In re John E.
Filed 2/22/13 In re John E. CA1/5
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
Juvenile Court Law.
and Respondent,
Defendant and
Appellant.
A135498
(
Super.
S.E. (mother) appeals from an order
terminating her parental rights to her son John under Welfare and Institutions
Code section 366.26.
name="_ftnref1" title="">[1] She argues that her parental rights should
not have been terminated because the “beneficial relationship†exception of section
366.26, subdivision (c)(1)(B)(i) applies.
We affirm.
BACKGROUND
John
was born prematurely in January 2009, while mother (then 21 years old) was
living in Mexico. The maternal grandmother provided much of
John’s care. In November 2009, mother brought
John to the United States for surgery
to correct a heart condition, where he was diagnosed with failure to thrive,
anemia and Kabuki Syndrome, which in his case caused a range of developmental delays
and mild mental retardation. Following his heart surgery, John had to be
fed through a gastronasal tube (g-tube) to avoid aspirating his food.
Medical
staff at the hospital were concerned about mother’s ability to parent a special
needs child on her own given her apparent immaturity and her refusal to
participate in teaching sessions.
Notwithstanding, John was released to mother and the two of them moved
in with mother’s maternal aunt, who assisted in John’s care. John was readmitted a month later for
pneumonia, diarrhea and vomiting, amid concerns that mother had left him alone
for extended periods of time; mother’s explanation was that she had left John
with her uncle, who had left John alone.
In approximately February 2010, the maternal grandmother came from
Mexico to help care for John, but medical personnel were concerned about her
ability to feed him and maintain the g-tube.
During medical appointments, it was noted that John seemed to prefer his
grandmother and that she was acting as his primary caretaker, although she did
plan to return to Mexico.
Because
mother had missed several Regional Center appointments, John was not receiving
the physical and occupational therapy to which he was entitled. During a visit from a home health nurse on
March 18, 2010, mother was extremely agitated, pacing the floor with bloodshot
eyes. The grandmother and other family
members reported that she was unstable and suffered from mental health issues. Respondent Contra Costa County Children and
Family Services Bureau (Bureau) received a referral after mother left John with
the grandmother and moved in with her boyfriend due to ongoing family
conflicts.
A
doctor who had treated John sent the Bureau a letter saying that she had
serious concerns about mother’s ability to care for him, and noted that mother
had been angry, irrational and so inappropriate that medical staff were
concerned mother was incapable of giving informed consent for a surgical procedure
John required. At a team meeting at the
hospital on April 29, 2010, mother was argumentative and accusatory, and
threatened to take John away from the grandmother and return to
his grandmother, who, despite a history of difficulty with John’s g-tube, had
demonstrated that she was capable of feeding him. John was later moved to a licensed foster
home for medically fragile children because although he was being adequately
fed, his developmental activities in the grandmother’s care were very limited.
On
May 4, 2010, the Bureau filed a petition alleging that John was a dependent
child under section 300, subdivision (b).
At the jurisdictional hearing held August 11, 2010, mother (represented
by a guardian ad litem) submitted on an amended version of the petition. At the dispositional hearing held on
September 24, 2010, John was formally removed from mother’s custody and mother
was given a reunification plan that included components of visitation, therapy,
and a psychiatric assessment.
At
a December 2010 interim hearing to update the court on mother’s psychiatric
assessment, the social worker reported that mother had been diagnosed with
“Adjustment Disorder with Depressed Mood and V61.20 Parent-Child Relational
Problem.†She had been prescribed
medication for depression, but continued to exhibit extreme mood swings. Mother’s guardian ad litem was relieved by
the court.
At
the time of the six-month review hearing, John was doing well in the foster
home and was a happy child despite his disabilities. Mother was pregnant and had married her
boyfriend. Though mother was in therapy
and had been attending parenting and anger management classes, the social
worker was concerned about her ability to fully grasp the severity of John’s
medical condition. During a visit on his
birthday, for example, mother gave John ice cream, even though nonsolid foods
cause him to aspirate liquid into his lungs.
Visitation was generally going well, although when the maternal
grandmother participated, John slept for 14 hours after the visit and took
several days to return to his usual disposition. The court ordered that reunification services
continue and set a 12-month review hearing.
By
the time of the 12-month review hearing held in July 2011, mother had given
birth to a healthy daughter, Isabella. She was participating in John’s therapy
and had become comfortable with maintaining the g-tube. She was taking mood stabilizers and seemed to
have benefited from counseling. There
had been incidents of domestic violence with her husband, who had moved out of
the home. Mother explained, “He is a
good father. We only fight when we are
together but [we] are not together anymore.â€
Consistent with the Department’s recommendation, the court continued
reunification services for another six months.
On
October 31, 2011, while John was with his mother on an extended visit, mother
was stopped for a traffic violation while she had both children with her in the
car. Police discovered a gun in the
diaper bag and ammunition in her purse, which were illegal for mother to
possess due to her mental health issues.
Mother claimed she needed the gun for protection because someone was
after her and her new boyfriend.
An
18-month review hearing was held in January 2012. Although the Bureau had initially filed a
report recommending that John be returned to mother’s care, it had changed its
recommendation after mother’s arrest for firearm possession. Following the Bureau’s revised
recommendation, the court terminated reunification services and set John’s case
for a hearing under section 366.26. A
petition had also been filed to declare Isabella a dependent of the court, and
she was placed with John in a foster home.
The
Bureau’s report for the section 366.26 hearing concluded that John was
adoptable despite his special needs. He
was currently placed in a home in which his foster parents (who had been married
for 34 years and had five adult children and one adopted child) wanted to adopt
him. The report recommended the
termination of mother’s parental rights and the placement of John for adoption. It also described visits between mother, John
and Isabella since the time of the gun incident:
“Between
November 2011 and March 2012, the mother was offered twice monthly visits
supervised by a social casework assistant.
On November 16, 2011, the mother recorded the children on her cell
phone. John played with toys on his
own. On November 22, 2011, the mother
texted on her phone and let John play alone on a chair for a short while. John came up to the casework assistant
several times while the mother was interacting with Isabella. During the December 9, 2011 visit, the mother
texted frequently on her phone. She gave
John her keys to play with on his own.
When he became bored, he came to the casework assistant. The casework assistant directed the mother to
keep her eye on John because he was climbing up on his stroller. On December 23, 2011, the mother and Ms. K.
[apparently Isabella’s maternal grandmother], visited John and Isabella. The mother took pictures and videos of the
children after changing their diapers.
At one point John approached the casework assistant because the mother
and Ms. K. were paying more attention to Isabella than to him. John appeared tired and he sat on the
floor. He did not respond when mother
called to him. On January 13, 2012
and January 27, 2012, and February 10, 2012, and February 24, 2012 the
mother and maternal grandmother participated in the visits. The mother took pictures and videos of the
children with her phone. The maternal
grandmother played with John while the mother held Isabella. The mother was observed to be able to
interact with one child at a time, while the maternal grandmother would
interact with the other child.â€
The
report indicated that mother had attended some of John’s medical appointments
during this period, but that while she was very affectionate and playful with
John, she did not fully attend the conversations with the doctor and made
irrelevant remarks. As to mother’s
relationship with John, the report concluded: “John has been observed to have
an affectionate relationship with his mother, with whom he has had frequent
visitation [] during the past two years that he has been in foster care. While the relationship between John and his
mother is a positive one, it does not provide him with the predictability,
structure, and careful attention to his medical needs that are required to
adequately parent this medically fragile child.
This relationship does not outweigh the benefits of legal permanence for
John.â€
The
court held a contested hearing under section
366.26, at which the Bureau’s adoptions social worker and mother both
testified. Asked about mother’s
relationship to John, the social worker noted that while John would look to his
foster mother for comfort while exploring his environment, he did not do the
same with mother. He responded
positively to mother while they were interacting, but in the same way that he
did with other people who visited him regularly.
Mother
testified that she had consistently visited John to the extent allowed and attended
all of his medical appointments since the gun incident, but she did not know
anything about his feeding regimen. She
explained that she did not get involved in discussions between the foster
mother and the doctor because the foster mother was currently responsible for
John’s feeding issues. Mother indicated
that she had been on the wrong dosage of medication during the dependency
proceedings and that was the reason John was removed from her care. She was evasive about the gun incident and
refused to answer questions about it, except to say that she had been “jumpedâ€
by her husband’s friends and that her car had been burned and her house
burglarized.
At
the conclusion of the hearing, mother’s counsel acknowledged that John might be
receiving better care in his foster home than mother could provide, but asked
the court to order a plan of guardianship rather than adoption to preserve the
parent-child relationship. The court
declined to do so, terminated mother’s parental rights, and ordered a permanent
plan of adoption: “First, very clearly,
this is an adoptable child by – I would easily say by clear and convincing
evidence. . . . [¶] And so let me
turn to the possible exceptions. So
here, the evidence is that John is not particularly bonded to [mother] as his
mom. He does recognize her during
visits. Sometimes he becomes bored and
seeks out other[s’] attention. There’s
not sufficient proof of a close enough relationship that he’s especially bonded
to her as his mom as opposed to any other, I guess, type of play date or visit,
and I find that John would not suffer detriment from the termination of
parental rights at this stage.â€
DISCUSSION
Mother
argues that the judgment terminating her parental rights to John must be
reversed because the quality of her relationship with him would make it
detrimental to sever their relationship.
We reject the claim.
At
a hearing under section 366.26, the court may order one of three alternative
plans: adoption (necessitating the termination of parental rights),
guardianship, or long-term foster care.
(§ 366.26, subd. (b)(1)-(6).) If
the child is adoptable, there is a strong preference for adoption over the
other alternatives. (
297 (S.B.).) Once the court determines the child is
adoptable, a parent seeking a less restrictive plan has the burden of showing
that the termination of parental rights would be detrimental under one of the
exceptions listed in section 366.26, subdivision (c)(1)(B). (S.B.,
at p. 297; In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.).)
name="_ftnref2" title="">[2]
Section
366.26, subdivision (c)(1)(B)(i) provides for one such exception when “[t]he
parents have maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.†The “benefit†necessary to trigger this
exception has been judicially construed to mean, “the 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. (1994) 27 Cal.App.4th 567, 575 (
1339, 1347 (Jasmine D.).)
Case
law is divided as to the correct standard for appellate review of an order
determining the applicability of the beneficial relationship exception. Most published decisions have reviewed such
orders for substantial evidence (see, e.g., In
re Christopher L. (2006) 143 Cal.App.4th 1326, 1333;
abuse of discretion standard (see, e.g., Jasmine
D., supra, 78 Cal.App.4th at p.
1351; In re Aaliyah R. (2006) 136
Cal.App.4th 437, 449). The “practical
differences between the two standards of review are not significant,†and as a
reviewing court, we should interfere only if the facts, viewed in the light
most favorable to the judgment, are such that no reasonable judge could have
taken the challenged action. (
Turning
to the specifics of this case, we cannot say that no reasonable judge would
have terminated parental rights based on the evidence presented. While mother’s visits with John were
generally positive, her relationship with him cannot reasonably be described as
parental in nature. In the months
leading up to the dependency proceedings, mother showed immaturity and an
inability to focus on John’s significant special needs, relinquishing her
responsibility to the maternal grandmother.
Mother essentially left John with the grandmother and an aunt while she
pursued a relationship with the man who became her husband. During the reunification period, mother did
make significant progress in dealing with her own mental health issues and in
acquiring the skills that would be necessary to care for John. But despite these improvements and her
frequent visits, nothing in the record suggests that they had formed a
significant bond. The descriptions of
visitation throughout the case suggest that John looked to other people (foster
parents, the maternal grandmother) before looking to mother for comfort and
security. During supervised visits
following the gun incident, mother was distracted and disengaged, albeit
affectionate toward her son.
The
beneficial relationship exception requires more than a showing that the parent
and child have a friendly and loving relationship. (See In
re Brian R. (1991) 2 Cal.App.4th 904, 924; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418 (
child will always confer some incidental benefit to the child[,]’ †but the
beneficial relationship exception contemplates that the parents have “occupied
a parental role.†(Beatrice M., at p. 1419.) “
‘[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 an adoptive placement.’ [Citation.]†(In re
K.P. (2012) 203 Cal.App.4th 614, 621.)
“The exception must be examined on a case-by-case basis, taking into
account the many variables that affect a parent/child bond. The age of the child, the portion of the
child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect
of interaction between parent and child, and the child’s particular needs are
some of the variables which logically affect a parent/child bond.†(Autumn
H., supra, 27 Cal.App.4th at pp.
575-576.)
As
a young child with significant special needs, John’s interest in permanency and
stability is particularly acute. The
juvenile court did not err in concluding that his relationship to mother does
not outweigh that interest.
DISPOSITION
The
judgment (order terminating parental rights under section 366.26) is affirmed.
NEEDHAM,
J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
Welfare and Institutions Code.
not adoptable.
