In re A.M.
Filed 1/8/13 In
re A.M. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD
APPELLATE DISTRICT
(Butte)
----
In re
A.M., a Person Coming Under the Juvenile Court Law.
BUTTE
COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
R.M.,
Defendant and
Appellant.
C070727
(Super. Ct. No. J35338)
R.M.
(mother) appeals from the juvenile court’s order terminating her
the trial court erred by finding the beneficial parental relationship exception
to terminating parental rights did not apply.
We disagree and shall affirm.
BACKGROUND
Petition and Early Proceedings
On May 25, 2010,
Department of Employment and Social Services (the Department) filed a section
300 petition as to four-year-old minor, alleging that mother’s substance abuse
problem put minor at risk. Mother had
recently tested positive for methamphetamine.
She had lost custody of minor’s half sister, Marisol G., in 2003 due to
methamphetamine abuse, and her parental rights had been terminated in
2006. When minor’s half brother, Daniel
A. (Daniel), was born in December 2009, mother and Daniel tested positive for
methamphetamine; he had been in foster care since January 2010. The identity and whereabouts of minor’s
father were unknown.
The
Department alleged further that when Daniel was detained from mother, minor was
required under the Department’s safety plan to be living with Daniel’s paternal
grandmother, who was also minor’s godmother--this was the reason minor was not
also detained from mother at the same time as was Daniel. At the time of minor’s detention, minor was
suspected to be living with mother again, and Daniel’s father, Mario A., who
had moved out but then moved back in with mother, was testing positive or
failing to test for methamphetamine, as was mother.
In
June 2010, the juvenile court found that minor came within its jurisdiction and
detained him. Minor was placed in a
foster home with Daniel. At a
consolidated disposition hearing as to minor and six-month review hearing as to
Daniel held on July 27, 2010, the juvenile
court ordered reunification services for mother, but terminated them for
Daniel’s father.
Six-Month Review Hearing
The
Department recommended terminating mother’s services and setting a section
366.26 hearing as to both minor and Daniel in a status review report filed December 23, 2010. According to the report,
minor and Daniel, still placed together, were closely bonded, and their foster
parents were willing to provide permanency for them if reunification failed.
Minor
was developmentally on track, but having difficulty in kindergarten; an
Individualized Education Plan (IEP) had been requested. He was adjusting well in placement, but felt
anxious about mother’s visits and her well-being in general. Mother had relapsed on methamphetamine
several times, had developed an immune system disorder, and had suffered
several bouts of illness; partly for these reasons, her participation in
services and visitation had been minimal.
She continued to see Daniel’s father every day, which the Department
considered one of mother’s multiple “inappropriate relationships with active
drug users.†She was not taking
prescribed medication for mental health problems and was not treating her
immune-suppressive condition. She had
tested positive for methamphetamine four times since mid-August 2010, although
she now claimed to have gone three weeks since her last use. Her visitation had been inconsistent, with
numerous missed visits, although the visits went well when she attended. Because of her inability to stay drug-free or
to follow up with medical treatment, her lack of regular contact with minor and
Daniel, and her failure to make significant progress in services, minor’s risk
if returned to her would be “very high.â€
On
February 3,
2011, the juvenile court terminated
mother’s services as to Daniel only and set a 12-month permanency hearing as to
minor.
Twelve-Month Review Hearing
The
Department recommended terminating mother’s services as to minor in a status
review report filed June 10, 2011. The report alleged that mother had been
evicted from her home and was now living with Mario A. and his parents. She had recently had suicidal ideation and
hallucinations. She was not
participating in her dual diagnosis treatment program, her 12-step program,
substance abuse counseling, or mental health counseling, nor was she treating
her medical problems. She was the
subject of an active criminal prosecution for animal abuse after an emaciated
dog was removed from her care. After 18
months, she continued to test positive for methamphetamine or to fail to appear
for testing. She still missed many
visits with minor “due to a variety of reasons including illness, drug use,
lack of transportation, and court appearances.â€
Minor
continued to adjust well to his placement and remained bonded to Daniel. He was still having difficulties at school
and emotionally. He continued to feel
anxiety about mother’s inconsistent visitation and her general well-being. He also had trouble with attachment and
relationships--for example, he would approach strange adults and tell them he
loved them. The foster parents had
completed a home study and were in the process of adopting Daniel.
The
juvenile court held a contested 12-month review hearing on August 10, 2011, at which case-carrying social worker Debora Joulian and mother testified.
Joulian
testified that although mother had a “processing disorder†and a low IQ, she
was a good mother when clean and sober and when she was “present†for minor,
however, the Department had already provided her with two years of services
(including those provided as to Daniel), and her recent 12-step attendance
sheets looked forged. Mother made good
efforts during visitation, but had trouble managing minor’s tantrums. He showed affection toward her and regularly
asked to go home with her, but he also asked to go home with every adult woman
he saw; he had a “reactive attachment disorder.â€
Mother
testified that she had been participating in dual diagnosis treatment and
Narcotics Anonymous, although she had missed some meetings. She insisted that she had had no recent
“dirty†drug tests and had been clean and sober for 60 days. Her sponsor filled out her attendance
sheets. She had seen her counselor four
times in the last six months, and she was not taking medications because they
were not helping her or she did not need them.
According to mother, she had tried to visit minor regularly, but the
Department did not always schedule regular visits for her; she had never missed
a scheduled visit. Minor’s recent
tantrums were unusual. Whenever she
visited him, he came running to her, hugged her, called her “Mom,†and said he
wanted to come home.
Finding
that mother had received reasonable services but had participated minimally and
that her prognosis was poor, the juvenile court terminated her services and set
a section 366.26 hearing.
Section 366.26 Hearing
The
Department’s adoptions assessment filed November 17, 2011, opined that minor was likely to be adopted and recommended
terminating mother’s parental rights.
Minor had adjusted well to his foster home and to his foster parents,
who wanted to adopt him and had passed a home study. He had lived with them for 17 months, called
them “Mom†and “Dad,†and had substantial emotional ties to them, as well as to
the other children in the home.
Minor
still displayed great anxiety, fear, and worry, particularly as to mother, for
whom he requested help. He had not yet
been asked about his feelings concerning adoption because of his developmental
delays and anxiety, especially regarding mother. Mother had not visited minor since October 27, 2011--the assessment observed that while minor “[had] an attachment to
[mother], he worries about her and her health to his detriment.†The assessment concluded that the benefit of
adoption by a stable family outweighed any benefit to minor from continuing his
relationship with mother, and termination of her parental rights would not be
detrimental to him.
The
Department filed a section 366.26 report on November 22, 2011, which also recommended termination of parental rights and
adoption. Mother had been visiting minor
monthly, according to the report, but refused to test for drugs while there,
and at times acted inappropriately during visits. Minor was doing “relatively well†in the
prospective adoptive home, where the foster parents were committed to him, had
obtained services for him, and had the time, flexibility, and patience to meet
his physical and emotional needs; the foster family was “soothing and calmingâ€
to him.
On
March 6, 2012, the day of the section 366.26 hearing, mother filed a section
388 petition seeking minor’s return under a family maintenance plan or a
long-term plan of foster care or legal guardianship.
366.26 hearing that same day, and also heard evidence regarding the section 388
petition. Mother, social workers John
Dunlap and Debora Joulian, and adoptions specialist Joyce Felch testified.
Mother
testified that she was living with Mario A. and his family, in the home where
minor had lived for three years before his detention.
A. had been sober for six months. Mother
had been sober since mid-2011 and attended “meetings†twice a day, Bible
studies, and counseling; she was on step 2 in her 12-step program.
Dunlap,
the social worker who prepared the section 366.26 report, testified that mother
had visited monthly. Minor had never
spoken directly to Dunlap about whether he wanted to be adopted, and Dunlap had
not talked to him about his relationship to mother because other people were
discussing that with him. Dunlap felt
that minor cared for and loved mother and his godmother, but he also loved his
foster family. Dunlap had heard that
minor was sometimes sad after visits. By
all accounts, minor worried about mother.
Dunlap thought that the anxiety minor displayed was mainly due to his
uncertainty about the future. According
to Dunlap, either the foster father or the foster mother was always at
home. There were currently eight
children there, including minor and Daniel.
Mother’s charge that a babysitter in the home had hit minor was
determined to be unfounded. The foster
parents were interested only in adoption, not in legal guardianship.
Felch
testified that minor was somewhat developmentally delayed. He was very worried about mother; he asked
Felch, “Can you fix my mom?†Felch had
not interviewed him because of his delays and his anxiety. Felch had not observed mother’s visits with
him, primarily because they were inconsistent.
Felch had no concerns about minor’s attachment to the foster parents or
their ability to meet his needs. They
had always wanted to adopt him.
Joulian
testified that the relationship between minor and mother was positive; he
enjoyed their visits and benefited from the relationship. (Sometimes, however, he pushed her
away.) According to Joulian, severing
all contact with her would be detrimental to him because of his anxiety about
her; he was “a little bit parentified.â€
Although mother was loving and nurturing toward minor, she failed to act
parentally or set boundaries when he displayed tantrums and defiance like a
normal six-year-old. When she and his
godmother visited together, she let the godmother parent him. His relationship with the godmother was at
least as much a parent-child relationship as that which he had with mother.
Joulian
felt that minor worried a great deal about mother, including her physical
well-being, but she believed his current anxiety was more about the uncertainty
of his future than about mother. Joulian
had no concerns about conditions in the foster parents’ home, which was
well-organized despite the large number of children there. Minor was physically affectionate with the
foster parents and the other children in the home. The foster mother took him everywhere and was
always “there for him.†Permanence
through adoption would help minor to alleviate his anxiety.
The
juvenile court denied mother’s section 388 petition and then found that mother
had not established the applicability of the beneficial parental relationship
exception to adoption: The court found
that “although [mother] has maintained regular visitation and contact, she has
not established that the benefit to the child in maintaining the parent-child
relationship outweighs the benefit of adoption.†The court specifically noted that minor’s
concern over mother’s health and well-being did not establish the parental
relationship exception to adoption.
The
court thereafter terminated mother’s parental rights and ordered adoption as
the permanent plan for minor.
DISCUSSION
Exception
Mother
contends the juvenile court erred by failing to apply the beneficial parental
relationship exception to adoption and thus avoid terminating her parental
rights.
Law
“‘At
the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a
minor child. . . . The
permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] If the court finds
the child is adoptable, it must terminate parental rights absent
circumstances under which it would be detrimental to the child.†(In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368.)
There
are only limited circumstances permitting the court to find a “compelling
reason for determining that termination [of parental rights] would be
detrimental to the child.â€
(§ 366.26, subd. (c)(1)(B).)
One of these is where the parent has maintained regular visitation and
contact with the child and the
relationship, often referred to as the beneficial parental relationship
exception. (§ 366.26, subd.
(c)(1)(B)(i).) The “benefit†to the
child 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.
(1994) 27 Cal.App.4th 567, 575 (Autumn H.); In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) Even frequent and loving contact is not
sufficient to establish this benefit absent a significant, positive, emotional attachment between parent and
child. (C.F., supra,
193 Cal.App.4th at p. 555; Autumn H., supra, 27 Cal.App.4th at p. 575.)
“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
the parent’s rights will prevail over the Legislature’s preference for adoptive
placement.†(In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (
and Standard of Review
The
party claiming the exception has the burden of establishing the existence of
any circumstances which constitute an exception to termination of parental
rights. (C.F., supra, 193 Cal.App.4th
at p. 553.)
As
the parent must establish the existence of the factual predicate of the
exception--that is, evidence of the claimed beneficial parental
relationship--and the juvenile court must then weigh the evidence and determine whether it constitutes a
compelling reason for determining detriment, substantial evidence must support
the factual predicate of the exception, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315; In re K.P. (2012) 203 Cal.App.4th 614, 622.) “On review of the sufficiency of the
evidence, we presume in favor of the order, considering the evidence in the
light most favorable to the prevailing party, giving the prevailing party the
benefit of every reasonable inference and resolving all conflicts in support of
the order.†(Autumn H., supra,
27 Cal.App.4th at p. 576.)
“‘[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.’†(Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Because
the trial court found regular visitation, we shall assume that prong was
satisfied, but note that our review of the record reveals irregular
visitation. But even assuming mother met
the first requirement to establish the exception, she could not meet the
second. Mother established neither that
she occupied a parental role in
minor’s life, nor that the benefits of her relationship with him outweighed
those of adoption.
Even
“frequent and loving contact†is insufficient to establish the “benefit from
continuing the relationship†(§ 366.26, former subd. (c)(1)(A), now subd.
(c)(1)(B)(i)) contemplated by the statute (In re Beatrice M. (1994) 29 Cal.App.4th
1411, 1418). After it became apparent
that mother would not reunify with minor, the juvenile court had to find an
“exceptional situation existed to forego adoption.†(Autumn H., supra, 27 Cal.App.4th
at p. 576.) The juvenile court
determined minor would not benefit from continuing his relationship with mother
to such a degree that termination of parental rights would be detrimental to
him. Mother bore the burden to
demonstrate the statutory exception applied and failed to make the requisite
showing. (See C.F., supra, 193
Cal.App.4th at p. 553.) Therefore, the
court did not err in terminating parental rights.
By the
time of the section 366.26 hearing, minor, now six years old, had been living
with the prospective adoptive parents for almost two years. As we noted ante, the record is not clear as to how many of his first four
years of life he actually lived with mother--even before formal removal, minor
was not consistently living with mother due to her failure to make her
residence safe for him to occupy. But
even assuming the full four years, he had lived one third of his life away from
her. He had developed strong emotional
bonds to the foster parents and the children in the home, including Daniel, his
half brother. He called the foster
parents “Mom†and “Dad.†They worked
diligently to meet his special needs. (
454, 467 [child’s age, portion of life spent in biological parent’s custody,
and particular needs must be considered in assessing whether a relationship is
important and beneficial to child].)
Furthermore,
mother’s relationship with minor was not unequivocally parental. When mother and the godmother visited
together, she deferred to the godmother and let the godmother act as the
parent. Minor seemed at least as closely
bonded to the godmother as to mother.
Moreover, he displayed a “parentified†anxiety about mother’s
well-being, which is not an appropriate feeling for a child and certainly not
an appropriate basis for a healthy, parent-child relationship. The record is devoid of evidence that would
permit, much less compel, a finding that minor’s relationship with mother was
“sufficiently strong that the child would suffer detriment from its
termination†(Beatrice M., supra, 29 Cal.App.4th at
p. 1418) or that it established a “compelling reason for
determining that termination would be detrimental to the child†(§ 366.26,
subd. (c)(1)(B), italics added).
Considering
all the evidence, the juvenile court could properly conclude that any benefit
of minor’s continuing his relationship with mother did not rise to the type of
substantial, positive, and emotional attachment that would cause minor great
harm if severed, and did not outweigh the benefits of a stable and permanent
home.
Mother
relies mainly on In re Scott B.
(2010) 188 Cal.App.4th 452 (Scott B.). There, however, the mother’s parental
relationship with the 11-year-old minor was far stronger than here, he had
spent most of his life with her before being placed with his foster family, he
repeatedly said he would prefer to live with her, he accepted the idea of
adoption only because he thought it would mean he could live with her as well
as his foster parents, and there was a strong possibility that if he were
adopted his foster parents would cut her completely out of his life. (Scott
B., supra, 188 Cal.App.4th at pp.
471-472.) Under these highly unusual
circumstances, the appellate court found that legal guardianship was the only
option which would provide the minor with stability. (Scott
B., supra, at pp. 472-473.) Because
none of the unusual facts found in Scott
B. exist here, that case does not assist mother.
DISPOSITION
court’s order terminating parental rights is affirmed.
DUARTE , J.
We concur:
RAYE , P. J.
NICHOLSON , J.
name="_ftn1" title="">[1] Further undesignated
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Although mother originally
included the juvenile court’s denial of her section 388 petition in her notice
of appeal, she failed to argue error as to the section 388 petition in her
briefing. Consequently we deem it
abandoned. (See
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.)
