In re Daniel B.

Filed 5/27/10 In re Daniel B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Dennis Keough, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.

Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.

Eileen V. (mother) appeals the termination of her parental rights over Daniel B. (now age four) and Christian N. (now age 2) (collectively, the boys). Mother asserts the courts termination of her parental rights was detrimental to the boys under the statutory exceptions to adoption for a beneficial parental relationship or significant sibling relationship. (Welf. & Inst. Code,  366.26, subds. (c)(1)(B)(i), (v).)[1] We affirm.

FACTS

When Daniel was two years old and Christian was five months old, they were declared dependent children based on findings that mother had a history of methamphetamine abuse, had failed to obtain proper medical treatment for R.B. (mothers daughter and the boys half-sister), and had been evicted with the boys and R.B. from a homeless shelter due to mothers substance abuse. The facts and court proceedings in this case through the May 5, 2009 18-month review hearing are discussed in detail in an unpublished opinion of this court, of which we take judicial notice. (Eileen V. v. SuperiorCourtofOrangeCounty (Aug. 31, 2009, G042090).) At the 18-month review hearing, the court terminated mothers reunification services and found returning the boys to her care would be detrimental to them because mother was unable to care for and pay adequate attention to them and had not developed appropriate parenting skills.

Subsequent to that hearing, in September 2009, Orange County Social Services Agency (SSA) reported the boys had been living for the past two years with their foster parents, Dolores and Peter, who were committed to adopting the boys. The boys considered Dolores and Peter to be their parents and look[ed] to them for affection, attention, guidance, etc. Both boys had presented with delays at the time they were taken into protective custody, but had improved dramatically in their current placement, to the point where no services were needed, other than speech therapy for Christian. The boys were now a joy to be around, exuding playfulness and happiness, were social and interactive with their foster family, and participated in appropriate extracurricular and social activities. They thrived in this stable and loving environment, appeared very bonded to Dolores and Peter, and called them mommy and daddy. Christian, in behavior typical of a two-year-old, tended to be stubborn and sometimes threw fits. The prospective adoptive parents supported maintaining contact between the prospective adoptive children and the biological family, including monitored phone calls, pictures and perhaps monitored visitation a few times a year; however, they did not wish to enter into a written agreement on post-adoptive contact.

Mother and R.B. (who lived with mother) visited the boys four hours per week, unless [mothers] work schedule interfere[d]. The boys appeared to enjoy spending time with their mother and showed her genuinely affectionate behavior. But Christian had been recently acting out during visits and exhibited negative behavior in the foster home afterwards (including clinging to Dolores).

SSA recommended that the court terminate mothers parental rights to the boys and proceed with a permanent plan of adoption for them.

In a section 388 petition dated September 14, 2009, mother asked the court to change its order terminating her reunification services and to return the boys to her on a family maintenance plan or a trial release. Mother declared she had a nice size studio and had prepared a comfortable room for the boys. She declared, and attached supporting documentation, that she was employed part-time at the 99 Cent Only Store, had participated in conjoint counseling with R.B., and had completed an in-home parenting program. Mother desperately wanted the boys in her home so she could be the loving, caring, responsible, parent they deserved. She declared (1) this was in their best interests due to the bond they share, (2) it was best for them to live with their mother and [not be] raised in the foster care system, and (3) she had resolved all the issues that brought [them] into protective custody.

The court found mother had made a prima facie showing of changed circumstances, scheduled a hearing on her petition, and granted her an additional four hours of visitation.

Thus, mothers visits increased to four hours, twice per week. In September, mother showed much improved parenting skills and the boys did not want to separate from her after visits. She sometimes put the boys on time out during visits. In October, Daniel began frequently mimicking mother when she instructed or disciplined him; he would not listen to her. Mother would admonish the boys that if they did not behave, she would tell the foster mother. SSA suggested that mother handle these situations without referring to any other authority figure. In November, Daniel mimicked mother and told her no; mother failed to give the boys consequences for bad behavior. In the opinion of one monitor, mothers parenting skills had regressed and she wasnt really paying attention to the boys. SSA believed removing the boys from their foster home would cause them extensive and irreparable harm. Furthermore, placing them with mother would stress her ability to parent R.B.

SSA continued to recommend that mothers parental rights be terminated and the boys placed for adoption. SSA believed there is no bond between either of the [boys] and their birth family members that would outweigh the benefits of the children being adopted. R.B. had not lived with the boys since September 2007. Under a permanent plan of adoption, the caretakers remain committed to facilitating future contact between the boys, mother and R.B. Currently, mother does not successfully fulfill the role of mother during visitation with the children.

The hearings under sections 388 and 366.26 began on November 17, 2009. The parties stipulated that evidence adduced at the section 388 hearing could be considered by the court for purposes of the section 366.26 hearing as well.

Eileen testified she had worked at the 99 Cent Store for 10 months and had lived at the same address for 11 months. She earned enough money to support herself and the three children, and her employer was willing to schedule her hours around the boys needs. She had arranged for daycare. She had learned how to discipline the boys with the time out method, consequences, and praise, and to talk to them at age-appropriate levels. Her conjoint counselor with R.B. was willing to counsel mother with the boys as well. Mother had done everything SSA had asked of her. She believed it was in the boys best interests to be returned to her care because of the bond they shared. For example, Daniel always asked her when he could come home with her and Sissy. When mother did not answer his question, Daniel would say, Mom, youre not supposed to not say nothing. Youre supposed to say, Not right now, Daniel. She believed she could care for all three children because its just a mothers intuition on how to raise her children, and . . . its not hard at all. She had raised R.B. for eight years and there was nothing different [in] raising two boys. R.B. was doing very well, was a leader in class, and was now in the GATE program for mentally gifted students. Mother was a better and more productive person than she was two years ago, a better mother than [her] own mother, and benefited from everything she had learned. The boys now listened to her, but they are boys a two- and a four-year-old. Both Daniel and R.B. sometimes mimicked her, but it was a game to them. Mother considered the little bit of time she had with the boys to be positive visits. Her sister, mother and stepfather were an available support system to her. She would participate in conjoint counseling and in-home parenting programs with the boys. She encountered no challenges after R.B. was returned to her care.

Angela Wellborn, the visitation monitor who had testified at mothers 18-month-review hearing, also testified at the section 388 hearing. At the time of the 18-month-review hearing, Wellborn had felt mother couldnt handle all three children. But by the time of the section 388 hearing, Wellborns opinion had changed. She believed mother had improved her parenting skills, including multi-tasking and disciplining, and was taking more of the motherly role instead of letting [R.B.] do it. Wellborn believed mother could parent the children without a monitor present if she took more parenting classes. The boys were affectionate with mother; Daniel cried and did not want to leave mother at the end of visits. The boys seemed to consider her a parental, authority figure. The last visit between mother and the boys that Wellborn had monitored took place about two months before the hearing.

By stipulation of the parties, R.B.s statement was read into the record: R.B. loves her brothers very much. She wants them to go home with her and her mother. She does not want them to be adopted. She would be sad if they were adopted. She would feel like she . . . would be losing significant people in her life. She does love living with her mother.

The court denied mothers section 388 petition. The court noted it would have granted a trial release but for SSAs November report that raised safety concerns, such as mothers failure to intervene when Daniel put a plastic bag over his head and pressed it to his face. (Mother testified she had not seen the plastic bag on Daniels head until the monitor alerted her.)

The court terminated mothers parental rights and placed the boys for adoption under section 366.26, finding these orders to be in the boys best interest and that the boys were likely to be adopted. As to the sibling exception, the court found no significant interference with the relationship between the boys and R.B. because the foster parents were willing to facilitate contact with R.B. and based on the nature and extent of the relationship. The court found mother failed to carry her burden of proof on any other exception.

DISCUSSION

The preferred disposition at a section 366.26 hearing is to [t]erminate the rights of the parent . . . and order that the child be placed for adoption . . . . ( 366.26, subd. (b)(1).) A court need not terminate parental rights if it finds a compelling reason for deciding termination would be detrimental to the child under an exception listed in section 366.26, subdivision (c)(1)(B). ( 366.26, subd. (c)(1).) Mother contends the termination of her parental rights was detrimental to the boys under the section 366.26, subdivision (c)(1)(B)(i) exception for a beneficial parental relationship and under the section 366.26, subdivision (c)(1)(B)(v) exception for a significant sibling relationship. She asserts the boys interests would have been best served by . . . a plan of legal guardianship for the foster parents.

We apply the substantial evidence standard of review to a courts rulings on the section 366.26, subdivision (c)(1)(B)(i) and (v) exceptions. (In re Casey D. (1999) 70 Cal.App.4th 38, 50, 53 [beneficial parent-child relationship]; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [sibling relationship].) We accept the evidence most favorable to the order as true and discard the unfavorable evidence . . . . (In re Casey D., at p. 53.) We give the prevailing party the benefit of every reasonable inference and [resolve] all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case. (Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) The appellant has the burden of showing the finding or order is not supported by substantial evidence. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)

Substantial Evidence Supports the Courts Finding the Beneficial Parental Relationship Exception Did Not Apply

Mother contends insufficient evidence supports the courts finding the boys would not benefit from continuing their relationship with her. An exception to section 366.26s adoption preference occurs when termination of parental rights would be detrimental to the child because the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship with the parent. ( 366.26, subd. (c)(1)(B)(i).) The parent bears the burden of proof to show the child would benefit from continuing the relationship. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372.) The parent must establish that the relationship 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 re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court must 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 parents rights are not terminated. (Ibid.)

[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption. (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Similarly, frequent and loving contact is insufficient to establish the type of beneficial relationship contemplated by the statute. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Interaction between [a] natural parent and child will always confer some incidental benefit to the child, but the basis of a beneficial relationship is that the parent has occupied a parental role . . . . (Id. at p. 1419.) While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. (In re Jasmin D. (2000) 78 Cal.App.4th 1339, 1350.)

The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

The benefit of continued contact between [a parent and a child] must be considered in the context of the limitations placed on the parents permitted visitation. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) A quantitative measurement of the specific amount of comfort, nourishment or physical care [a parent] provided during . . . visits is not necessary. (Id. at p. 1538.) Nor is it essential that the child ha[ve] a primary attachment to the parent. (In re S.B. (2008) 164 Cal.App.4th 289, 299.)

Applying these precepts and the appropriate standard of review, we conclude substantial evidence supports the courts finding mother failed to prove termination of her parental rights would be detrimental to the boys due to the strength of their relationship with her. Christian was a four-month-old infant when removed from mothers care; Daniel was two years old. At the time of the section 366.26 hearing, the boys had lived with their foster parents for over two years and had thrived in that environment. Although the boys enjoyed their visits with mother, and Daniel sometimes had trouble parting from her at a visits end, substantial evidence shows that a truly parental relationship did not exist. [A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Mother never progressed beyond monitored visitation; the monitors (in their written reports) expressed continual concerns about the safety of the boys when together in mothers care. The court shared this same concern and declined to take the irresponsible risk of creating a situation where there is a . . . serious risk of physical injury or perhaps even death to a two- and four-year-old. The court was very impressed and moved by mothers level of emotion toward the boys. The record fully reflects that she has made great strides in her life. But the court did not err in finding the well-being [the boys] would gain in a permanent home with Dolores and Peter outweighed the benefits to the boys of their relationship with mother. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Substantial Evidence Supports the Courts Finding the Sibling Relationship Exception Did Not Apply

Mother contends the court erred by terminating her parental rights to the boys despite their relationship with R.B. An exception to the preferred disposition of adoption occurs under section 366.26, subdivision (c)(1)(B)(v) when termination of parental rights would be detrimental to the child due to substantial interference with a childs sibling relationship. In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil. (In re Erik P. (2002) 104 Cal.App.4th 395, 404.)

In determining whether termination of parental rights would be detrimental to a child due to substantial interference with a sibling relationship, a court should take into consideration the nature and extent of the relationship, including . . . whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(B)(v).)

Substantial evidence supports the courts finding that terminating mothers parental rights would not substantially interfere with the boys relationship with R.B. The court was very impressed with R.B.s testimony by stipulation about her affection for her brothers. But the focus now is on the boys wellbeing; the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else. (In re Celine R. (2003) 31 Cal.4th 45, 55.) Moreover, the court found the boys foster parents were supportive of the boys continuing their relationship with R.B. Applying the appropriate standard of review, we conclude substantial evidence supports the courts finding mother failed to prove termination of her parental rights would be detrimental to the boys due to the strength of their relationship with R.B.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] All statutory references are to the Welfare and Institutions Code.