In re Robert V.
Filed 1/16/13 In
re Robert V. CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ROBERT
V. et al., Persons Coming Under the Juvenile Court Law.
B241292
(Los Angeles County
Super. Ct. No. CK83608)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ELAINE M.,
Defendant and Appellant.
APPEAL from an
order of the Superior Court of
County.
Daniel Zeke Zeidler, Judge. Affirmed.
Konrad S. Lee,
under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli,
Acting County Counsel, James M. Owens, Assistant County Counsel, and Jeanette
Cauble, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
Elaine M.
(mother) appeals from a juvenile court
order terminating her parental rights to Robert V. (Robert, born Aug.
2001), Jazmine V.
name="_ftnref1" title="">[1] (Jazmine, born Oct. 2003),
and Emily V. (Emily, born May 2008). She
contends that the juvenile court erred in refusing to apply the parental
benefit exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)).
We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Section
300 Petition and Detention
On
August 13, 2010, the Department of
Children and Family Services (DCFS) filed a section 300 petition on behalf
of Gabriel C. (Gabriel, born June 1996),
Emily. The petition alleged that mother
and Robert, Sr. (father), the father of the three younger children, had a
10-year history of domestic violence.
The petition further alleged that mother used illicit drugs, including
methamphetamine, amphetamine, and marijuana, abused prescription drugs and
alcohol, and had mental and emotional problems.
Father was alleged to have abused amphetamine, methamphetamine, and
marijuana.
The
family had a prior child welfare history with DCFS. There had been three referrals, one of which
resulted in voluntary maintenance services. Mother had a 1994 arrest for possession of
illegal drugs, which was dismissed.
Father had been arrested on May 20, 2010, for a domestic violence
incident with mother during which he hit her in the eye in a public setting.
On
June 14, 2010, DCFS conducted a Team Decision Making (TDM) meeting, where it
was decided that mother and father would be provided with more voluntary family
maintenance services. However, on August
3, 2010, mother tested positive for amphetamine, methamphetamine, and marijuana.
tested positive for amphetamine and methamphetamine. DCFS detained the children.
During
her interview with the social worker, mother advised that she had been in an
abusive relationship with father for seven years; she admitted that she also
had used violence against him. She
denied ever neglecting the children. She
indicated that she took prescription medications due to a “meltdown†caused by
the domestic violence and problems at work.
She denied having a drinking problem and using methamphetamine, but she
admitted using marijuana occasionally.
She showed the social worker her “license†to use marijuana, and stated
that she only used it when the children were not around.
Father
admitted hitting mother in the eye during an argument. He admitted to years of domestic violence
between them. He did not believe that
mother was stable enough to care for the children. He stated that if mother got herself
together, then she would be a good mother and that she was strongly bonded to
the children.
Gabriel’s
father reported that mother had problems with substance abuse. He believed that mother was a good mother
when she was sober, but he wanted full custody of Gabriel and monitored visits
for mother until she showed good progress in her sobriety.
The
social worker then spoke to Robert. He
reported that he stayed with his paternal grandparents and that he saw his
mother a couple of days a month. He had
lived with his paternal grandparents during the entire year he was in third
grade; the year before, he had been living with his maternal
great-grandparents.
Robert
said that he did not see father hit mother in the eye in May 2010, but he
reported seeing father hit mother before that date. He denied being physically abused and denied
being exposed to illegal drug use.
Mary
informed the social worker that the children had been living with her and
father. She said that mother had moved
out two months prior, due to the domestic violence incident, and that mother
had substance abuse issues.
At
the detention hearing, all four children were ordered detained from mother and
father. Gabriel was placed with his
biological father; Robert, Jazmine, and Emily were placed with their paternal
grandparents. Mother and father were allowed
monitored visitation, at least once a week with Robert and Jazmine and twice a
week with Emily.
Last
Minute Information for the Court (September 15, 2010)
DCFS
reported that mother had entered a residential drug treatment program, but then
left it because she had to take care of her maternal great-grandmother.
September
15, 2010, Hearing
After
extensive amendments, the section 300 petition was sustained. The matter was continued for a contested
disposition hearing.
Jurisdiction/Disposition
Report
In
its jurisdiction/disposition report, DCFS reported that the social worker had
spoken to Gabriel. He advised her that
he had first seen mother and father hitting each other when he was in third
grade. He saw father beat up mother when
she was pregnant with Jazmine. Mother
would tell him to help her, but he stated that there was nothing he could do
about the fighting except take the other children to his bedroom.
Regarding
mother’s drug use, Gabriel stated that mother took Paxil because she was bipolar
and had “‘ADHD.’†When asked who took
care of the children, he said that mother did, but he helped out. He reported that mother would tell Robert
that he was just like father, which made Robert cry.
Robert
was interviewed again. When asked what
he liked about living with mother, he replied, “‘Nothing much
. . . . My mom and dad always were fighting and I
didn’t like it. . . . They would use their fists and
objects.’†Robert said that mother and
father left big marks on each other’s faces and bodies. He did not want to see mother and father
because “‘They have to try to fix this.’â€
Jazmine
told the social worker that when mother and father fought, it made her
cry. She wanted to stay with her
paternal grandparents all the time.
Mary
described an incident when mother went to her home and was high. She had asked the paternal grandparents for
help. It was obvious that mother was
under the influence because she was slurring her words, could not keep her head
up, and was talking to herself like she was someone else. Mary confirmed that mother and father
inflicted bruises and marks on each other.
Mother
admitted that she began using amphetamine “‘[a] couple of years ago, once or
twice when partying, not all the time. I
snorted [methamphetamines] and [father] would smoke it.’†Father reported more extensive
methamphetamine use by both of them than mother reported.
DCFS
recommended that the children be declared dependents of the juvenile court and
that mother and father be given reunification services.
Interim
Review Report and October 18, 2010, Hearing
DCFS
reported that mother had missed a drug test on September 7, 2010, and had
tested positive for methamphetamine on September 24, 2010.
DCFS
recommended that the juvenile court terminate jurisdiction over Gabriel and
order custody to his father, with monitored visits for mother.
On
October 18, 2010, the juvenile court declared the children dependents of the
court and removed them from mother and father’s custody. It further ordered monitored visits for
mother and father as well as reunification services. Jurisdiction was terminated as to Gabriel,
and Gabriel’s father was granted sole legal and physical custody of his son.
Status
Review Report and Six-month Review Hearing
On
April 11, 2011, DCFS reported that Robert, Jazmine, and Emily remained with
their paternal grandparents and continued to do well in their care.
Mother
was not in compliance with her case plan.
She had been taking care of her critically ill grandmother, but was now
residing with her maternal aunt. The
aunt reported that mother had come home drunk on or around April 5, 2011. Mother had tested positive for
methamphetamines on January 12, 2011, and did not show up for the rest of her
drug tests.
Mother’s
monitored visits with the children were sporadic. She had missed 12 visits since December 2010.
would whisper things to the children. On
one occasions, she called Robert a “‘delinquent.’†There were times when Robert and Jazmine did
not want to visit mother.
In
conjunction with its report, DCFS provided the juvenile court with a mental
health evaluation of mother dated June 23, 2010. The evaluator noted that mother exhibited
depressive symptoms and used substance abuse as her coping mechanism. She believed that mother needed mental health
treatment.
Robert
was prescribed a low fat diet and glasses.
Both he and Jazmine were receiving mental health services, but there
were no other reported problems regarding any of the children. The children reported that they loved being
with their paternal grandparents.
DCFS
recommended further reunification services for mother and father.
During
the six-month review hearing, county counsel informed mother and father that
DCFS was now recommending that the juvenile court terminate reunification
services. The juvenile court noted that
there was no legal basis to extend services.
The matter was set for a contested hearing.
Interim
Review Report
In
the interim, DCFS reported that mother had enrolled in Prototypes, a
residential drug treatment program, and was actively participating in
services. DCFS also reported that the
children continued to do well in the care of their paternal grandparents. They stated that they wanted to live with
their paternal grandparents and did not want to live with either mother or
father. Robert and Jazmine did not want
to visit mother at that time.
The
paternal grandparents were interested in adopting the children. However, Mary advised DCFS that the paternal
grandfather had been arrested for driving under the influence and was awaiting
a hearing on the charge. She reported
that she would have the paternal grandfather move out and adopt as a single
parent if necessary.
DCFS
subsequently reported that mother had left the Prototypes program because she
refused to follow the program’s rules.
Contested
Review Hearing (June 6, 2011)
At
the hearing, mother testified that she left Prototypes because she was not
getting visits with her children as it was too far for Mary to transport them
for visits. Mother planned on enrolling
in another program in El Monte. She also
indicated that she was “back and forth with places to live right now.†She was attending a 12-step program and was
on the second step, but she did not have a sponsor. She also was participating in a 10-week
parenting class, but she could finish sooner.
The
juvenile court terminated reunification services for mother and father and set
the matter for a section 366.26 hearing.
Section
366.26 Report
On
October 3, 2011, DCFS reported that Robert and Jazmine were overweight, but
they did not exhibit any signs of developmental delays; they both continued to
attend counseling. The three children
were doing well in the paternal grandparents’ home.
Mother
had been scheduled for twice weekly visits with the children, but she routinely
cancelled because of transportation problems or other obligations. She was able to make up some of the missed
visits at Robert’s Saturday baseball games.
The children hesitated to visit mother and Mary had to convince them to
go.
The
paternal grandfather had moved out of the house and the children continued to
be cared for by Mary. An adoptive home
study remained pending, but DCFS did not believe that there would be any
impediment to Mary adopting the children.
Second Section 366.26 Report
On February 6, 2012, DCFS reported
that Robert and Jazmine were performing at, or above, grade level, although the
school reported that Robert would benefit from after-school tutoring. Mary consistently ensured that the children
received appropriate care.
DCFS
further indicated that mother had a history of consistent visits when a hearing
was approaching, but, as of June 2011, she routinely cancelled visits. Robert and Jazmine informed Mary that they did
not want to visit mother; Mary had to convince them to see her. Mary stated that Robert and Jazmine did not
enjoy the visits with mother and were constantly asking what time the visit was
going to end. On the other hand, the
children enjoyed their visits with father and were always asking when the next
visit would occur.
DCFS
reported that the adoptive home study had been submitted to the supervising
adoption worker for review. Mary was
willing and capable of providing the children with a stable, caring, and
permanent home, and was strongly committed to adopting the children. She was willing to continue mother’s visits
after the adoption was finalized, but she expressed doubt that mother would
maintain consistent with visits.
The
children advised DCFS that they felt safe with Mary and did not want to live
anywhere else.
DCFS
subsequently informed the juvenile court that the adoptive home study had been
approved.
Last
Minute Information for the Court
On
May 21, 2012, DCFS advised the juvenile court that father had stolen $800 from
Mary and that she was pursuing criminal charges against him. Mother informed the social worker that she
had been attending visits with the children, had completed a substance abuse
recovery program, and had completed her court-ordered case plan. She intended to file a section 388 petition.
Contested Section 366.26 Hearing
At the March 21, 2012, hearing, the
juvenile court read and considered the entire court file and received into
evidence various written reports from DCFS.
Then, mother submitted her prepared statement for the court.
Mother
advised the juvenile court that she was starting to realize her self-worth
through her new program at New Directions treatment program. She had spent an hour every Monday and Thursday
with Emily. She claimed that Robert told
her that he wanted her to attend his sporting events, but her requests for the
schedule were ignored. She did not
understand why the children now indicated that they did not want to visit her,
but she believed that they were torn and confused. She asked the children to forgive her. She claimed to have accepted full
responsibility for her poor choices in the past, and said that the choices she
had made were no longer issues in their lives.
The letter was accepted into evidence, in part.
Mother
then submitted proof that she had completed a three-month outpatient drug
treatment program and four parenting classes.
Robert,
who was now 10 years old, testified next.
He understood that if Mary adopted him, she would legally take care of
him and make decisions for him. Mother’s
attorney asked: “Did they tell you that
your mom who is sitting next to me would no longer be your mom legally?†Robert replied affirmatively and said that it
would be “okay†if mother was no longer his legal mother.
Robert
then said that he had not wanted to visit mother lately because he had “stuffâ€
to do after school, such as sports and homework; that was the only reason he
did not want to see her. He said that if
the visits were scheduled for another time, he would like to go—but only once a
week. He wanted to see mother just to
say “‘hi.’†But, if the decision were up
to Mary whether he saw mother, that would be alright with him.
Robert
wanted mother to attend his sporting events.
Mother blurted out, “Thank you, baby.â€
The juvenile court noted that mother needed to get control of her
emotions. If she did not do so, Robert
would have to testify in chambers or mother would have to go outside.
Testimony
resumed, and Robert was asked to describe his relationship with mother. He stated that he did not really see mother a
lot, but that he cared about her. He
also said that he thought about mother.
When
asked if Mary ever talked to him about visiting mother, Robert testified that
she told him that he did not have to visit mother if he did not want to do so.
Mother
testified next. She said that in
December, she was having weekly visits with Robert and Jazmine, and that they
were mending their relationship and doing homework together. She further stated that after Christmas,
thought it was because of all the extra-curricular activities, such as Homework
Club.
Mother
said that she had tried to reschedule missed visits, but Mary was always too
busy. She described the last visit as
going very well. They did homework
together. She brought them movies and
Christmas presents. She expressed her
love to them, but believed that they were a little hesitant to return that love
because they were so used to the paternal side of the family. Mother claimed that Mary ignored her when she
tried to get the schedule for Robert’s baseball games.
Mother
believed that it would be detrimental for the children to no longer see her
because they would be “den[ied] . . . their mother’s love.â€
The
juvenile court then heard oral argument.
Mother’s attorney argued, in part, that Mary undermined the children’s
relationship with mother. Thus, she
requested legal guardianship in lieu of termination of parental rights.
After
entertaining oral argument, the juvenile court found that although mother had
maintained regular contact with the children, at least up until December 2011,
the relationship between mother and the children did not outweigh the benefits
of adoption. Parental rights were
terminated.
Mother’s
timely appeal ensued.
I. Standard
of review
“For years
California courts have diverged in their view about the applicable standard of
review for an appellate challenge to a juvenile court ruling rejecting a claim
that an adoption exception applies. Most
courts have applied the substantial evidence standard of review to this
determination [citations], although at least one court has concluded that it is
properly reviewed for an abuse of discretion [citation]. Recently, the Sixth Appellate District has
cogently expressed the view that the review of an adoption exception
incorporates both the substantial
evidence and the abuse of discretion standards of review. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314–1315 (Bailey J.).) The
juvenile court’s decision whether an adoption exception applies involves two
component determinations: a factual and
a discretionary one. The first
determination—most commonly whether a beneficial parental or sibling
relationship exists . . . is, because of its factual nature,
properly reviewed for substantial evidence.
[Citation.] The second
determination in the exception analysis is whether the existence of that
relationship or other specified statutory circumstance constitutes ‘a
compelling reason for determining that termination would be detrimental to the
child.’ [Citations.] This ‘“quintessentially†discretionary
decision, which calls for the juvenile court to determine the
impact that its severance can be expected to have on the child and to weigh
that against the benefit to the child of adoption,’ is appropriately reviewed
under the deferential abuse of discretion standard. [Citation.]â€
(In re K.P. (2012) 203
Cal.App.4th 614, 621–622.) Like the
courts in Bailey J. and
II. Relevant
law
At the
section 366.26 hearing, the juvenile court’s task is to select and implement a
permanent plan for the dependent child.
When there is no probability of reunification with a parent, adoption is
the preferred permanent plan. (§ 366.26,
subd. (b)(1); In re Marina S. (2005)
132 Cal.App.4th 158, 164.) If the
juvenile court finds by clear and convincing evidence that a child is likely to
be adopted, the juvenile court must terminate parental rights, unless one of
several statutory exceptions applies. (§
366.26, subd. (c)(1); In re Marina S.,
supra, at p. 164.)
To satisfy the parent-child
exception to termination of parental rights in section 366.26, subdivision
(c)(1)(B)(i), a parent must prove he or she 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); see In re Derek W.
(1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the
statutory exception appliesâ€].) The
“benefit†prong of the exception requires the parent to prove his or her
relationship with the child “promotes the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.†(
567, 575 [“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 conferâ€].) No matter how loving and frequent the
contact, and notwithstanding the existence of an “emotional bond†with the
child, “the parents must show that they occupy ‘a parental role’ in the child’s
life.†(In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108;
1411, 1418–1419.) The relationship that
gives rise to this exception to the statutory preference for adoption
“characteristically aris[es] from day-to-day interaction, companionship and
shared experiences. Day-to-day contact
is not necessarily required, although it is typical in a parent-child
relationship.†(In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
Moreover, “[b]ecause 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.†(
1339, 1350.)
A court may consider the
relationship between a parent and a child in the context of a dependency
setting, e.g., amount of visitation permitted, whether the parent was ever the
child’s primary caretaker. (
1530, 1537–1538.) But the overriding
concern is whether the benefit gained by continuing the relationship between
the biological parent and the child outweighs the benefit conferred by
adoption. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155–1156;
III. Analysis
The juvenile court did not err in refusing to apply the
parental-benefit exception and in terminating mother’s parental rights. Preliminarily, we note that, mother’s claim
notwithstanding, the juvenile court did not conclude that mother had visited
her children consistently throughout these proceedings. Rather, it found that mother only had visited
consistently until December 2011.
To the
extent mother contends that her visitation was not consistent because Mary
interfered with her visitation rights, we are not convinced. There is ample evidence that mother, not
Mary, cancelled her visits.
Comparing
the instant dependency case to a private adoption, mother claims that Mary was
an agent of DCFS, which has a special responsibility as parens patriae to the children not to interfere with visitation. Thus, according to mother, Mary was obligated
not to interfere with her visitation. We
reject this complicated and unfounded theory.
evidence that mother chose not to visit her children. Moreover, if mother believed that she was
wrongfully denied her right to visit, she had an obligation to bring it to the
juvenile court’s attention so that it could have been corrected; she should not
have waited until the time of the contested section 366.26 hearing to complain
about this issue. (In re Christina L. (1992) 3 Cal.App.4th 404, 416.)
Next, mother seems to argue that DCFS
is equitably estopped from arguing that the beneficial-parent exception does
not apply because DCFS and/or Mary prevented mother from visiting with her
children. As mother notes, estoppel
applies only if the party to be stopped has engaged in blameworthy or
inequitable conduct. (
(2008) 165 Cal.App.4th 455, 488.) Mother
does not identify any blameworthy conduct by Mary. The scheduled activities that may have
interfered with mother’s visits met the children’s specific needs, including
the Homework Club and sports activities.
Finally, mother
claims that Robert’s alleged desire to maintain a relationship with her
prevented the juvenile court from terminating parental rights to all three
children. Mother overstates Robert’s
testimony. While Robert testified that
he wanted continued contact with mother, he only wanted to see her once a week
and just to say hi. But, he also stated
that he did not have a problem with Mary deciding whether or not the visits
would occur. And, Mary represented that
she was willing to continue visits between mother and the children after
parental rights were terminated. Last,
perhaps most importantly, Robert testified that he would be okay with mother no
longer being his legal mother. Taken
together, this evidence does not provide any basis to reverse the juvenile
court’s order.
DISPOSITION
The juvenile court’s order is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________, J.
“Jasmine.†We use the spelling on the
section 300 petition.
Institutions Code unless otherwise indicated.
