In re Joseph R.
Filed 2/6/13 In re Joseph R. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re JOSEPH R., a Person
Coming Under the Juvenile Court Law.
B241952
(Los Angeles
County
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MARIA P.,
Defendant and Appellant.
Super Ct.
No. CK00324)
APPEAL from a judgment of
the Superior Court of
County. Zeke Zeidler,
Judge. Affirmed.
Andrea R. St. Julian, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Maria P.’s parental rights with respect to her son
Joseph R. were terminated pursuant to section 366.26 of the Welfare and
Institutions Code.
Maria P. claims on appeal that her son was not
adoptable and that the juvenile court erred in failing to apply the
parent-child relationship exception to the statutory preference for
adoption. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Joseph R., then five years old, came to the attention
of the Department of Children and Family
Services (DCFS) in March 2010 based on a referral alleging that Maria R.
was using drugs in front of him and hitting her children with a belt. Maria R. was alleged to have schizophrenia
and bi-polar disorder, and to have been recently hospitalized involuntarily
under section 5150. The referring party
also alleged domestic violence by a male friend; alcohol problems in the
family; and that Joseph R. was afraid of his mother and did not want to be at
home.
DCFS investigated the family. Joseph R. was Maria P.’s tenth child and the
only one in her custody. Maria P.
reported that three of her children were adopted out to foster families and the
others were in foster care. She
attributed losing custody to neglect and her drug use. Maria P. denied the allegations against her. Maria P.’s initial drug test results were
negative.
Joseph R. was found to have marks on his
consistent with the allegations made in the referral. Joseph R. first said that his mother hit him
but then reported that neither of his parents was responsible for the
marks. Maria P.’s sister told DCFS that
she had seen Maria P. hit Joseph R. on the back with a belt and on the head with
her hand.
An immediate response referral was made in late March
2010. The caller reported observing
Maria P. hit Joseph R. all over his body, put a collar on him like a dog, and
attempt to pull him. The abuse was
alleged to have taken place the day before when Maria P. was angered that Joseph
R. was playing roughly with another child.
Maria P. was also reported to have scared Joseph R. by telling him that
if he confirmed that he had been physically abused he would be taken away from
her. It was also reported by the caller
that Joseph R.’s father, Joseph R., Sr., was living in the home. Joseph R., Sr. had just been released from
incarceration for abuse of a minor.
Two unrelated persons who were among the families
sharing the home with Joseph R.’s family confirmed that Maria P. hit Joseph
R. One said that Maria P. “cannot
control her impulses and hits the child really hard for no apparent reasonâ€;
that she had put a collar and leash around Joseph R.’s neck and pulled him with
it; and that she had said to Joseph R., “I hate you, you bastard.†The other described Maria P. as hitting
Joseph R. impulsively and hard.
Maria P. denied hitting Joseph R., putting a collar on
him, choking him, or yelling at him. She
admitted that she had an anger management problem but said she had just enrolled
in an anger management class. She denied
that Joseph R., Sr. lived at the home in violation of DCFS instructions; but
admitted that he did spend the night there sometimes. The social worker observed that Maria P.
“does not see her discipline is inappropriate because it is lighter discipline
than she used with previous children in which she has [committed] willful
cruelty to a child.â€
DCFS detained Joseph R. He said goodbye to his mother without emotion
and without looking back despite her audible screams. He reported domestic violence between his
parents and that they yelled very loudly at each other. Joseph R. said that it made him feel really
sad when they fought and that no one paid attention to him, so he just sat on
the bed until they stopped.
Joseph R. was reported to be physically healthy and
meeting developmental milestones. He
was, however, aggressive toward other children at school and was easily
distracted. He did not exhibit the
typical range of emotions upon detention that the social worker expected: “Joseph had a blank affect and showed no
emotion for the situation. Joseph did
not ask about his Mother or being returned to his Mother. Joseph only asked about what the foster
family has at his home for him. It
appeared Joseph was not very attached to his Mother and seemed to lack empathy
and only wanted to know what was in it for him.†In a later interview, Joseph R. told DCFS, “I
love my mom and I want to live with her.â€
The juvenile court determined that Joseph R. was
subject to the jurisdiction of the juvenile court under section 300,
subdivisions (a) and (b). The court
found it was not in Joseph R.’s best interest for his parents to be offered
reunification services.
Joseph R. was placed in foster care from March through
October 2010, and was then placed with a second cousin in October 2010. The cousin was informed that Joseph R.
required medication and counseling for attention deficit hyperactivity
disorder. She failed to take him to
counseling regularly. According to the cousin,
Joseph R. threw himself to the floor, yelled, and hit his head on the
wall. He tore his toys apart. He jumped on the bed and the dresser. Joseph threw tantrums in public settings and
stole from stores. He ate paper,
erasers, crayons, and pieces of his clothing.
Joseph R. had not exhibited these behaviors in his previous
placement. The cousin was overwhelmed
and feared that he would hurt himself.
She requested that he be placed elsewhere because of his behavioral
problems, because she was also caring for a disabled adult family member, and
because her work began at 3:00 p.m., leaving her unable to provide the
attention and supervision that Joseph R. needed.
Joseph R. was returned to his previous foster care
placement in early 2011 and reported loving being in his foster home because he
knew the other children there. He was
receiving individual counseling and wraparound services, and had been referred
for an individualized education plan.
The behaviors that Joseph R. had exhibited while in his cousin’s custody
began to diminish.
Maria P. visited Joseph R. weekly in monitored
visits. She was often late in
arriving. Joseph R.’s cousin and his
foster parent both reported that Joseph R. did not have a close relationship
with his parents. He usually asked his
parents what they had brought for him, then went off to play while his parents
sat at a table and talked. The foster
parent described “little engagement†between Joseph R. and his parents. Joseph R.’s social worker observed that
Maria P. was “not appropriate†and “rather childish†in her interactions with
Joseph R. DCFS believed that “bonding
has not occurred between the child and his mother to the extent that the
department would be convinced that there is a mother-child relationship.†DCFS found there to be no evidence that
Joseph R. would be greatly affected by the loss of contact with either parent.
The hearing pursuant to section 366.26 was set for
April 20, 2011. Joseph R. still
experienced attention deficit disorder and pica, and was taking medication for
the attention deficit hyperactivity disorder.
The behaviors that had made his placement with his cousin problematic
were diminishing. The foster mother was
interested in legal guardianship of Joseph R. but did not want to adopt him
because he already had a relationship with his parents. The court ordered a search for prospective
adoptive parents for Joseph R.
As of September 2011, Joseph R. was reported to have
made significant progress with using his coping skills when he felt frustrated
or upset, and he had not had any physical altercations at school in the prior
five months. Joseph R. remained with his
foster caregiver until September 2011, when she decided against becoming Joseph
R.’s guardian. She could no longer
handle his behavior and lacked time to meet his needs. Joseph R. was removed from his next placement
after he hit the caregiver’s son on the head with a skateboard when the boy was
not looking.
As of February 2012, Joseph R. had been in a new
placement for about six weeks. DCFS
described the foster parent as being very patient and loving with Joseph R. and
reported that he was responding very well.
Joseph R. had taken part in an adoption recruiting event, and six
families expressed an interest in learning more about him. A meeting had recently been conducted during
which DCFS matched Joseph R. with a family whose home study had already been
approved. DCFS was awaiting a formal
match notice in order to set a pre-placement conference and presentation to the
family.
DCFS reported to the court in February 2012 that Maria
P. had continued to visit Joseph R. over the prior several months, but that the
visits were inconsistent. Sometimes
three weeks would pass without a visit.
Between September and November 2011 Maria P. had visited two or
three times, but she did call. The
caregiver at that time reported that Joseph R. was affected negatively by
contact with his mother. Maria P. had
visited Joseph R. weekly from mid-January to early February. On February 9 she left the visit one hour
early. The following week she did not
appear and did not call to cancel the visit.
The next caregiver also found that Joseph R.’s
behavior escalated when he saw his mother.
She reported that Joseph R. asked his parents for things and became
upset when he did not receive them. DCFS
reported, “Mother has also told him that he will be going home with her and
this confuses the child. The foster
caregiver . . . stated that the child Joseph was given [an
electronic] game months ago by the parents before she had the child in her
care. The child had broken the game and
mother asked for it back to get it fixed.
The mother has not returned the game to him. The foster caregiver stated
that . . . the first thing the child asks his parents,
especially his mother[,] is for his game.
The child is mostly focused on getting his game back from his
parents. Mother tells the child not to
ask anymore and then she will return the game back to him. He asks them after the visit, and mother
tells him she will not give it back to him because he asked about it
again. Per the foster caregiver, it does
not appear to matter to the child whether his parents arrive for the visits or
not. He does not get upset about
it.†DCFS described Joseph R.’s relationship
with his parents as distant.
Joseph R. received weekly individual counseling and
had begun therapeutic behavioral services.
He was reading at grade level but was behind in writing and some
mathematics. He interacted appropriately
with his peers but was demonstrating some behavioral problems. Joseph R. was described as making progress in
taking responsibility for his actions and following through with
consequences.
In February 2012 the court postponed the section
366.26 hearing until June 2012 to permit progress on the selection of an
adoptive home for Joseph R. In March
2012 the family that had been identified from the pool of interested families
decided to move forward toward adoption.
Four pre-placement visits occurred in April 2012, and weekend overnight
visits took place over four weekends in May.
Visits were going well and Joseph R. was looking forward to moving into
the family’s home. The prospective
adoptive parents had met with Joseph R.’s wraparound service providers and had
independently researched resources in the area to assist with the
transition. Joseph R. was scheduled to
move in with the prospective adoptive parents in June 2012.
On June 11, 2012, the court took evidence and heard
argument on the termination of parental rights.
Joseph R. had moved into the adoptive home the prior week. Maria P. testified that she had not visited
Joseph R. in the past two months, and she had seen him perhaps six or seven
times in the four months before that.
Their visits lasted one hour. They
watched movies and read together; she would try to have him write, or color, or
draw. She also downloaded games on her
phone that he could play. Maria P.
testified that prior to six months ago, that she had visited Joseph R. once or
twice per week for a year, for approximately two hours per visit. At that time they met in a park and took
small hikes and collected pinecones.
Maria P. testified that she was not speaking with
Joseph R. because the foster parent had been saying he did not want to speak with
her. She had last telephoned two or
three weeks earlier but had stopped trying because she was upset to be told
that Joseph R. did not want to speak with her.
The court asked Maria P. what she had done in the past
18 months to assume a parental role in her son’s life. She described telling Joseph R. when he did
something wrong, speaking with him about the incident with the skateboard, and
giving him consequences for misbehavior.
Maria P. described herself as the only caregiver who could deal with Joseph
R. She said that when he lived with her
she disciplined him with time outs and that she knew that she would have to
make her voice less loud if he lived with her again.
When asked her position on termination of parental
rights and freeing Joseph R. for adoption, she said she did not want that to
happen because “I think I deserve a second chance because I’ve already lost two
of my kids, and the only reason I allowed that adoption go to through was [was
be]cause I was pregnant with Joseph.â€
She believed termination of parental rights would be detrimental to
Joseph. R. because “he was mama’s boy, and I don’t know. I think right now with him not seeing me and
stuff or hearing from me I think he’s really tripping.â€
The court concluded that
Joseph R. was adoptable and that termination of parental rights would
not be detrimental to him under the statutorily-specified exceptions, then
terminated parental rights. Maria P.
appeals.
DISCUSSION
“At
a hearing under section 366.26, the court must select and implement a permanent
plan for a dependent child. When there
is no probability of reunification with a parent, adoption is the preferred
permanent plan. [Citation.] To implement adoption as the permanent plan,
the juvenile court must find, by clear and convincing evidence, that the minor
is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) Then, in the absence of evidence that
termination of parental rights would be detrimental to the child under
statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the
juvenile court ‘shall terminate parental rights.’ (§ 366.26, subd. (c)(1).)†(In re
K.P. (2012) 203 Cal.App.4th 614, 620.)
Here, the juvenile court found that Joseph R. was adoptable, and,
finding no reason that the termination of parental rights would be detrimental
to him, terminated parental rights. Maria P. challenges the determination that
Joseph R. was adoptable and asserts that the parent-child relationship
exception to termination of parental rights was applicable here. Neither contention is meritorious.
I. Adoptability
A juvenile
court may terminate parental rights under section 366.26 only if it determines
by clear and convincing evidence the
child will likely be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “The issue of adoptability posed in a
section 366.26 hearing focuses on the minor, e.g., whether the minor’s
age, physical condition, and emotional state make it difficult to find a person
willing to adopt the minor.
[Citations.]†(In re Sarah M.
(1994) 22 Cal.App.4th 1642, 1649.)
“‘“‘Clear
and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no
substantial doubt. It must be
sufficiently strong to command the unhesitating assent of every reasonable
mind.â€â€™ [Citation.]†(Jerome D.,
supra, 84 Cal.App.4th at p.
1205.) Review of the juvenile court’s
finding of adoptability is limited to determining whether it is supported by
substantial evidence. (
Cal.App.4th 1051, 1061.)
Maria P. correctly observes that the record
demonstrates Joseph R.’s behavioral problems and challenges over the course of
the dependency proceedings. He acted
aggressively toward people and property, was impulsive, and threw
tantrums. He had been diagnosed with
pica, a condition in which a person eats non-nutritive items; with attention
deficit hyperactivity disorder; and with impulsivity disorder. Maria P. labels these “extreme medical,
emotional and behavioral problems†and claims that he was therefore
unadoptable. The record, however, does
not mandate such a conclusion.
Although there was evidence that Joseph R. had
behavioral problems and required psychological services, there was also
sufficient evidence for the juvenile court to find by clear and convincing
evidence that he was adoptable. Joseph R. was seven years
old and in good physical health, with no
attention deficit hyperactivity disorder.
He was also receiving individual counseling and therapeutic behavioral
services to address his emotional and behavioral issues. Joseph R. was making progress in addressing
his behavioral and social problems. He
had set a personal mission: “I want to
work on my temper tantrums and make friends at school.†Joseph R. was described as honest, receptive
to interventions, and wanting to do better and to avoid getting into
trouble. He was struggling to verbalize
his feelings and had difficulty controlling his impulsive behaviors, but he was
“able to take ownership for his misbehavior.â€
Joseph R. was “able to recognize negative behaviors and channel his
energy in[to] positive outcomes.†He was
helpful around the house and kept his room clean. He respected house rules and demonstrated good
self-control when reminded of the rules.
Friendly, polite, and talkative, Joseph R. enjoyed socializing with his
peers. He wanted to make friends and was
working on positive social interactions.
In a Family Safety and Crisis Plan from September
2011, it was noted that Joseph R. had gone five months without any
physical altercations at school. He had
“made significant progress with utilizing his coping skills when he feels
frustrated or upset.†He was described
as “able to recognize when he becomes angry
and . . . willing to take responsibility for his
anger.†As of September 2011, he had
succeeded in decreasing the severity of his temper tantrums and had not
destroyed any property in the past six months, although he did still cry when
he did not get his way. Although this
report may have been made prior to Joseph R. hitting a child with a skateboard,
it nonetheless shows his progress in addressing his inappropriate
behaviors.
Joseph R.’s academic performance had also been
improving, albeit slowly. He had begun
completing his homework and class work on a consistent basis. He had become more organized with his school
work. An individualized educational plan
meeting had been requested to determine whether Joseph R. was eligible for
special education or intervention services.
Joseph R., moreover, had drawn the attention of six
families when he attended an adoptive parents’ recruiting event. The prospective adoptive parents with whom he
was matched had spent several months getting to know him, with a month of
visits followed by a month of overnight stays.
Pre-placement visits had gone well and the placement process proceeded
apace, indicating no concerns as to Joseph R.’s ability to connect and to form
attachments. His ability to form
attachments had never been questioned—the record includes multiple references
to Joseph R. adapting well to new placements and forming connections with his
caregivers and foster families.
This evidence is sufficient for
the juvenile court to have concluded, as it did, that based on his age,
physical condition, and emotional state, as well as the existence of
prospective adoptive parents, it was likely that Joseph R. would be
adopted. (§ 366.26, subd. (c)(1); In
re Sarah M., supra, 22 Cal.App.4th at p. 1649.) “Usually, the fact that a prospective
adoptive parent has expressed interest in adopting the minor is evidence that
the minor’s age, physical condition, mental state, and other matters relating
to the child are not likely to dissuade individuals from adopting the
minor. In other words, a prospective
adoptive parent’s willingness to adopt generally indicates the minor is likely
to be adopted within a reasonable time either by the prospective adoptive
parent or by some other family.â€
(In re Sarah M., supra, at pp. 1649-1650.)
Maria P. contends that
Joseph R.’s age and his attachment to her would make it difficult for him to
bond with adoptive parents. She does not
cite to any evidence in the record to support this speculation, and indeed, the
record tends not to support the contention that he and his mother were bonded
to any degree that this attachment would impede a connection with adoptive
parents. Joseph R. was noted to be
protective of his mother, to have initially said he wanted to live with her,
and to say he enjoyed visits with her, but caregivers and social workers
characterized the relationship as “distant†and involving “little engagementâ€
between Joseph R. and his mother. Joseph
R. was “not very attached†to his mother, did not seem to care whether visits
occurred, and was affected negatively by contact with his mother.
II. Termination
of Parental Rights
Maria P. contends that the parent-child
relationship exception to termination of parental rights was applicable
here. We review the determination
whether a beneficial parental relationship exists for substantial evidence and
the conclusion as to whether the existence of that relationship constitutes “a
compelling reason for determining that termination would be detrimental to the
child†(§ 366.26, subd. (c)(1)(B))
under the abuse of discretion standard.
(In re K.P.,
“Section 366.26 provides an exception to the general
legislative preference for adoption when ‘[t]he court finds a compelling reason
for determining that termination would be detrimental to the child’
(§ 366.26, subd. (c)(1)(B)) because ‘[t]he parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.’
(§ 366.26, subd. (c)(1)(B)(i).)
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.’
[Citations.] 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 roleâ€
in the child’s life.’ [Citations.] 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.’ [Citation.]
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.’ [Citation.]â€
(In re K.P.,
Here, the juvenile court found that neither prong of
the parental relationship exception was satisfied: Maria P. had “not had the level of visitation
and contact that at this point has created an ongoing parental role and
relationship or to any extent that it has it clearly doesn’t outweigh the
benefits of permanence in adoption[,] especially in this case where this is the
mother’s tenth child coming into the system.â€
The court’s finding that Maria P. had failed to
maintain regular visitation and contact with Joseph L. is supported by
substantial evidence. Maria P. admitted
she had not seen her son in two months and that in the four months before that
she had seen him a total of six or seven times.
She had stopped trying to contact Joseph R. by telephone because she
found his repeated refusals to speak with her too upsetting. Although she had visited Joseph R. since he
entered the dependency system, her visitation had been inconsistent, with Maria
P. sometimes arriving late, canceling visits, or failing to show.
The juvenile court also concluded that even if Maria
P.’s visitation was sufficient to demonstrate regular contact, the parent-child
relationship was qualitatively insufficient to constitute a compelling reason
for determining that termination of Maria P.’s parental rights would be
detrimental to Joseph R. We review this
determination for an abuse of discretion and find none. Maria P. described a few instances in which
she had advised Joseph R., asked him to discuss emotions with her, or brought
behaviors he needed to change to his attention, and she testified that they
communicated well, but this testimony was the sole evidence to suggest that she
had acted in a parental role over the years he had been a dependent of the
court. Maria P. may have
attempted to influence Joseph R.’s behavior for the better while she was
visiting, and Joseph R. may have enjoyed his visits with her, but there was
also evidence that Maria
P. and Joseph R. had a distant relationship.
Joseph R. did not seem to care if she failed to appear for visits and
was primarily concerned with what she had brought for him when they did visit
together. During visits, Maria P. tended
to talk with Joseph R., Sr. or to talk on her cell phone rather than engaging
with Joseph R. DCFS did not observe
Maria P. and Joseph R. to be bonded and saw no evidence that he would be
greatly affected by the loss of contact with her. Joseph R.’s attitude and behavior worsened
after contact with his mother.
There was no evidence that
termination of the parent-child relationship would be detrimental to Joseph R.
or that the relationship conferred benefits to him more significant than the
permanency and stability offered by adoption.
(In re Autumn H. (1994) 27
Cal.App.4th 567, 575 [exception applies only if the severance of the
parent-child relationship would “deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmedâ€].) We cannot say that the juvenile court abused
its discretion when it concluded that the benefits to Joseph R. that would
arise from adoption outweighed any detrimental impact that might come from
severing his relationship with his mother.
DISPOSITION
The judgment is affirmed.
ZELON,
J.
We concur:
PERLUSS, P. J. WOODS,
J.
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further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
