [t]he way it plays out during visits, Mother is simply a happy visitor, someone who stops by and plays with [E.S.] for an hour. Furness believed her demeanor speaks to a lot of confusion, and her behavior in the home which can be angry, she can have outbursts. I believe the ambiguity is very troubling to her.

Furness also acknowledged that he wrote in his report regarding the visits that E.S. greeted her mother at the start of a visit with a hug and a kiss, that Mother was very loving and appropriate with E.S., and that before this visit, the social worker learned that E.S. had left her mother a very mature, very sweet voicemail where she said I love you.  At the next visit, the social worker reported that E.S. seemed to be a little more at ease with her mother. Although subdued, E.S. seemed to relax somewhat over the course of the hour. E.S. and her mother sat closely on the couch and [E.S.] now seemed comfortable with the increased physical contact. When the mother said goodbye with an I love you, [E.S.] replied, I love you too. They have a kiss and smile goodbye In the car home, E.S. seemed quiet and reserved. They drove by a woman with long hair who resembled [Mother] and [E.S.] gave her a long following look. . . . She looked pensive and a little sad.

At the final visit observed by the social worker, E.S. greeted her mother with a kiss and dove into the coloring book her mother brought. In contrast to other visits, E.S. often broke the silence and initiated the conversations on many occasions, asking her mother for help or bringing the coloring book over to the couch to show off. E.S. and Mother sat very close . . . on the couch and E.S. seems more and more relaxed with each subsequent visit, and more willing to engage with her mother.

The foster mother testified that E.S. does seem to be a little bit more reserved and quieter during the visits. The foster mother encouraged E.S. to speak to her mother about her desire to go home. She also testified that E.S. looks forward to visits with her mother.

The juvenile court found by clear and convincing evidence that the beneficial parent-child relationship exception applied. The court pointed to E.S.s consistent expressions of interest in seeing Mother, and desire to go home to Mother, including her statement to the foster mother that she had been with her long enough. The court also pointed to positive interactions between E.S. and her Mother, which included loving and attentive care, concern[] about her physical safety . . . food and clothing and Mothers insistence that E.S. share with other children. The court concluded: The child yearns for her mother. I think that to separate the child from the mother would create great harm to the child. The court declined to terminate Mothers parental rights, ordered guardianship by the foster mother and permitted Mother weekly supervised visitation.

This timely appeal followed.

III. DISCUSSION

A. Standard of Review

At the conclusion of a section 366.26 hearing, a court may decline to terminate parental rights if it finds a compelling reason for determining that termination would be detrimental to the child . . . . ( 366.26, subd. (c)(1)(B).) One such compelling reason, and the reason invoked by the juvenile court in this case, occurs when the court finds 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).) The parent has the burden of proving that this exceptionoften referred to as the parent-child relationship exceptionapplies. (In re Zachary Z. (1999) 77 Cal.App.4th 799, 809.)

The parties disagree about the applicable standard of review. The Agency contends that the abuse of discretion standard of review applies and Mother argues that the substantial evidence standard of review is the correct standard. We review the juvenile courts decision regarding the applicability of this exception under the substantial evidence standard of review. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We are, of course, aware that the court in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, applied the abuse of discretion standard of review to this question. However, that court also noted that the practical differences between the abuse of discretion and substantial evidence standards of review are not significant. (Id. at p. 1351.) The court went on to observe that, in fact,  evaluating 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 courts action, no judge could reasonably have made the order that he did. . . .  [Citations.] (Ibid.)Here, were we to apply the abuse of discretion standard to this case, we would easilyreach the same result.

B. Substantial Evidence

The juvenile court found that there was clear and convincing evidence that E.S. would benefit from continuing the relationship with Mother, a finding that is supported by substantial evidence. In reaching this conclusion, we are mindful that    The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.] [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. [Citation.]  (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

In In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109, the court explained that, to establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate frequent and loving contact (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), an emotional bond with the child, or that the parents and child find their visits pleasant. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Rather, the parents must show that they occupy a parental role in the childs life. (In re Beatrice M ., supra, 29 Cal.App.4th at p. 1419.) To do so, parents must establish that their relationship with the child promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and 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. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The testimony of the foster mother and the social worker, who both observed Mothers interactions with her daughter and also reported E.S.s comments about her relationship with her mother, make clear that Mother occupied a parental role in E.S.s life. Mothers visits to E.S. were regular, and were characterized by the kind of caretaking and instruction a parent provides a child for the childs well-being. Mother was mindful of E.S.s safety on the play structure, and attended to her intellectual and social development by bringing her books and art supplies and by reading to her. Mother insisted that E.S. share with other children, giving her appropriate social direction. Mother modeled generosity for her daughter by bringing clothing and snacks for the other children in foster care with E.S. Mother also provided E.S. with necessities by supplying clothing. Mother was in touch with the E.S.s therapist to discuss E.S.s treatment plan. Just as Mother clearly occupied a parental role in E.S.s life, E.S. was quite clear that Z.S. was her mother, and expressed a consistent desire to return to their home.

Citing language in a child custody case, In re Marriage of Carney (1979) 24 Cal.3d 725, 739,[2] and reciting ways in which mothers conduct was eminently self-centered, E.S.s counsel argues that the record does not support the courts decision. Mother also notes that the social worker who observed Mother and E.S. made statements that could be interpreted as supporting a conclusion that Mother and E.S. did not have a strong parent-child bond. The Agency makes similar arguments.

In so doing, both E.S.s counsel and the Agency demonstrate a fundamental ignorance or a blatant disregard of the substantial evidence standard of review. Under the substantial evidence standard of review, [w]hen a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.] (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) Thus, although the record contained some contrary evidence on the issue of the beneficial parent-child relationship exception, this is of no consequence given that the court reached a contrary conclusion, one that is supported by substantial evidence.

Further, although there is evidence in the record that E.S.s visits with Mother could sometimes be uncomfortable and that E.S. was sometimes subdued with Mother, we disagree with the Agency and E.S.s counsels inference that the discomfort a child might feel when visiting with a parent under the watchful eye of a social worker indicates the absence of a parental bond. The juvenile court reasonably rejected the argument that this discomfort should be read as the Agency and E.S.s counsel suggested.

E.S.s counsel and the Agency also point to Mothers behavior, both that which led up to the detention and her actions during the reunification process in arguing that the court erred in finding a beneficial relationship. They contend, in effect, that no truly parental relationship can exist when a parent refuses, as Mother has, to permit the Agency to see her home or to provide the Agency with her child's birth certificate. This argumentthat the parental errors that led to the dependency and the failure to reunify negate the existence of a beneficial relationshipis simply not the law, given that no beneficial relationship could ever be found, because such a finding is always preceded by a dependency followed by a failure to reunify.

This is not to say, however, that Mother's behavior does not give us pause. We find it troubling that Mother has refused to provide the Agency with the most basic information necessary to secure the return of her childa child who, by all accounts, she loves very much. The reason for Mothers refusal to provide this information is not clear from the record. What is clear is that, by refusing to cooperate with the Agency, she has allowed her child to remain in the dependency system. The Agency is certainly not without fault. The Agencys position in this case strikes us as unnecessarily adversarial, particularly in light of the fact that Mother is, by all accounts, a more than adequate parent to E.S. We encourage the Agency to work with Mother in a positive and cooperative way, and to recognize that it is to E.S.s benefit for the Agency to help Mother overcome her reluctance to trust the Agency. We also encourage Mother to recognize that she must find a way to communicate with the Agency, and to keep in mind that, by doing so, E.S., who clearly longs to be with Mother, might finally be returned to her home.

IV. DISPOSITION

The order appealed from is affirmed.

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Haerle, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] CALICO refers to the Child Abuse Listening Interviewing Coordination Center (http://www-atdp.berkeley.edu/2030/aberney/calico/info.html).

[2] In re Marriage of Carney, supra, 24 Cal.3d at page 739describes a parental relationship as one that involves affection, sympathy, and wisdom and ethical, emotional and intellectual guidance. This eloquent description of the parental relationship was never intended, however, to address the specific question of the nature of a beneficial parental relationship under section 366.26. We rely in our analysis on the many cases that do address this issue.