In re T.M.
Filed 3/29/13 In re T.M. CA4/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 re T.M., a Person Coming
Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF
PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
E057004
(Super.Ct.No. RIJ1100010)
OPINION
APPEAL from the Superior
Court of
County. S. Patricia
Spear, Judge. (Retired judge of the Los
Angeles Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Johanna R. Shargel, under
appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County
Counsel, and Carole A. Nunes Fong,
Deputy County Counsel, for Plaintiff and Respondent.
M.M. (Mother) appeals after the
termination of her parental rights to
T.M. at a Welfare and Institutions Code section 366.26
apply the parental benefit exception of section 366.26, subdivision
(c)(1)(B)(i), and (2) termination of her parental rights on the basis of
poverty and homelessness was erroneous.
I
PROCEDURAL AND FACTUAL BACKGROUND
A.
Mother gave birth to T. in December
2010. T. was premature but in good
health, and there were no drugs in her system.
T. was transferred to Riverside
Community Hospital
on December 27, the same day that Mother was discharged from the hospital. T. was ready for discharge three days later,
on December 30. The hospital attempted
to contact Mother, but the information that she provided was inaccurate and her
phone had been disconnected. Mother did
not visit the hospital after Mother’s discharge. Mother had contacted the hospital two days
after she was discharged and reported that she was attempting to get a car seat
for T. but never came back to the hospital.
Mother had not provided the name of
T.’s father to the hospital. The
maternal grandparents reportedly lived in Rialto,
but Mother claimed they were out of town until January 2011. Mother contacted the hospital in late
December. She claimed she was
hospitalized and did not know when she would be discharged. She was advised that T. was ready for
discharge. Mother provided no contact
information and said she would call back.
The hospital contacted the
Services (the Department). On December 31, 2010, a social worker
came to the hospital for T. Mother
called the hospital while the social worker was present. Mother provided a telephone number and
address in Corona to the social
worker. Mother had diapers, blankets,
and clothing. She reported she did not
have a car seat. She was asked if she
had money to purchase formula but indicated she was planning to
breastfeed. Mother was informed that T.
might not breastfeed this long after birth.
Mother said she had not visited T. because she was suffering from
thought that T. was four to five weeks early.
Mother was advised that T. was being placed in foster care and that the
Department would assess Mother’s living situation the following day in order to
place T. in her care.
On January 1, 2011, the social
worker contacted Mother. Mother claimed
she was staying at a friend’s house and had purchased the necessary items for
T. Mother’s friends did not want the
Department inspecting their house.
Mother agreed to meet the social worker at the Department’s
offices. She was informed to bring her
pain medication so that they could confirm the reason she failed to visit
T. Mother stated she was just taking
ibuprofen.
Mother arrived with a car seat. She explained that she had been told that she
did not have to visit T. at the hospital.
She also said she had back pain and a cold. Mother began crying when asked about the
identity of T.’s father. When asked if
T. was the product of a sexual assault, she said she did not want to talk about
it. Mother was asked if she would
consider voluntary surrender of T., but she said it was “God’s plan†for her to
have the baby. Mother reported that she had
no family she could live with and probably could not move to a shelter with a
newborn baby. Since Mother’s current
home could not be assessed, and because the Department was concerned that
Mother had not visited T. at the hospital, T. was detained. Mother was referred to numerous services for
housing and to attempt to get supplies for T.
A visit between Mother and T. was
supervised on January 2. Mother was
appropriate during the visit but appeared unemotional. Mother still could not authorize an
inspection of the home in which she was residing. Mother could not find other housing. A phone number given for the maternal
grandparents had been disconnected.
On January 4, 2011, the Department
filed a section 300 petition. It alleged
under section 300, subdivision (b) that Mother lead a transient lifestyle, had
limited provisions to care for an infant child, and was unable to provide a
stable living environment. In addition,
it alleged pursuant to section 300, subdivisions (b) and (g) that the father
was unknown and thus could not be contacted to provide for T.
A hearing was held on January 5,
2011. The juvenile court found a prima
facie case and ordered T. detained.
B.
Hearing
In a jurisdictional/dispositional
report filed on February 4, 2011, the Department recommended that T. remain
outside the home and that Mother receive reunification services.
Mother was present at the detention
hearing and was informed of the date for the jurisdictional hearing. However, since that date, the Department had
been unable to contact her for an interview.
Mother called the Department after working hours and left messages
despite being advised that she should call during normal working hours. She had cancelled a visit with T.
Mother appeared to have no stable
housing as she had reported at different times living with friends or in a
hotel. Her current residence had not
been evaluated because Mother would not allow the Department to conduct the
evaluation. T., meanwhile, was
developing normally.
Visits had occurred between Mother
and T., supervised by the foster mother.
The foster mother reported that Mother was affectionate but appeared
uncomfortable. Mother had requested to
take T. to the bathroom alone but was not allowed to by the foster mother. Mother’s current residence and circumstances
were unknown to the Department.
A first addendum report was filed on
March 8, 2011. On February 28, 2011,
Mother had registered for a shelter. The
shelter was a nighttime shelter and only provided mats on the floor for
sleeping. There were no cribs provided
at the facility. On February 2, 2011,
Mother was referred to two shelters that provided transitional housing and
would be appropriate for her and T.
There was space in one of the shelters for Mother and T. Mother failed to contact the shelter and gave
no reason to the Department for not doing so.
Mother had been referred to a parenting education class but had not
attended. Visitation was appropriate,
however, and Mother appeared to have a bond with T.
The Department reported that Mother’s
housing remained unstable, and she was not able to adequately provide for
T. Mother had no other support; if she
stayed in a nighttime shelter, she would have to spend the day on the street. The Department was concerned that it had
provided mother with referrals to shelters that would create stable housing for
herself and T., but she failed to enroll.
At a hearing on the petition
conducted on March 11, 2011, the juvenile court recommended placement of T.
with Mother if a suitable home evaluation could be conducted.
On March 21, 2011, the Department
filed an ex parte application and
order for continued out-of-home placement.
Mother had found housing accommodations at the Circle of Hope Shelter in
Corona. However, this was a night
shelter only. As of March 16, 2011,
there was no transitional housing that could accommodate her and the baby
available at the Circle of Hope shelter.
Mother was mailed several referrals for transitional housing that would
take her and T.
According to a social worker who
supervised visits between T. and Mother, Mother exhibited some disturbing
behaviors. Mother had blocked the social
worker’s view of T. on occasions. Mother
also frequently asked to take T. into the bathroom alone. The visits were moved to the Department due
to these concerns. It was recommended
that T. remain in foster care.
The jurisdictional/dispositional
hearing was conducted on March 23, 2011.
Mother’s counsel advised the juvenile court that Mother was trying to
find a shelter to house her and the baby.
Mother disagreed with the wording in the petition that she was leading a
“transient lifestyle.†The Department
argued that Mother did not have stable housing despite numerous referrals and
did not have provisions for T.
The juvenile court expressed that it
was more concerned with Mother’s behavior during visitation. It was also concerned that Mother was
unavailable to T. in the hospital when she was born. It found the allegations in the petition
true, amending “transient†to “unstable housing.†Mother was granted six months of
reunification services. The juvenile
court allowed the Department to provide more visitation, and all services were
available to Mother.
C.
In the six-month status review
report filed on September 2, 2011, it was recommended that reunification
services be continued for Mother. It was
also recommended that Mother undergo a psychological evaluation. Mother continued to advise the Department
that she did not know the name of T.’s father.
Mother reported she was living at a
shelter in Corona. She had a room and
claimed to have access to a telephone, but the social worker had never been
able to contact her at the number. Mother reported she had a part time job as a
tutor and made $500 to $1,000 a month.
Mother’s phone number had been out of order since July 2011.
T. was eight months old and
developing normally. She had been with
her current foster mother since February 8, 2011, and they had bonded. The foster mother was interested in adopting
her.
Mother needed additional time to
complete her services. During some
visits, Mother had overfed T., and the baby had vomited later. Mother had been attending counseling since
May 28, 2011. The therapist had reported
that Mother was working hard to get T. back.
Mother had completed nine out of 14 weeks of a parenting classes. Visits between Mother and T. had been
appropriate. Mother fed T. and changed
her diaper. She also played with
her.
The Department was still concerned
that Mother was not forthcoming about her living situation. Although she claimed to find housing on July
1, 2011, she did not tell the social worker until August 30, 2011. The Department recommended that, once
Mother’s living situation could be approved, unsupervised and overnight visits
should be granted. Mother would have to
show she could remain in contact with the Department.
A six-month review hearing was held
on September 20, 2011. Mother’s housing
had been inspected. Mother’s therapist
would decide if she needed further psychological evaluation. The juvenile court continued reunification
services for six months, and unsupervised overnight and weekend visits were
authorized.
D.
The Department filed a 12-month
status review report on March 5, 2012.
It recommended that reunification services be terminated for
Mother.
She claimed she was living in a
motel on La Sierra Avenue in Riverside.
On February 29, 2012, the social worker contacted the motel and was told
that Mother was not residing there. The
Department did not know where Mother was residing. Mother had been living in a shelter that had
been evaluated by the Department.
However, less than a week after the evaluation, Mother moved out. Mother stated on February 21, 2012, that she
was going to move into an apartment in two weeks.
T. had a one-year check up and was
developing normally.
The Department recommended continued
out-of-home placement because Mother was “essentially homeless†and was
deceptive to the social worker about her living situation. Mother’s therapist had not provided a written
recommendation for a psychological evaluation and had provided no updates for
Mother. Mother completed her parenting
class. Visitation continued to be
appropriate.
The Department was concerned that
Mother had been deceptive since the beginning of the dependency and continued
to lie about her housing situation.
Mother had not been able to participate in overnight visits with T.
because she did not provide a location to be evaluated for the visits. Each
time the social worker tried to meet with Mother, she had an excuse why she
could not meet.
On March 20, 2012, the social worker
advised the juvenile court that Mother had been told that she needed to find
housing at some point in the process, and if she did, she should have the home
evaluated.
A contested review hearing was held
on April 26, 2012. Mother was not
present. As of the hearing, Mother had
not contacted the Department in order for it to complete a home
evaluation. Mother requested continued
services but presented no affirmative evidence. Mother’s reunification services
were terminated. A section 366.26
hearing was set.
E.
On August 8, 2012, the Department
filed a report for the section 366.26 hearing.
Mother was believed to be homeless.
During a visit with T. on July 17, 2012, she had dirt on her sleeves and
was carrying a bag with cans and bottles.
Mother stopped attending counseling in March 2012. T. was developing normally.
During visitation, T. was
“comfortable†with Mother. The
Department stated, “Out of home placement continues to be necessary and
appropriate at this time, as the mother . . . is
essentially homeless and has not located stable housing and has been deceptive
to the social worker about her living arrangements. She has not provided her current address.â€
On August 23, 2012, the section
366.26 hearing was conducted as will be set forth in more detail,
Mother’s parental rights were terminated and T. was freed for
adoption. Mother filed a notice of
appeal.
II
BENEFICIAL PARENT EXCEPTION OF SECTION 366.26,
SUBDIVISION (C)(1)(B)(i)
Mother argues that the beneficial
parent exception of section 366.26, subdivision (c)(1)(B)(i) applied, and the
juvenile court erred by terminating her parental rights.
A.
At the section 366.26 hearing, the
Department submitted on the section 366.26 report. Mother did not object to the reports. She objected to adoption as the permanent
plan and requested guardianship.
Mother’s counsel argued Mother was homeless due to the economy but had
maintained consistent contact.
Visitation between Mother and T. had been appropriate. Mother’s counsel stated, “So I would ask the
Court to find the exception under 366.26(c)(1)(b)(1), parent has maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship.†The
Department conceded that Mother had maintained regular visitation. However, Mother had never had custody of T.,
and her visitation was always supervised.
There was not an opportunity to establish a positive emotional
attachment.
The juvenile court recognized the
preference for adoption. It found that
T. was adoptable. It then stated that
Mother had to show that it was in T.’s best interest to not terminate parental
rights. It stated, “The Court can’t make
that finding.
The . . . child was removed from birth. Mom didn’t originally take the child from the
hospital. She hasn’t been able to
establish a home. And I’m not sure why
that is. But she hasn’t really been very
active in the services. She
has . . . discontinued services, but she has visited. [¶]
[B]ut the child is very, very young, and so the Court finds that that
visitation in and of itself is not a sufficient or compelling reason at all to
determine that the benefits of adoption have been outweighed
by . . . maintaining mom’s parental rights. So at this point, the Court is prepared to
terminate mom’s parental rights.â€
B.
At the section 366.26 hearing, the
sole issue “‘is whether there is clear and convincing evidence that the child
is adoptable.’ [Citations.]†(In re
Josue G. (2003) 106 Cal.App.4th 725, 733; see § 366.26, subd.
(c).) “Adoption, where possible, is the
permanent plan preferred by the Legislature.â€
(In re Autumn H. (1994) 27
Cal.App.4th 567, 573.) If the court
finds that a child may not be returned to his or her parents and is likely to
be adopted, it must select adoption as the permanent plan, unless it finds that
termination of parental rights would be detrimental to the child under one of
the seven exceptions set forth in section 366.26, subdivision (c)(1)(A) and
(c)(1)(B)(i) through (v). (See
766, 773.)
The parental benefit or “beneficial
relationship†exception is set forth in section 366.26, subdivision
(c)(1)(B)(i). The exception applies
where “‘[t]he parents . . . have maintained regular visitation and contact with the
minor and the minor would benefit from continuing the relationship.’†(In re
Derek W. (1999) 73 Cal.App.4th 823, 826.)
The parent has the burden of proving that the exception applies. (Ibid.;
In re Megan S. (2002) 104 Cal.App.4th
247, 251.)
“The parent must do more than
demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with
the child, or that parent and child find their visits pleasant. [Citation.]
Instead, the parent must show that he or she occupies a ‘parental role’
in the child’s life.†(
p. 827.) “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.]†(In re
K.P. (2012) 203 Cal.App.4th 614, 621.)
The substantial evidence standard of
review applies to the evidentiary showing with respect to factual issues, such
as whether the parent has maintained regular visits with the child. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) A challenge to the juvenile court’s
determination of questions such as whether there is a compelling reason for
determining that termination of parental rights would be detrimental to the
child is “‘a quintessentially discretionary determination.’†(Id. at
pp. 1314; see also In re Scott B.
(2010) 188 Cal.App.4th 452, 469.) We
review such decisions for abuse of discretion.
(Bailey J., at p. 1315.)
There is no dispute that Mother
participated regularly in visitation.
However, Mother failed to show that the juvenile court abused its
discretion by finding that the parent/child bond between T. and Mother was such
that they would be irreparably harmed by terminating the relationship.
“The factors to be considered when
looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of
the child’s life spent in the parent’s custody, (3) the positive or negative
effect of interaction between the parent and the child, and (4) the child’s
particular needs.†(In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) Mother did not show that her relationship
with T. was important and beneficial.
T. came to the attention of the
Department when Mother did not pick her up from the hospital when she was ready
to be discharged. Mother never gave an
adequate reason either for her failure to visit T. in the hospital or her
failure to pick her up at the time of discharge. She gave different reasons each time she was
asked: she did not have a car seat; she
had back pain, she was told she did not have to visit the hospital, she had a cold. T. and Mother never bonded after T.’s
birth. T. was immediately placed in
foster care. She was moved once but was
placed with the foster mother for almost her entire life. T. never lived with Mother. T. was a baby who needed nurturing and
constant support. Mother provided none
of this.
This case is similar to the
situation in In re Bailey J., supra, 189
Cal.App.4th 1308. There, Bailey was
taken from his mother’s custody when he was only two days old due to her and
his father having a history of abuse and neglect of their other children. (Id.
at p. 1312.) Visits between Bailey and
his mother were supervised and went well.
Bailey had been placed with the same foster mother since his birth, and
she wanted to adopt him. (
The juvenile court found at the section 366.26 hearing that Bailey would
not benefit from continuing the relationship with his mother. (Bailey
J., at p. 1313.)
The appellate court found that the
juvenile court did not abuse its discretion in refusing to apply the exception. It concluded, “This evidence did not
establish that the relationship between the mother and Bailey was a beneficial
parental relationship. As Bailey was
detained when he was two days old, he spent no part of his life in the mother’s
custody. Her entire relationship with
Bailey was established through supervised weekly
visits. . . . At best,
mother’s supervised interactions with Bailey amounted to little more than play
dates for him with a loving adult. Their
frequent and loving contact was insufficient to show the requisite beneficial
parental relationship. For instance, the
mother produced no evidence that Bailey looked forward to visits with her or
had difficulty separating from her at the end of their visits. While there was no evidence that the visits
themselves were detrimental to Bailey, there was also no evidence that Bailey
benefitted from these visits. The undisputed
evidence did not establish that the mother had a beneficial parental
relationship with Bailey.†(
Here, there was no evidence that
there was any bond beyond a playmate or caregiver between T. and Mother. Although Mother took care of T. during the
supervised visits, there was no evidence that T. would cry at the termination
of the visits or express any emotional attachment to Mother. Mother’s own deception thwarted any attempts
by the Department to assist her in establishing a bond with T. Overnight and unsupervised visits had been
authorized, but Mother refused to notify the Department of her living
situation.
Even if Mother could establish a
beneficial relationship, she cannot show that the relationship outweighed “‘the
well-being the child would gain in a permanent home with new, adoptive
parents.’ [Citations.]†(In re
K.P., supra, 203 Cal.App.4th at p. 621.)
T. barely knew Mother. T. was
bonded to the foster mother, with whom she had been placed since she was only a
few days old. The foster mother was
committed to adopting T. Based on the
foregoing, the juvenile court did abuse its discretion by finding that the
parental benefit exception did not apply in this case.
III
POVERTY AND HOMELESSNESS AS REASONS FOR TERMINATING
PARENTAL RIGHTS
Mother contends that the juvenile
court improperly took into account her homelessness and poverty in terminating
parental rights. As argued by the
Department, Mother never raised this issue in the lower court at the section
366.26 hearing. At the section 366.26
hearing, Mother argued that the parental benefit exception applied and that the
juvenile court should consider guardianship instead of adoption. Mother’s failure to raise the issue that the
juvenile court could not terminate her parental rights on the basis of poverty
or homelessness below waives the issue on appeal. (In re
Anthony P. (1995) 39 Cal.App.4th 635, 641-642.)
Moreover, the record establishes
that the trial court did not terminate Mother’s parental rights on the basis of
poverty or homelessness. We agree that
“[p]overty alone, even abject poverty resulting in homelessness, is not a valid
basis for assertion of juvenile court jurisdiction†(In re G.S.R. (2008) 159 Cal.App.4th 1202, 1212), and homelessness
is not a reason for terminating parental rights (see In re P.C. (2008) 165 Cal.App.4th 98, 103-104, 107). Here, Mother’s parental rights were
terminated because she abandoned T. at birth and then evaded the Department
throughout the dependency proceeding.
The Department was unable to place T. with Mother because Mother would
provide no information regarding her living situation or anything else. The issue was not whether she could find
suitable housing; rather, it was that she refused to provide information to the
Department and the court.
Appellant relies on
two boys were taken from their mother when she was arrested. (In re
G.S.R., supra, 159 Cal.App.4th 1 at
p. 1205.) A few months later, the boys’
father, who had a history of drug abuse and domestic violence, appeared in the
proceedings. The father had completed a
drug program and a domestic violence program.
He was declared a nonoffending parent and granted reunification
services. He was unable to take custody
of the boys because he rented a room in a house that could not accommodate
children. (Id. at pp. 1206-1207.) The
father maintained visitation throughout the proceedings but could not secure
appropriate housing. The only evidence
in the record that the father could not obtain suitable housing was the lack of
money. The court terminated father’s
parental rights. (Id. at pp. 1209-1210.)
On appeal, the court found that all
of the father’s issues with domestic violence and substance abuse had been
resolved, and the only unresolved matter was his inability to afford
housing. The court found, “The record
strongly suggests the only reason
[the father] did not obtain custody of the boys was his inability to obtain
suitable housing for financial reasons.
But poverty alone, even abject poverty resulting in homelessness, is not
a valid basis for assertion of juvenile court jurisdiction. . . . [I]ndigency,
by itself, does not make one an unfit parent and ‘judges [and] social workers .
. . have an obligation to guard against the influence of class and life style
biases.’ [Citation.]†(In re
G.S.R., supra, 159 Cal.App.4th 1
at p. 1212.) “Under these circumstances,
we determine [the father]’s due process rights were denied by DCFS’ failure to
demonstrate sufficient detriment and the juvenile court’s failure to find a
legitimate basis for deeming him unfit.â€
(Id. at p. 1215.)
Here, unlike in G.S.R., Mother had been found to be an unfit parent. Moreover, there was much more to Mother’s
inability to provide suitable housing than her financial problems. Mother continued to deceive the Department by
refusing to provide proper contact information.
Mother was offered at every turn opportunities for suitable housing, but
she rejected them. At one point in the
proceedings, Mother had reported that she was working, but she refused to give
the Department any information as to her living situation. It is not at all clear from the record that
she was not finding suitable housing because of poverty. Finally, when the Department finally had
evaluated Mother’s housing, she immediately moved out and did not remain in
contact with the Department.
The juvenile court did not terminate
Mother’s parental rights on the basis of poverty and homelessness. It had before it clear and convincing
evidence that there was a substantial danger to T. if she remained with Mother
because Mother continued to be deceptive and evasive. The trial court did not error by terminating
Mother’s parental rights.
IV
DISPOSITION
The orders of the juvenile court are
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting
P. J.
CODRINGTON
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
identity of T.M.’s father is unknown.
