In re E.M.
Filed 6/22/12 In re E.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION TWO
In
re E.M., a Person Coming Under the Juvenile Court Law.
RIVERSIDE
COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
G.N.,
Defendant and Appellant.
E055028
(Super.Ct.No. RIJ119510)
O P I N I O N
APPEAL
from the Superior Court of Riverside
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art.
VI, § 21.) Affirmed.
Richard
L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant.
Pamela
J. Walls, County Counsel, and Lilia
Wilkerson and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and
Respondent.
I. INTRODUCTION
Appellant
G.N. (Mother) appeals from the juvenile court’s October 19, 2011, order terminating parental rights to her then
nine-year-old daughter E.M. and selecting adoption as E.M.’s permanent
plan. Mother claims that insufficient evidence supports the
court’s determination that the parental benefit exception to the adoption
preference did not apply, and that the court should have instead selected
guardianship or long-term foster care as E.M.’s permanent plan. (Welf. & Inst. Code, § 366.26, subd.
(c)(1)(B).)[1] We reject this claim and affirm the
challenged order.
II. FACTS AND PROCEDURAL HISTORY
To best illuminate the nature and quality of Mother’s
relationship with E.M. at the time of the section 366.26 hearing, we outline
the dependency proceedings from their inception, including the events preceding
E.M.’s dependency, Mother’s participation in her case plan, and the nature and
quality of Mother’s visits and relationship with E.M.
A. Events Preceding E.M.’s Dependency
E.M. was born in June 2002 and
lived with Mother most of her life until March 23, 2010, when she was detained
in foster care. Mother had an extensive
history with child protective services
involving E.M. and her two older sons.
Before detaining E.M., respondent Riverside County Department of Public
Social Services (DPSS) attempted to provide Mother with preplacement,
preventative services following a January 31, 2010, referral.
According to the referral, six or
seven people were living in Mother’s one-bedroom apartment with Mother and
E.M., and there was “constant traffic in an[d] out of the apartment throughout
the day and night.” The referral further
alleged that Mother used drugs and had E.M. go outside “when her drug friends
come over.” Mother had not paid rent in
two months and was in the process of being evicted.
Mother denied the allegations and
claimed the only people living in her apartment were E.M., herself, and her
boyfriend. Mother’s adult son
occasionally stayed in the apartment, and her minor son was living with an
aunt.
E.M.’s father was not living in E.M.’s household and had not seen
E.M. for over a year, though he claimed he kept in contact with E.M. by
telephone.
In 2005, Mother’s fourth child,
her then 12-year-old daughter, died tragically in a house fire. According to Mother, the daughter’s friend
was spending the night in Mother’s home and brought a long-stick candle, which
fell during the night, igniting the fire.
The friend left the home without waking the daughter. Mother was able to get E.M. out of the home
safely, but she said her life had not been the same since the death of her
older daughter. Before the fire, Mother
had stable employment and was able to provide for her family, but afterward she
entered into a depression, lost her job, and her credit score decreased. Mother had not been evaluated for depression
and reported never taking any medications for depression. She had received counseling after the fire
through the GAIN program.
The social worker discovered that
Mother’s “live-in” boyfriend had an extensive criminal history, was on parole,
and admitted using marijuana, but denied using any other drugs or selling any
drugs out of Mother’s apartment. Mother
claimed her boyfriend did not use drugs and only drank socially. She also denied using drugs or having a
history of using drugs, and said she would not subject E.M. to harm “in any
way.” The boyfriend said he would “stay
out” of Mother’s apartment.
In February 2010, E.M. was
dressed “clean and appropriately” but had numerous unexcused “tardies” at
school and, according to school personnel, was “usually picked up late” by
Mother or Mother’s boyfriend. There was
a time when the school was unable to contact Mother. The social worker told Mother that her
boyfriend was not an appropriate caregiver for E.M. and E.M. should not be left
with him unsupervised. The boyfriend
initially agreed, but subsequently failed, to submit to on-demand drug
testing. On March 11, Mother tested
negative for all substances, but her creatinine level was 65.8.
Mother claimed she had not paid
the rent on her apartment because her landlord refused to fix several
problems. On March 4, Mother reported
that her utilities had been turned off, and the social worker told her that
E.M. could not live in her apartment without utilities. Mother agreed that she and E.M. would stay
with E.M.’s maternal grandmother until Mother obtained approval to move to
another residence. Mother’s current
landlord wanted her to move out.
On March 17, the social worker
discovered that E.M. had been staying in Mother’s apartment, without
utilities. Mother’s boyfriend was also
still staying in the apartment and picking E.M. up from school. The maternal grandmother said that E.M. had
stayed with her only one night since March 4, and would “start[] ‘whining’” for
Mother because she was so attached to her.
Thus, on March 17, Mother signed
a “safety plan” agreeing that (1) she and E.M. would move in with the maternal
grandmother until she was able to get another apartment, (2) she would not
allow her boyfriend to have unsupervised contact with E.M., and (3) she would
submit to an on-demand drug test on March 18.
The maternal grandmother also signed the safety plan and agreed to contact
DPSS if Mother failed to comply with the plan.
Mother was told that the safety plan was a “preplacement preventive
measure” and her failure to comply with the plan would result in court
intervention. The social worker
transported E.M. to the maternal grandmother’s home.
On March 22, the maternal
grandmother reported that Mother left her home with E.M. on March 19 after
receiving “her income tax.” The maternal
grandmother said E.M. was “rebellious” and she did not want to be responsible
for her. Also on March 22, a tenant at
Mother’s apartment complex reported there were several individuals in Mother’s
apartment, all smoking drugs, in the presence of Mother and E.M. At that point, DPSS decided to detain E.M.
out of Mother’s custody. A March 24 drug
test showed Mother tested positive for opiates on March 18, but had not
reported having a prescription pain medication.
B. The Dependency Proceedings (March 2010-October 2011)
1. Jurisdiction and
Disposition (April 2010)
On March 25, 2010, DPSS filed a
petition alleging Mother had “demonstrated a limited ability to protect” E.M.,
placing E.M. at risk of harm.
(§ 300, subd. (b).) At a
contested jurisdictional/dispositional hearing on April 27, the court found the
allegations of an amended petition true.
The court found Mother had failed to benefit from preplacement,
preventative services, including “counseling referrals, parenting training,
public assistance services, substance abuse treatment, on demand drug testing
and the development of a safety plan . . . .” The court also found that Mother violated the
safety plan by allowing E.M. to live in her apartment for three weeks without
utilities and had placed E.M. at additional risk of harm by continuing to
expose her to Mother’s live-in boyfriend, who abused drugs, had an extensive
criminal history, and was arrested for possessing methamphetamines on April
4.
E.M. was declared a dependent and
continued in confidential foster care.
The court ordered reunification services and supervised visitation for
Mother and E.M.’s father.[2]
Mother’s case plan required her
to complete general counseling, parenting education, a substance abuse program,
substance abuse testing, a psychological evaluation, and a medical evaluation. From the outset, it was unclear whether
Mother would comply with her case plan.
She missed three drug tests during April 2010. Before the April 27 hearing, she was referred
to counseling, parenting education, and a substance abuse program, but refused
to discuss her case plan with the social worker.
2. The Six-month Review
Hearing (November 2010)
In a November 2010 six-month
status review report, DPSS described Mother as “late to start” with her case
plan. She did not attend her referred
counseling services, but completed a 45-day inpatient treatment program in
September 2010 and received counseling services through that program. She was “enjoy[ing]” a parenting course but
was unable to explain how she was benefitting from the course. She tested negative for all substances on
October 28.
Mother completed a psychological evaluation on
October 21. She was 90 minutes late to
her first appointment and 70 minutes late for her second. The psychologist, Dr. Robert Suiter, noted
Mother appeared unconcerned that she was late even though she was being
evaluated for having E.M. returned to her.
Mother presented with “a combination of affective difficulty and very
significant personality traits reflective of a personality disorder.” Mother frequently contradicted herself, could
not adequately or coherently describe the reason E.M. was removed from her
care, and was “remarkably prone to minimize or rationalize any difficulties she
has had in her living situation or with men she has been living with.”
In the opinion of Dr. Suiter,
Mother’s affective difficulty and personality disorder “seriously impact upon
her abilities to adequately respond to intervention strategies making it
extremely unlikely she will benefit from such interventions.” Dr. Suiter believed it would be “detrimental”
to E.M. to return her to Mother’s care.
DPSS described E.M. as mentally
and emotionally stable, very outgoing, and kind. She was benefiting from counseling and had
shown “great improvement” at her new elementary school. Her new foster mother, with whom she had been
living since September 30, was helping her daily with her homework.
Since March 26, Mother had
consistently attended her weekly supervised, two-hour visits with E.M. Initially, Mother brought friends and
different men to the visits even though she was instructed not to. The friends and Mother engaged in
“inappropriate conversation[s]” with E.M., such as telling her that Mother
planned to kidnap her. The foster mother
also received telephone calls from friends of Mother, saying they were family
members and wished to speak with E.M.
After completing her inpatient
program, Mother stopped bringing friends with her to the visits, and during
October she maintained “consistent and appropriate supervised visitation” with
E.M. Still, Mother did not attend a
scheduled appointment to discuss the possibility of unsupervised visits, did
not request a follow up appointment, and did not request unsupervised visits
with E.M.
Mother also refused to disclose
her living arrangements to the social worker until November 3, and the social
worker was still concerned about the company Mother was continuing to keep,
which was part of the reason for E.M.’s removal. Following the completion of her inpatient
program, Mother was instructed to move in with her mother or move into a sober
living home.
Mother was living in a sober
living home with a man named Will whom she had been dating for two months and
described as her fiancé. It was reported
to DPSS that after Mother completed her inpatient program in September, she
“went back to the ‘riverbottom’ in Riverside, a gathering spot that she used to
frequent with her friends before her case began.” The social worker understood that Mother met
Will at the “riverbottom.”
3. The 12-month Review Hearing
(June 2011)
At the contested 12-month review
hearing on June 21, 2011, the court terminated Mother’s services and set a
section 366.26 hearing. The court denied
Mother’s request for further services and rejected her claim that she had not
been provided with adequate services to address her psychological issues.
Since April 22, 2011, Mother had
been living in “transitional living apartments” with another resident in the
program. She lived with Will in a sober
living home from October 2010 to February 2011, then moved in with her mother,
then moved into the transitional living apartments. Will was still her fiancé, and DPSS
discovered he, too, had an extensive criminal history. Mother expressed no understanding of the
danger this presented to E.M. Will
called DPSS and “yelled in a threatening tone” to dispute the results of his
criminal records check. Mother was
receiving $200 in monthly food stamps and said Will also helped support her
with his $1,486 in monthly income.
Mother’s counselor described her
as “very depressed with limited coping skills,” and as “very focused” on
marrying Will. When the subject of
“unhealthy men” or Will came up, Mother was evasive and secretive with her
counselor. Mother was recently diagnosed
with bipolar disorder, but was not taking appropriate medication to treat
it. The social worker believed Mother
had not benefited from her counseling, and continued to place the needs of her “questionable
friends and men” above the needs of E.M.
Mother was continuing to exhibit
“poor boundaries” with E.M. during visits.
She discussed things with E.M. that made E.M. uncomfortable and that
were inappropriate to discuss. Mother
told E.M. that Will grabbed her by the neck, would not let her go, and pushed
her into another room. E.M. was
“distraught” by this and said Mother had told her this before. Mother also had E.M. pose with Will for a
photograph, which made E.M. “very uncomfortable.” After being redirected, Mother stopped bringing
Will to the visits.
Nevertheless, in May 2011, E.M’s
foster mother reported that E.M. acted “different and strange” and was fidgety,
unorganized, and unable to focus or concentrate following her visits with
Mother. During one visit, the foster mother
overheard Mother asking E.M. whether she would be “excited to go home” with
Mother or the maternal grandmother, and this made E.M. “very uncomfortable and
cause[d] issues for her.” During an
unsupervised visit E.M. had with her father, the father allowed Mother to speak
with E.M. on the telephone, and Mother told E.M. she had a room set up for
her. This made E.M. “very anxious.”
In therapy, E.M. was “open[ing]
up more about her concerns and fears.”
E.M. had only recently revealed that she had been sexually abused by two
of Mother’s former boyfriends. She
feared returning to Mother’s care but also feared disappointing Mother if she
told her she wanted to stay with her caregiver.
E.M. began therapy as a “very parentified” child who focused on the needs
of her parents, but over the previous 16 months she had evolved from a “very
scared and closed girl, to a very open, happy, and confident girl,” who was
involved in many activities and was excelling in school. E.M. expressed a desire to remain with her
foster mother, where she felt safe and
secure. E.M.’s therapist believed that
continued visits with Mother were detrimental to E.M.’s mental health.
4. Mother’s Section 388 Petition (October
2011)
On October 18, 2011, the day
before the section 366.26 hearing, Mother filed a section 388 petition
requesting that the court modify its June 2011 order terminating her services,
grant her six months’ additional reunification services, and vacate the section
366.26 hearing. The court heard and
denied the petition immediately before conducting the section 366.26 hearing on
October 19.
In support of her section 388
petition, Mother presented evidence that she was still living in the MFI
transitional living apartments where she had been living since April 22. The MFI program provided sober living housing
for six months to one year for single mothers with children. No men were allowed in the facility and
residents were not allowed to have visitors in their apartments.
Residents were required to obtain
employment within 90 days, follow all rules, attend 12-step meetings four times
weekly, and take random drug tests.
Mother had followed all of the rules of the program, tested negative on
all drug tests, provided proof of job searches, and was enrolled in the UEI
college for medical billing and insurance coding in an effort to find
employment.
Mother also presented evidence of
a September 18 psychiatric evaluation indicating that her thoughts were “goal
directed,” her attention and concentration were “good,” her memory, judgment,
and insight were “fair,” and she was not a risk of danger to herself or
others. The evaluation also indicated
that Mother’s drug of choice was marijuana or “THC” and she last used the drug
in July 2010. Mother also presented
photographs of herself and E.M., showing that she and E.M. were closely
bonded.
In considering the petition, the
court also considered DPSS’s section 366.26 report filed on September 28,
2011. In denying the petition, the court
found that Mother’s circumstances had not changed, but commended her for
attempting to change her circumstances.
(§ 388.) The court also
concluded that E.M.’s best interests would not be served by granting the
petition. (Ibid.)
5. The Section 366.26 Hearing
(October 2011)
At the section 366.26 hearing,
DPSS recommended terminating parental rights and placing E.M. for adoption, and
submitted the matter based on its recommendation and its September 28 review
report. The report described the history
of the proceedings as outlined above, and descried E.M.’s mixed feelings about
being adopted. E.M. was age nine and in
the fourth grade.
On August 30, the social worker
spoke to E.M. at her school. E.M.
expressed a fear that Mother would not be able to protect her and she would not
know what to do if she needed help. She
felt safe with her caregiver, whom she said had taken good care of her and was
someone she could “count on,” but she did not want to lose contact with either
of her parents. She loved her parents
and was concerned that she would not know how to find them when she was an
adult. She did not believe telephone
contact with her parents was sufficient because she “want[ed] to make sure that
her parents [were] okay.”
E.M.’s therapist still believed
that continued visits or contact with Mother was “very detrimental to the
overall mental health and stability” of E.M.
The social worker believed that adoption and limiting contact with her
parents would be beneficial to E.M. because it would allow her to “grow up in a
stress free environment” and “be a little girl and not the parent.”
Mother objected to terminating
parental rights and selecting adoption as E.M.’s permanent plan. Mother’s counsel pointed out that E.M. did
not want to lose contact with Mother, and asked the court to place her in
long-term guardianship so she could maintain a relationship with Mother. In the alternative, counsel asked the court
to send the case to mediation for a postadoption contract. Counsel argued that if parental rights were
terminated and E.M. never heard from Mother again, E.M. would have “lingering
questions” and would “always want to know” Mother’s whereabouts and
welfare. A mediated, postadoption
contract would safeguard E.M.’s “emotional wellbeing,” counsel argued.
In response, county counsel
emphasized that E.M. needed permanency, and was living in a home where she felt
safe and protected. The caregiver was
willing to send photographs to Mother and allow occasional telephone calls, but
given the difficulties E.M. was having following visits with Mother, county
counsel argued it would be in E.M.’s best interest not to refer the case for a
postadoption contract and allow the prospective adoptive caregiver the option
of terminating all contact if appropriate.
At the conclusion of the hearing,
the court found that terminating parental rights would not be detrimental to
E.M. because none of the exceptions to the adoption preference applied
(§ 366.26, subd. (c )(1)(A), (B)), and accordingly terminated parental
rights and ordered E.M. placed for adoption.
The court ordered preference to be given to the adoption application of
E.M.’s current caretaker over any other application.
III. DISCUSSION
Mother
claims that insufficient evidence
supports the court’s determination that the parental benefit exception to the
adoption preference did not apply, and the order terminating parental rights
and placing E.M. for adoption must therefore be reversed. We disagree.
A. Applicable Legal Principles
At a permanency planning
hearing, the juvenile court determines a permanent plan of care for a dependent
child. (In re Casey D. (1999) 70
Cal.App.4th 38, 50.) Permanent plans
include adoption, guardianship, and long-term foster care. (In re S.B. (2008) 164 Cal.App.4th
289, 296.) “Adoption, where possible, is
the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 573.) Adoption necessarily involves
terminating the legal rights of the child’s natural parents, but guardianship
and long-term foster care leave parental rights intact. (Id. at
p. 574.) “Guardianship, while a more
stable placement than foster care, is not irrevocable and thus falls short of
the secure and permanent future the Legislature had in mind for the dependent
child.” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)
To avoid termination of
parental rights and adoption, a parent has the burden of showing that one or
more of the statutory exceptions to termination of parental rights set forth in
section 366.26 subdivision (c)(1)(A) or (B) apply to the child. (In re
Scott B. (2010) 188 Cal.App.4th 452, 469 (Scott B.); In re Celine R.
(2003) 31 Cal.4th 45, 53.)
The exceptions “merely permit the court, in exceptional circumstances (In
re Jasmine D. [(2000) 78 Cal.App.4th 1339,] 1348-1349), to choose an option
other than the norm, which remains adoption” (In re Celine R., supra, at p. 53).
Under the parental benefit exception (§ 366.26, subd.
(c)(1)(B)(i)), the court must “find[] a compelling
reason for determining that termination [of parental rights] would be
detrimental to the child” (§ 366.26, subd. (c)(1)(B), italics added;
The parental benefit
exception applies when two conditions are shown: the parent has “maintained regular visitation
and contact with the child and the child would benefit from continuing the
relationship.” (§ 366.26, subd.
(c)(1)(B)(i); In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In order to show that the child would benefit
from continuing the relationship with the parent, the parent “must do more than
demonstrate . . . an emotional bond with the child”; the parent “must
show that he or she occupies a ‘parental role’ in the child’s life.” (In re Derek W. (1999) 73 Cal.App.4th
823, 827.)
The parent must show that
the parent-child 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 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 balancing of
competing considerations must be performed on a case-by-case basis and take
into account many variables, including 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. [Citation.]
When the benefits from a stable and permanent home provided by adoption
outweigh the benefits from a continued parent/child relationship, the court
should order adoption.’
[Citation.]” (In re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1349-1350 (Jasmine
D.).) In all section 366.26
proceedings, the court “shall consider the wishes of the child and shall act in
the best interests of the child.” (§
366.26, subd. (c)(1)(h)(1).)
B.
In considering a claim that
insufficient evidence supports the juvenile court’s determination that the
parental benefit exception did not apply, we review the evidence in the light
most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in support of the court’s
ruling. (In re Autumn H., supra,
27 Cal.App.4th at p. 576.) If
substantial evidence supports the court’s determination, we must affirm. (In re S.B., supra, 164 Cal.App.4th at
p. 298.)
That said, appellate courts have
variously applied the substantial evidence test and the abuse of discretion
test in considering challenges to juvenile court determinations that the
parental benefit exception to termination did not apply. (Scott
B., supra, 188 Cal.App.4th at p. 469.)
There is little, if any, practical difference between the two. (Ibid.) As explained in Jasmine D.: “‘[E]valuating
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
. . . no judge could reasonably have made the order that he did.’
. . .”’ [Citations.]” (Jasmine
D., supra, 78 Cal.App.4th at p. 1351.)
But as the court in
of discretion standard has traditionally been applied to custody determinations
and “seems a better fit” for reviewing a juvenile court’s determination that
the parental benefit exception did not apply.
(Jasmine D., supra, 78
Cal.App.4th at p. 1351.) This is so
because the court must find “a compelling reason” for applying the exception,
and this is “a quintessentially discretionary determination.” (Ibid.) As we explain, under either standard the
juvenile court here properly determined that the parental benefit exception did
not apply.
C. Analysis
DPSS does not dispute that Mother
maintained regular visitation and contact with E.M. Nonetheless, substantial evidence shows, and
the court reasonably determined, that the benefits E.M. would
realize from being adopted outweighed the benefits she would realize from
continuing her relationship with Mother.
E.M.
felt safe, secure, and well cared for with her prospective adoptive
mother. She had grown from an insecure
and frightened child to a confident, outgoing, and kind nine-year-old
child. She had also shown great
improvement in school and was participating in many activities. Still, E.M. was very “parentified” and
worried about the needs of Mother, whether Mother would be “okay,” and whether
she would be able to find Mother when she was an adult if she were adopted and
lost contact with Mother. For this
reason, E.M. was conflicted about being adopted. She said she wanted to be adopted but also
wanted to live with Mother, even though she did not believe Mother would be
able to protect her. In the opinion of
E.M.’s therapist, E.M.’s continued visits with Mother were detrimental to
E.M.’s mental health. The visits were
causing E.M. distress and discomfort, and she was fidgety and unable to focus
following the visits.
Despite the progress Mother
had made in addressing her substance abuse problem and completing her case plan
at the time of the section 366.26 hearing, Mother had a lengthy history of
placing the needs of herself and her various boyfriends, two of whom had
sexually abused E.M., above the needs of E.M.
There was ample reason to believe that Mother’s behavior would not
change. During visits with E.M., Mother
shared inappropriate information with E.M., causing E.M. much distress and
discomfort. The psychologist who
evaluated Mother did not believe she was able to benefit from intervention.
Mother relies on
reversed because the courts erroneously determined that the parental benefit
exception did not apply. (
472; In re S.B., supra, 164
Cal.App.4th at pp. 300-301.) In both
cases, substantial evidence showed the children would be “greatly harmed” if parental rights were terminated. (In re
Angel B., supra, 97 Cal.App.4th at p. 466.)
That is not the case here.
Scott B. involved an 11-year-old boy,
Scott, who had “substantially disabling” autism, ADHD (attention deficit
hyperactivity disorder), and needed special education services. (Scott
B., supra, 188 Cal.App.4th at pp. 455, 471.) Scott was removed from his mother’s care at
age seven due to physical abuse by his maternal grandmother, violence between
his mother and her brother, unsanitary conditions in the home, and Scott’s poor
hygiene. (Id. at p. 455.) Before
removal, Scott was “very withdrawn, practically nonverbal,” and did not use
words to show feelings but “growl[ed] and thrash[ed] about,” “struggled with social
interaction,” failed to regularly attend school, and “lacked adequate toilet
training.” (Id. at p. 457.) In foster
care, Scott became “‘quite verbal and expressive,’” was comfortable with adults
and other children, took care of his hygiene, and did well in school. (Id.
at pp. 457-458.)
During weekly visits,
Scott’s mother would share inappropriate information with him and his behavior
would regress to growling and whining. (
458-459, 461.) Following the visits it
would take time for Scott to readjust in his foster home. (Id.
at p. 458.) Scott’s mother was unable to
adequately care for him, but Scott was very emotionally attached to her. (Id. at
pp. 458-459.) During court hearings, he
would go directly to his mother and sit next to her. (Id. at
p. 459.) After his mother had surgery
due to a serious medical condition, Scott said he no longer wished to be
adopted. He tried to run away from his
foster home several times, and was losing sleep because he worried about his
mother. (Id. at pp. 462-463.)
At the section 366.26
hearing, Scott spontaneously told the court he wanted to be adopted so that he,
his mother, and his foster family “could all ‘go somewhere fun.’” (Scott
B., supra, 188 Cal.App.4th at p. 466.)
It did not appear that Scott understood that if he were adopted, his
adoptive parents could cut off his contact with his mother. (Id.
at pp. 466-468.) Also, the CASA
(court-appointed special advocate) had repeatedly reported that Scott had a “very
close relationship” with his mother, and disrupting that relationship would be
detrimental to Scott. (
In reversing the order
terminating parental rights, the court reasoned: “Mother provides stability to Scott’s
life. That is what adoption is supposed
to do, but it may not in this case.
Given Scott’s strong emotional attachment to Mother, his continued
precarious emotional state, and his history of regressing and running away when
he is stressed, there is a very good chance that he will have a meltdown if his
usual frequent visitation with Mother does not continue. The only way to avoid that serious emotional
and developmental setback and ensure that Scott’s usual visitation with Mother
continues is by court order.” (
472.) The court agreed with the
department’s statement that “‘what is at stake is the fundamental question of
whether Scott will continue to thrive, as he has done since being placed with
[his foster mother].’ Termination of
parental rights is unnecessary given that a legal guardianship will provide
Scott with stability in his life.” (
Here,
however, the juvenile court reasonably determined, and substantial evidence
showed, that terminating parental rights and discontinuing Mother’s
relationship with E.M. would not be detrimental to E.M. “To overcome the preference for adoption and
avoid termination of the natural parent’s rights, the parent must show that
severing the natural parent-child relationship would deprive the child of a
attachment such that the child would be greatly
harmed.” (In re Angel B., supra, 97
Cal.App.4th at p. 466.) The parent in
of the evidence indicated that Scott was at risk of suffering a serious
emotional and developmental setback if he were no longer able to see his
mother. This is not the case with
E.M.
Unlike Scott, E.M. is not
an emotionally fragile child with social difficulties and developmental special
needs. She is very confident and
outgoing, and emotionally stable. Unlike
Scott, there is no indication that E.M. will suffer an emotional or
developmental setback if parental rights are terminated and E.M. loses contact
with Mother. And unlike Scott, E.M. does
not have a positive emotional attachment to her Mother, or even an emotional
need for her Mother. Instead, she
worries that her Mother needs her.
E.M.’s therapist believed that continued visits with Mother were
detrimental to E.M.’s mental health. All
indications were that the termination order would allow E.M. to continue to
thrive, enjoy her childhood, and stop worrying about the welfare of
Mother.
In re S.B. involved a nine-year-old girl,
S.B., who was removed from her parents’ custody because their substance abuse
impeded their ability to care for her. (
293.) S.B. had a very close and
“positive” relationship with her father, who was unable to adequately care for
or reunify with her due to his physical and emotional health problems. (Ibid.) The father stayed sober and visited S.B.
three days a week. (Id. at pp. 293-294.) At the
section 366.26 hearing, a social worker testified that S.B. had a “consistent
and positive” relationship with her father, and a psychologist who completed a
bonding study testified that S.B. was at risk of harm if she were to lose her
relationship with her father. (
In re S.B. is distinguishable from the
present case because, unlike E.M., S.B. had a positive emotional attachment to her father. E.M.’s emotional attachment to Mother is not
positive; rather, it is based on E.M.’s feelings of responsibility for her
Mother’s welfare. Additionally, E.M. is
a strong and confident child, and there is no evidence she will be greatly
harmed if parental rights are terminated.
(In re Angel B., supra, 97 Cal.App.4th at p. 466.)
Thus here, there was no
exception. (§ 366.26, subd.
(c)(1)(B).) To the contrary, substantial
evidence shows, and the juvenile court reasonably determined, that the benefits
E.M. would realize from being adopted outweighed the benefits she would realize
from continuing her relationship with Mother.
(In re Autumn H., supra, 27
Cal.App.4th at p. 575.)
IV. DISPOSITION
The
order terminating parental rights and placing E.M. for adoption is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
HOLLENHORST
Acting
P.J.
RICHLI
J.
[1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
[2] The
court found that E.M.’s father was not a member of E.M.’s household and failed
to maintain consistent contact with E.M. or provide for E.M.’s needs. E.M.’s father stopped visiting E.M. and
failed to stay in contact with DPSS, and his services were ultimately
terminated. He is not a party to this
appeal.
