In re Brandon N.
Filed 3/5/12 In re Brandon N. CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re BRANDON N., a Person
Coming Under the Juvenile Court Law.
B236657
(Los Angeles
County
Super. Ct.
No. CK75936)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.M.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Rudolph A. Diaz, Judge. Affirmed.
California
Appellate Project, Jonathan B. Steiner, Anne E. Fragasso, under appointment by
the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Emery
El Habiby, Deputy County Counsel for Plaintiff and Respondent.
T.M., mother, appeals from the juvenile court’s order
terminating her parental
rights to now six-year-old Brandon N.
Mother contends that the juvenile court erred by failing to find the
relationship exception to the termination of parental rights under
(c)(1)(B)(i)
title="">[1] (section 366.26(c)(1)(B)(i)). We affirm.
BACKGROUND
On January 16, 2009, the
Family Services (Department) filed a section 300 petition that alleged, as
amended, that mother struck Brandon
with a belt resulting in swelling to his thigh and marks and bruises to his
arms and legs. Such excessive conduct,
the petition alleged, caused Brandon
unreasonable pain and suffering and placed Brandon
at risk of physical and emotional harm.
The
Department’s January 16, 2009, Detention Report stated that on January 13,
2009, Inglewood Police Department Officer Wang responded to a “check the well-being
call” at mother’s apartment and heard a woman screaming and yelling and a child
crying. Mother answered the door and
told Officer Wang that she “whipped” Brandon
with a belt because he “wet” himself.
Mother reported that she was having difficulty potty training Brandon
and had whipped him multiple times with a belt on his legs and arms. Brandon
complained to Officer Wang of pain in his left hip. Officer Wang observed that Brandon
had bruises, welts, redness, and swelling on his left shoulder and left leg and
arrested mother. A social worker picked
up Brandon at the police
station.
Brandon
was taken to the hospital where he was examined by a physician assistant. The physician assistant asked Brandon
where he hurt. Brandon
lifted his left shirt sleeve and pointed to marks that appeared to be a one
centimeter scab and a one centimeter dark spot on his left biceps. The social worker observed that Brandon’s
left thigh was swollen and red just above the knee and that Brandon
had multiple marks, scars, and bruises on both arms and legs. Hospital staff told the social worker that
the marks and bruises appeared to have been made over time and that they did
not all appear to be the same age.
The social
worker took Brandon to his father’s
(B.N.) home. Father told the social
worker that he and mother were together for about a year and broke up when Brandon
was about three months old. Mother and
father had joint legal custody of Brandon. Brandon
resided primarily with mother, but father had visitation with Brandon
on the first and third weekends of each month.
In 2007, father married Brandon’s
stepmother, I.M., and lived with her and her two children. Father believed that mother was an adequate
parent, but that she was emotionally unstable and sometimes acted “crazy.”
At the January 16, 2009, detention hearing,
the juvenile court found a prima facie case for detaining Brandon. The juvenile court released Brandon to
father, and ordered the Department to provide Brandon and his parents with
family maintenance services. The
juvenile court ordered that mother was to have reasonable monitored visits with
Brandon at a Department office with a Department-approved monitor.
On February
25, 2009, a Department investigator interviewed mother about the allegations in
the section 300 petition. Mother
explained that she had run out of diapers and Brandon was wearing only
underwear. Mother told Brandon that if
he needed to use the restroom, he should use the bathroom. Later, mother noticed that Brandon’s underwear
was wet. Mother had Brandon sit on the
toilet for 30 minutes to one hour because a relative told her sitting on the
toilet would allow Brandon to “get used to it.”
The
investigator asked mother when she struck Brandon. Mother responded, “I was talkin’ to him. Then I popped him when he was on the toilet
the first time. Then he was hollering,
he cried like someone hurtin’ him. I
didn’t lie. I did abuse him, I did pop
him. I’m trying to potty train
him.” Mother stated that she “popped”
Brandon three or four times. When asked
to describe what she meant by “popped,” mother demonstrated a slapping
motion. Mother denied that she struck
Brandon with a belt. Mother said that
she lied when she told the police she struck Brandon with a belt because she
was upset and scared and could not think.
Mother stated that she did not physically discipline Brandon, and that
the events that brought Brandon to juvenile court were an isolated incident.
The
Department’s March 2, 2009, Jurisdiction/Disposition Report stated that mother
was scheduled for weekly visits with Brandon.
Mother’s first visit was on February 10, 2009, and mother was one and a
half hours late. Mother’s most recent
visit was on February 17, 2009. There
were no problems noted during the visit.
On April 6,
2009, the juvenile court held an adjudication hearing. Mother pleaded no contest, and the juvenile
court found that clear and convincing evidence demonstrated that a substantial
danger existed to Brandon’s physical health and that there were no reasonable
means to protect Brandon without removing him from mother’s physical
custody. The juvenile court declared
Brandon a dependent child of the juvenile court and ordered Brandon placed in
father’s home under Department supervision.
The
juvenile court sustained the allegations in the section 300 petition that
mother struck Brandon with a belt resulting in swelling to his thigh and marks
and bruises to his arms and legs, and that mother’s excessive conduct caused
Brandon unreasonable pain and suffering and placed Brandon at risk of physical
and emotional harm. The juvenile court
ordered mother to participate in parenting education and individual counseling
to address case issues including anger management and appropriate parenting methods. Mother was granted monitored visitation two
to three times a week depending on the availability of a Department-approved
monitor with the Department having the discretion to liberalize visitation.
The
Department’s October 5, 2009, Status Review Report stated that Brandon remained
in father’s home. The report stated that
on January 29, 2009, mother had enrolled at Lunns Hope Corporation, an entity
that provided individual and group counseling and parenting and drug and
alcohol education. On April 23, 2009,
mother received a certificate from Common Sense Parenting. The Department opined that mother did not
completely comprehend the juvenile court’s order because mother enrolled in a
drug treatment program but did not have a substance
abuse problem. Mother had not
attended individual counseling or classes since May 2009 because she did not
have medical insurance to pay for those services. Thus, mother had not fully complied with the
juvenile court’s order.
As for
visitation, the Department’s report stated that mother had weekly monitored
visits with Brandon from April 6, 2009, to May 9, 2009. On May 9, 2009, a social worker liberalized
mother’s visits to unmonitored visits.
Mother would pick up Brandon from father’s home on Sundays. Mother reported that she took Brandon to
church and then brought him back home.
Beginning on July 28, 2009, mother had visits with Brandon twice a
week. Mother visited with Brandon on
Tuesdays from 2:00 p.m. to 6:00 p.m. and on Sundays from 8:00 a.m. to 1:00
p.m. A social worker observed mother
during her unmonitored visit with Brandon on July 28, 2009. Mother interacted appropriately with Brandon. The social worker noted, however, that mother
was “okay” with Brandon playing independently and that Brandon had a very short
attention span. The social worker
suggested that mother engage Brandon by reading to him and working with him on
learning colors and shapes, and mother was able to do so.
Mother
stated that she wanted to reunify with Brandon and that she knew how to care
for him. Mother admitted to “wrong doing
and that she ‘slipped’ under a lot of stress.”
Mother stated that she had learned to cope better with “life
issues.” Mother was trying to rent an
apartment so that Brandon could be with her.
On November
3, 2009, the Department filed a subsequent petition pursuant to section 342
that, as amended, alleged that father and stepmother had a history of engaging
in physical altercations in Brandon’s presence that resulted in injuries to
stepmother. Such conduct, the petition
alleged, placed Brandon at risk of physical and emotional harm, damage, and
danger. The petition further alleged
that Brandon’s home had been found in an unsanitary condition which endangered
Brandon and placed him at risk of harm.
At the
November 4, 2009, detention hearing, the juvenile court found a prima facie
case for detaining Brandon. The juvenile
court ordered Brandon removed from father’s physical custody and placed him in
the Department’s custody. The Department
placed Brandon in foster care.
The
Department’s December 2, 2009, Interim Review Report stated that mother had
been consistent in visiting with Brandon, but had been late either in picking
him up or returning him home. Mother
stated that she would take Brandon to the park and to movies during
visits. A social worker reported that
she observed that Brandon became excited about visits with mother. The Department’s December 2, 2009,
Jurisdiction/Disposition Reports stated that mother’s visits with Brandon had
gone well and that Brandon’s foster mother stated that mother had been
appropriate and on time.
On January
6, 2010, the Department informed the juvenile court that during the past period
of supervision, mother had visited Brandon and taken him for the day on all
days available to her for visits.
However, mother was consistently late—often more than one hour—in
picking up Brandon and returning him to his foster family. Mother stated that she was late because she
did not drive and the bus trip to pick up or return Brandon took a long
time.
On January
6, 2010, the juvenile court held an adjudication hearing on the section 342
subsequent petition. Father pleaded no
contest, and the juvenile court found true the amended allegations in the
petition. The juvenile court declared
Brandon to be a dependent of the juvenile court under section 300 and ordered
him removed from father’s physical custody.
The juvenile court granted mother unmonitored day visits, which the
Department had discretion to liberalize.
The Department was to assess mother’s new apartment for overnight visits
after mother moved.
The
Department’s April 6, 2010, Interim Review Report stated that during the period
under review mother had not complied with the juvenile court’s order for
individual therapy to address case issues and anger management. The report stated that mother had her
“intake” for individual counseling at Jewish Family Services on October 29,
2009, and attended two sessions thereafter.
Mother had several appointments that she failed to attend. After mother missed an appointment scheduled
for February 23, 2010, Jewish Family Services terminated mother’s individual
counseling. As for visitation, the
social worker stated that Brandon was excited to see mother on March 5,
2010.
The
Department’s July 7, 2010, Status Review Report stated that mother was not in
compliance with the juvenile court’s orders.
During the period under review, mother had failed to participate
regularly and to make substantive progress in court-ordered individual
counseling to address case issues including anger management and appropriate
parenting methods. Since March 2010,
mother had not had any visits with Brandon or contacted Brandon by
telephone.
On July 14,
2010, the social worker discussed with mother the importance of visiting
Brandon and inquired about why mother had not had any contact with her
son. Mother stated that she was
depressed and had “a lot of people in her ear” telling her what to do. Mother had a visit with Brandon on July 24,
2010. Mother picked up Brandon on time,
but returned him one hour late.
On August
23, 2010, the social worker filed a section 388 petition (request to change
court order) seeking to change mother’s visits with Brandon from unmonitored to
monitored. The petition stated that
mother returned Brandon from his August 7, 2010, visit two hours late. During mother’s visit with Brandon on August
14, 2010, mother was arrested at a mall for shoplifting. Mother took a $12 ring from a JC Penney
store. Brandon’s foster parents had to
pick up Brandon at a police station. The
juvenile court ordered that mother’s visits temporarily would be monitored
pending the hearing on the social worker’s request. On September 28, 2010, the juvenile court
granted the social worker’s request that mother’s visits with Brandon be
monitored. At the same hearing, the
juvenile court terminated mother’s reunification services.
The
Department’s January 5, 2011, Status Review Report stated that mother’s visits
with Brandon had been consistent for the prior two months. The report stated that
father failed to complete his domestic violence classes and
had not participated in individual counseling since July 2010. In February 2009, father was arrested for
driving with a suspended license and reckless driving. In October 2010, father was arrested for
selling drugs. Father was convicted of
two counts of violating Health and Safety Code section 11352, subdivision (a)
and placed on formal probation for three years.
On March 7, 2011, the juvenile court terminated father’s reunification
services, and set the matter for a hearing to select and implement a permanent
plan under section 366.26.
On March
22, 2011, mother filed a section 388 petition concerning the juvenile court’s
orders terminating mother’s and father’s family reunification services and
setting the matter for a permanent plan hearing. Mother alleged that she reenrolled in
individual therapy and completed a Parents Beyond Conflict class. Mother sought an order placing Brandon with
her or providing her with family reunification services. Such an order would benefit Brandon, mother
contended, because she was very bonded with him, she had maintained visitation
with him, and his foster father reported that the visits were appropriate and
consistent. The juvenile court set the
section 388 petition for a hearing.
The
Department’s May 12, 2011, Interim Review Report stated that mother had not
visited Brandon since January 2011.
Brandon’s foster parents reported that mother called about once every
two weeks to see how Brandon was doing.
The report stated that mother had a history of being inconsistent in her
visitation and contact with Brandon. As
to mother’s visitation history, the report recalled that mother did not have
any contact with Brandon from March 2010 to July 2010.
The
Department’s July 1, 2011, Section 366.26 Report stated that mother had not
visited Brandon since January 12, 2011, even though Brandon’s caregivers made
Brandon available at a YMCA every Saturday.
The report stated that mother had a pattern of being inconsistent with
her visitation and contact with Brandon.
The report stated that mother had a number of periods where she had not
seen or contacted Brandon for months, such as the period from March to July
2010, and January to July, 2011.
The report
stated that Brandon had lived with his prospective adoptive parents for about
one year. The prospective adoptive
parents were an ordained pastor and his wife who worked as, among other things,
on-call Pentecostal ministers. The
prospective adoptive parents wanted Brandon to be reunified with his parents,
but were willing to adopt if reunification was unsuccessful. The prospective adoptive parents believed
strongly that it was in Brandon’s best interest that visitation with his
biological family continued as long as Brandon benefited from visits. The prospective adoptive parents were willing
and able to use resources for Brandon, who was attending therapy and receiving
special education services. The report
stated that the prospective adoptive parents had been doing an excellent job
meeting Brandon’s needs, and Brandon was reported to be doing very well in the
prospective adoptive parents’ care.
Brandon was described as a loved member of the prospective adoptive
parents’ family. The report stated that
it was clear that Brandon was happy in the home and that he wanted to stay
there, although Brandon was unable to understand the concept of adoption.
The hearing
on mother’s section 388 petition began on August 16, 2011, with the section
366.26 hearing trailing. At the hearing
on mother’s petition, mother testified that she learned in parenting class how
to talk to Brandon and discipline him properly and not strike him. Mother learned how to cope with her anger and
depression. Mother testified that she
used proper discipline in her visits with Brandon.
Brandon’s
foster father, P.C., testified that mother’s visits with Brandon took place at
a YMCA. P.C. had been present for 99
percent of mother’s visits with Brandon.
According to P.C., mother was “always” late for her visits with
Brandon. During the visits, mother would
“hang out” with Brandon, playing basketball with him or swimming in the pool. P.C. did not observe anything between mother
and Brandon that he considered inappropriate.
Brandon seemed comfortable with mother.
Mother missed three visits with Brandon in the preceding month.
Due to
P.C.’s difficulty in being available to testify at a future date, the juvenile
court permitted P.C. to testify about matters relevant to the section 366.26
hearing. P.C. testified that his family
loved Brandon and that Brandon had been with his family for over a year and was
considered part of the family. P.C.’s
two biological children loved Brandon “dearly.”
The
juvenile court denied mother’s section 388 petition and found that there was
not a change in circumstances and that it would not be in Brandon’s best
interest to reinstate reunification services.
The juvenile court then held the hearing on the termination of parental
rights under section 366.26.
For the
section 366.26 hearing, the juvenile court admitted mother’s testimony at the
hearing on mother’s section 388 petition.
Counsel for the Department, mother, and Brandon stipulated that Brandon
loved mother. Mother requested the
juvenile court to find that the section 366.26(c)(1)(B)(i) beneficial parental relationship exception to the termination of parent
rights applied and to not terminate parental rights. Mother argued that her visits with Brandon
had been “high quality,” nothing during the visits had been “detrimental,” and
Brandon was happy and he and mother “were doing” appropriate things.
The
juvenile court found that Brandon was adoptable and that it would be
detrimental to return him to his parents; that no exception to adoption
applied; that mother failed to maintain consistent contact with Brandon; and
that mother did not have a clear parent-child bond with Brandon. The juvenile court further found that Brandon
had a bond with his prospective adoptive parents and that breaking that bond
would be detrimental to Brandon. The
juvenile court ordered mother’s and father’s parental rights terminated.
DISCUSSION
contends that the juvenile court erred in failing to find the beneficial
parental relationship
the termination of parent rights under section 366.26(c)(1)(B)(i). The
juvenile court did not err.
A. Standard of Review
Some courts have
held that challenges on appeal to a juvenile court’s determination under
section 366.26(c)(1)(B)(i) are governed by a substantial evidence standard of
review. (See, e.g., In re Autumn H.
(1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38,
52-53 & fn. 4.) Under a substantial
evidence standard of review “‘“the power of an appellate court begins and ends
with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted,” to support the findings below. [Citation.]
We must therefore view the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference and
resolving all conflicts in its favor in accordance with the standard of review
so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16
Cal.4th 1040, 1053, abrogated on other grounds as stated in DeBerard
Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) We do not evaluate the credibility of
witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th
at pp. 52-53.)
Other courts have
applied an abuse of discretion standard of review. (See, e.g., In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1351; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Under an abuse of discretion standard of
review, we will not disturb the juvenile court’s decision unless the juvenile
court exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination.
(In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether a
juvenile court’s ruling on the section 366.26(c)(1)(B)(i) exception is reviewed
for substantial evidence or abuse of discretion, because, under either standard
we affirm the juvenile court’s decision.
B. Application of
Relevant Principles
Once a
juvenile court finds that a child is likely to be adopted after removing the
child from parental
custody and has terminated reunification services, parental rights may be terminated
unless the court finds a compelling reason for determining that doing so would
be detrimental to the child under certain exceptions set forth in
52-54.) These “exceptions merely permit
the court, in exceptional circumstances [citation], to choose an option
other than the norm, which remains adoption.”
(Id. at p. 53; In re
Jasmine D., supra, 78 Cal.App.4th at p. 1350 [“Because a section 366.26
hearing occurs only after the court has repeatedly found the parent unable to
meet the child’s needs, it is only in an extraordinary case that preservation
of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement”].)
The
relationship exception in section 366.26(c)(1)(B)(i)
provides that parental
rights will not be terminated and a child freed for adoption if the parent has
“maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.”
Application of the beneficial parental relationship exception consists
of a two-prong analysis. (In re
Aaliyah R., supra, 136 Cal.App.4th at pp. 449-450.) The first is whether there has been regular
visitation and contact between the parent and child. (Id. at p. 450.) The second is whether there is a sufficiently
strong bond between the parent and child that the child would suffer detriment
from its termination. (Ibid.)
parent/child relationship must promote “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; In re Dakota H. (2005) 132
Cal.App.4th 212, 229.)
The beneficial
parental relationship exception does not apply when a parent fails to occupy a
parental role in his or her child’s life.
(In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D.,
supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had
custody of children or advanced beyond supervised visitation will have a
difficult time establishing the beneficial parental relationship
exception].) To establish the beneficial
parental relationship exception, “the parents must do more than demonstrate
‘frequent and loving contact’ [citation], an emotional bond with the child, or
that the parents and child find their visits pleasant. [Citation.]”
(In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the
beneficial parental relationship exception “aris[es] from day-to-day
interaction, companionship and shared experiences.” (In re Casey D., supra, 70 Cal.App.4th
at p. 51.)
Whether
the exception applies is determined “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
child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect
of interaction between parent and child, and the child’s particular needs are
some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27
Cal.App.4th at p. 576.) A parent must
show that he or she has maintained regular visitation and contact with the
child and that a benefit to the child would result from continuing the
relationship. (In re Amanda D.
(1997) 55 Cal.App.4th 813, 821; In re Zachary G. (1999) 77 Cal.App.4th 799,
809.)
The
juvenile court found that the section 366.26(c)(1)(B)(i) exception to the
termination of parental rights did not apply because mother failed to maintain
consistent contact with Brandon and she did not have a clear parent-child bond
with Brandon. The juvenile court further
found that Brandon had a bond with his prospective adoptive parents and that
breaking that bond would be detrimental to Brandon.
Substantial evidence
supports the juvenile court’s determination that mother failed to meet her
burden of establishing that the beneficial parental relationship exception to
the termination of her parental rights applied.
(In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Mother failed to show that she visited
Brandon regularly. (In re Aaliyah R.,
supra, 136 Cal.App.4th at p. 450.)
Mother did not visit Brandon from January 12, 2011, to at least July 1,
2011. Mother also missed three visits in
the month preceding P.C.’s September 26, 2011, testimony at the hearing on
mother’s section 388 petition. Likewise,
there is evidence that mother failed to show that she occupied a parental role
in Brandon’s life (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; In
re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419; In re Casey D.,
supra, 70 Cal.App.4th at p. 51) or that her relationship with Brandon
promoted Brandon’s well-being to such a degree that it outweighed the
well-being Brandon would gain in a permanent home with his prospective adoptive
parents (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re
Dakota H., supra, 132 Cal.App.4th at p. 229). There is evidence that mother loved Brandon,
and it was stipulated that Brandon loved mother. Brandon was, at times, excited about his
visits with mother, and mother interacted appropriately with Brandon during
their visits. At the same time, however,
the prospective adoptive parents were described as having done an excellent job
meeting Brandon’s needs. The prospective
adoptive parents were willing and able to use resources for Brandon who was
attending therapy and receiving special education services. Brandon was doing very well in the
prospective adoptive parents’ care and was a loved member of the prospective
adoptive parents’ family. Brandon was
happy in the prospective adoptive parents’ home and wanted to stay there. A juvenile court may choose an option other
than adoption only in “exceptional” circumstances. (In re Celine R., supra, 31 Cal.4th at
p. 53; In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) There was sufficient evidence before the
juvenile court that such exceptional circumstances did not exist.
DISPOSITION
The order
is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
MOSK,
J.
We concur:
ARMSTRONG,
Acting P. J.
KRIEGLER,
J.
name="_ftn1" title="">[1] All
statutory citations are to the Welfare and Institutions Code unless otherwise
noted.
