In re Tristan F.
Filed 9/11/12 In re Tristan F. 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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re
TRISTAN F., a Person Coming Under the Juvenile Court Law.
SAN
FRANCISCO HUMAN SERVICES AGENCY et al.,
Plaintiff and Respondent,
v.
GLORIA F.,
Defendant and Appellant.
A133509
(San
Francisco City
and County
Super. Ct.
No. JD09-3267)
The
juvenile court terminated the parental rights of Gloria F. (mother) and
John M. (father) with respect to their son, Tristan. (Welf. & Inst. Code, § 366.26.)
rights must be reversed because the beneficial relationship exception
(§ 366.26, subd. (c)(1)(B)(i)) is applicable; (2) the juvenile
court abused its discretion in denying her request for a bonding study;
(3) the juvenile court failed to consider Tristan’s wishes; and (4) the
juvenile court’s written findings and orders contained a mistaken finding that
visitation with Mother is detrimental.
We affirm.
PROCEDURAL B
The
following facts are taken from our August
4, 2011 opinion, in which we denied, on the merits, mother’s writ
petition (No. A132058) challenging the termination of
section 366.26 hearing.
name="_ftnref2" title="">[2]
“Section 300 Petition
“On September 29, 2009, the [San Francisco
Human Services Agency (Agency)] filed a section 300 petition on behalf of
Tristan, who was seven years old at the time.
The petition alleged mother’s failure to protect Tristan (§ 300,
subd. (b)), on the grounds that mother was unable to provide adequate care
because of untreated mental illness, substance abuse, and
were called on September 25, 2009,
when mother was walking down the street with Tristan while ‘severely
intoxicated’ and ‘totally out of control.’
Mother was physically and verbally combative with police officers who
arrived at the scene. She later admitted
resisting arrest. The petition states
that mother has a criminal history dating back to 2003, that Tristan had
previously been declared a court dependent, and that there have been nine
previous dependency referrals involving alcohol abuse, domestic violence, and
physical abuse and neglect. According to
the petition, mother has also ‘educationally neglected’ Tristan. Finally, the petition states that Tristan’s
alleged father has been unable to protect him from mother’s abuse and has a
history of domestic violence with mother.[
“Detention Report & Hearing
“The
detention report was written by social worker Karla Veal. Veal reported that, on September 25, 2009, a
concerned citizen reported mother was severely intoxicated and walking in and
out of traffic with a young child. When
police arrived, mother was combative and used profanity in front of Tristan,
despite being warned that her behavior was upsetting to him. Tristan informed the officers that ‘[mother]
swears a lot and that [she] drinks sometimes but not as much as she used to.’ A police report was attached to the detention
report. Mother admitted two prior
arrests, occurring in 2003 and 2005. The
report indicated that Tristan had been previously detained in January, 2009,
due to allegations of physical abuse and neglect by mother. He had been returned to mother, who engaged
in some voluntary services. The report
also indicates: ‘The Indian Child
Welfare Act does or may apply. [¶] . . . [¶] The mother reports
that she is full blood Shu Swap [sic]
from Canada but that her tribe is not federally recognized.’
“An
addendum detention report indicated that the social worker had spoken with the
arresting officer, who confirmed that mother was arrested for public
intoxication and resisting arrest. The
officer stated that mother’s record revealed she had previously been arrested
for driving under the influence. The
social worker also interviewed Tristan, who stated he was aware that mother was
drunk on September 25 because he had seen her drunk before. Tristan also stated that he ‘takes care of
himself’ by cooking and arranging a ride to school when his mother is drunk.
“On
September 30, 2009, [Commissioner Catherine Lyons] ordered Tristan detained in
foster care.
“Jurisdiction Report and Determination
“In the
jurisdiction/disposition report, filed November 16, 2009, a new social worker,
Vicki Saltzer-Lamb, wrote: ‘When she was
10, [mother] was gang-raped by her three teenaged brothers and went to live
with her maternal uncle. She left his
home when she was 16 and has been on her own since that time. . . .
[¶] . . . [¶] In 9/07, the mother filed a report alleging that
the father was sexually molesting Tristan. . . . [¶] On
1/09, [mother] was arrested and charged with [c]hild [c]ruelty after she
allegedly physically assaulted Tristan and left him alone at home while she was
intoxicated.’
“The report
indicated that mother began inconsistently attending therapy in
March 2009. Mother was diagnosed
with an adjustment disorder and had been prescribed Effexor, which she had not
been taking. Saltzer-Lamb wrote: ‘[M]other adamantly denies that she has a
problem with alcohol, states she has stopped drinking and is not interested in
participating in treatment.’ The report
noted that mother and Tristan were visiting weekly and would soon begin
therapeutic visitation. The social
worker indicated that mother had been referred for a substance abuse evaluation
and random testing. The report
concluded: ‘There is a need for Court
intervention and placement, and return of the child would be detrimental to the
safety, protection, or emotional or physical well being of the child
because: The mother has an alcohol abuse
problem and mental health issues for which she is not being currently
. . . treat[ed].’
“On January
29, 2010, mother submitted on the allegations of the petition at the
jurisdiction and disposition hearing.
[Commissioner Lyons] adjudged Tristan to be a dependant of the juvenile
court and ordered supervised visitation and reunification services for mother. The court adopted the Agency’s proposed
reunification plan, which provided:
‘[T]o be considered for reunification, the mother must complete the
following service plan: [¶] 1. That the mother complete an outpatient
drug/alcohol treatment program which includes counseling and testing, and that
she not terminate the program without the approval of the Child Welfare
Worker. (This program must have a strong
alcohol abuse focus.) [¶] That the mother undergo a psychological
evaluation and follow any recommended treatment. . . .
[¶] 2. Individual therapy. [¶] 3. That the mother remain
under the care of a qualified mental health professional and comply with the
mental health professional’s recommendations for psychotherapy and/or
prescribed medication. [¶] 4. That the mother sign necessary consents
to release information, in order to evaluate her compliance with the
reunification services. [¶] 5. That the mother visit the child on a
regular basis prior to reunification and maintain other contact and
involvement, as arranged by the Child Welfare Worker.’
“Six-Month Review
“The
six-month review report, filed by the Agency on July 7, 2010, recommended that
reunification services for mother be continued for an additional six
months. The new social worker assigned
to the case, Tommy Pazhempallil, indicated, in his report, that mother had
completed a psychological evaluation and was under the care of a
therapist. The therapist reported that
mother had missed some sessions. The
report also stated: ‘The mother is
diagnosed with PTSD both in early development and as an adult after becoming a
victim of sexual abuse. She has [a] long
history of alcohol abuse with prior DUI convictions. She [also has a] diagnosis of Borderline
Personality Disorder on Axis II. [¶] . . . [¶] The mother denies
any addiction problems.’
“Pazhempallil
wrote: ‘The mother has not fully
utilized therapeutic visitation services to her advantage to gain effective
parenting skills. She cancelled several
therapeutic visitation sessions scheduled for 1/20/10, 1/27/10, 2/3/10,
2/17/10, 2/18/10, 2/24/10, 2/16/10, 3/1/10 for numerous reasons including being
busy with moving, sick or having to work.’
Accordingly, visits were reduced to once a week. The report continued: ‘Tristan attends therapy every Tuesday. According to his therapist . . .
[he] is showing more maturity and is thriving with all the support and care
from his foster parents. . . . [¶] . . . [¶] The
minor and his mother have been visiting weekly.’
“The report
indicated that mother started an outpatient substance abuse treatment program,
at the IRIS Center, and then quit in January 2010. The report observed: ‘[M]other was again referred for out-patient
program, but did not further provide the Agency any proof of enrollment in any
program. The mother stopped random
testing after her last testing on 1/25/10.
The mother did not follow-through with subsequent referrals for drug
testing on 3/3/10 and again on 5/5/10.
While she was testing prior to 1/25/10, the mother tested positive for
marijuana five times.’
“At the
review hearing, on August 4, 2010, [Commissioner Lyons] renewed Tristan’s
dependency status and ordered services to continue.
“12-Month Review Report
“The
12-month review hearing was originally calendared for December 1, 2010. The status review report, filed on November
15, 2010, recommended that reunification services be terminated. The report noted that mother had ‘made
progress in keeping therapeutic visits [with Tristan] regularly and had been
demonstrating appropriate parenting skills during visits.’ But, the foster mother reported that ‘the
minor came back from a few of these visits on Thursdays confused and anxious
recounting stories and conversations [with] mother . . . . It has been reported that during one of the
visits, the mother made the minor believe that when the police arrested her she
was beaten up by the police, who also hurt her and stole her stuff. On another visit, Tristan came back believing
that his foster mother and attorney want to keep him in foster care because
they are getting paid.’
“The report
noted that mother had resumed weekly drug testing after August 17, 2010. However, three out of the 12 tests had
been positive for marijuana. The report
also observed: ‘It is unknown to the
Agency, if the mother has worked through her alcoholism
. . . . The mother
adamantly denies that she has a problem with alcohol and states that she has
stopped drinking.’ The report
states: ‘[A] case manager at Lee
Woodward [Counseling Center] on 11/10/10 verified on the phone that the mother
had just started out patient treatment at [that] agency effective 10/13/10, and
she has been attending groups. The
Agency has not received any detailed information or verification of the
mother’s requirements for participation or her attendance in out-patient
services at Lee Woodward. According to
[the case manager], the mother had specifically instructed Lee Woodward not to
provide any written verification of mother’s participation.’
“With
respect to mother’s progress on her mental health issues, the report
noted: ‘Tenderloin [Mental Health]
Clinic staff verified that the mother did not keep her 8/31/10 intake
appointment for psychiatric services.
The mother later informed the Agency that she had rescheduled her intake
appointment for 10/18/10, and again for 10/29/10, but [she] did not follow
through with the appointment. On
11/8/10, the mother called again [to] report she has been scheduled for an
assessment appointment on 11/17/10. The
mother has not followed-through with the referral given to her for mental
health services in a timely manner.’ The
report also stated that mother had not provided her consent to release
information from the Clinic to the Agency.
However, mother had been attending regularly therapy sessions with a
marriage and family therapist . . . .
“Pazhempallil
wrote that he ‘met with the mother in person every month and made phone
contacts regularly. During these
contacts, the mother was reminded about her responsibilities and court ordered
requirements for reunification.’ The
report contained the following assessment:
‘Despite many services offered to the mother, over a period of several
years, including during the last 12 months of reunification, the mother’s
underlying problems of substance abuse and need for mental health treatment
services has not been addressed. The
mother has the tendency to choose the services that she wants and refuse
services she does [not] consider as important.
Her denial about her problems, and resistance to substance abuse
treatment services and mental health treatment have prevented her from fully
utilizing these services in a timely manner.
Her recent positive tests for marijuana, three times in October 2010,
raises serious concerns about her efforts to remain clean and sober. [¶]
. . . [¶] At this time of twelve months into reunification, the
mother has made only minimal progress towards her reunification goals. She has not made any serious effort towards
resolving substance abuse issues and mental health treatment needs.
. . . The mother continues to avoid participation in required
services in a timely manner and she engages in finding reasons or excuses for
not participating each time. [¶] [Mother’s] explosive anger issues
continue to impede her ability to maintain healthy interpersonal relationships. Incidents reported by service providers and
situations experienced by the undersigned indicate that the mother can become
angry very easily, resulting in serious conflicts and verbal confrontations
with others. Given her history and current
stressors, it is very difficult for her to be effective with regard to
parenting.’ The report noted that an
adoptive home study was in progress.
“[Commissioner
Lyons] continued the 12-month review hearing after appointing new counsel to
represent mother.
“Mother’s Motion to Change Visitation
“On January
3, 2011, mother asked the court to modify its visitation order to allow for
unsupervised visitation. [Commissioner
Lyons] denied mother’s motion.
“Participation by the Simpcw First Nation
“On January
26, 2011, the chief of the Simpcw First Nation (the Nation)[
wrote a letter to the court, which stated:
‘Please be advised that [Tristan] is a registered member of the Simpcw
First Nation and a Canadian citizen. As
such, our Nation has an interest in the planning for any child from this community.
[¶] . . . [¶] While our band has no interest in disrupting
Tristan’s life, we do wish to be advised and involved in any planning affecting
him. We believe that it is essential
that [he] be aware of his heritage and be permitted to maintain links to his
culture, community and extended family.’
“Mother
filed a motion to continue the 12-month review hearing so that the Nation’s
interest could be evaluated. Mother
conceded that [the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et
seq.)] did not apply because the Nation is not a federally recognized
tribe. Nonetheless, Mother argued that
ICWA standards should be used in Tristan’s case as ‘a best practices
guide.’ [Commissioners Lyons] continued
the 12-month review hearing to April 4, 2011, and set a hearing in the interim
to determine ICWA applicability.
“The Nation
also filed a motion to dismiss the dependency petition so that proceedings
could be initiated in a Canadian court.
In the alternative, it sought to participate in the dependency proceedings,
pursuant to section 306.6.[
name="_ftnref5" title="">[5]]
“On March
24, 2011, [Commissioner Lyons] denied the Nation’s motion to dismiss, but
granted its motion to participate. The
court also concluded that ICWA does not apply because the Nation is not
recognized by the United States federal government. (See In
re Wanomi P. (1989) 216 Cal.App.3d 156, 159, 166–168, 171 [juvenile court
erred in concluding ICWA applied to child born to mother who is member of
Canadian Indian tribe].)
“Termination of Nontherapeutic Supervised Visitation
“Tristan’s
counsel notified the court that ‘[he] continues to receive information that the
mother is behaving inappropriately during her supervised visits.’ Specifically, counsel noted that the
visitation supervisor informed him that ‘during the visit on January 29,
2011 [mother] promised Tristan 20,000 dollars from a lawsuit against MUNI. The lawsuit is far from being resolved. Tristan was very excited and spent much of
the weekend obsessing about the money.
In spite of previous admonitions, mother continues to have discussions
with Tristan during the Saturday visits that are disruptive and harmful to her
son.’ Thereafter, the court suspended
ongoing.
“Addendum Status Review Report
“On March
16, 2011, the Agency filed an addendum status review report, in which the
Agency continued to recommend termination of reunification services. The Agency noted that mother had continued to
refuse to authorize the release of information to the Nation or from Lee
Woodward. The Agency had also not
received any verification from the Tenderloin Clinic showing that mother had
participated in mental health treatment services. The Agency concluded: ‘[M]other has not completed an out-patient
drug/alcohol treatment program during the reunification period. Given her extensive history of alcoholism and
arrests for public drunkenness and DUI, her recent engagement in treatment
services at Lee Woodward during the last four months has been minimal to
address her long history of alcoholism.’
“The
addendum report also noted that Tristan had suffered anxiety and confusion
after recent visits with mother. For
example, he was told that he would soon be going to live with his maternal
uncle in British Columbia. The report
concluded: ‘[Mother’s] inconsistent and
inadequate progress towards reunification, presents a high risk level for
further abuse or neglect if the minor is returned to the mother. [Mother’s] mental health and substance abuse
problems also remain unaddressed leading to her inability to cope with
situational stressors, crises or problems that will arise while parenting a
minor.’
“Contested 12-Month/18-Month Review Hearing
“The
contested 12-month and 18-month review hearing was held[, before Commissioner
Lyons,] over the course of several days
in April and May 2011.
“Tristan’s
counsel called the psychologist who conducted an evaluation of mother, in
December 2009. The evaluation report was
admitted into evidence. Dr. Holden
testified that, given mother’s apparent lack of compliance with therapy at that
time, ‘it would be supremely difficult for her to overcome [her emotional
impairments] to a significant degree.’
Dr. Holden also testified that mother would need long-term external
support and structure to experience less stress.
“The social
worker, Pazhempallil, testified regarding the reunification services offered
and mother’s progress under the plan. He
stated that mother had failed to submit to drug testing between January 25,
2010 and August 17, 2010. When mother
stopped drug testing, Pazhempallil met with her and reminded her of the
requirement. Mother told him that she
was too busy seeking employment and could not find the time for testing. She resumed testing consistently on August
25, 2010. Since that time she had never
tested positive for alcohol.
“Pazhempallil
testified that mother had discontinued outpatient treatment at the IRIS Center,
after complaining that the program was incompatible with her work
schedule. He met with her to remind her
of the reunification requirements and provided her with a list of 17
alternative outpatient centers in May 2010.
Ultimately, he was informed that mother began outpatient treatment at
Lee Woodward in approximately October 2010. He also testified that one of the
requirements of mother’s reunification plan was that she provide her consent
for the release of information from Lee Woodward to the Agency. However, Pazhempallil had never received a
valid release. He did receive a copy of
a release from mother’s attorney in March 2011, but stated it had expired by
the time he received it. He had spoken
with a case manager at Lee Woodward but was told that mother had given specific
instructions not to share ‘any documentation or verification.’
“Pazhempallil
also testified that mother’s nontherapeutic supervised visits with Tristan at
the Bayview Family Resource Center had been terminated because of concerns
regarding the interactions. It was reported
by the foster parents that Tristan displayed anxiety and confusion after those
visits. Supervised therapeutic
visitation remained ongoing and productive.
Unsupervised visitation was considered at one point, but was not
approved because of mother’s behavior during supervised visits and her lack of
progress towards reunification. [¶] . . . [¶] . . .
Pazhempallil concluded that reunification services should be terminated because
‘mother has not utilized [such services], within a reasonable period of time,
to work towards reunification goals . . . .’ [¶] . . .
[¶]
“The
director of operations for the Dry Dock, Alexandra Blacis, testified for
mother. Dry Dock hosts 12-step
meetings. Blacis testified that mother
began attending Alcoholics Anonymous (AA) meetings in March 2010. She testified: ‘I saw her almost every day
. . . .’ She further
testified: ‘[Mother has] grown in leaps
and bounds. She doesn’t explode anymore.
. . . [S]he’s got a calmness about her. When we discussed the case and her feelings
about it she’s analytical and calm whereas early on she was a little bit
volatile. So there’s been a tremendous
amount of growth . . . .’
Mother had become a sponsor and served as secretary at several AA
meetings a week. Mother told Blacis that
she had relapsed on one occasion.
“Mother
testified and acknowledged she had an alcohol problem. She testified that she quit treatment at the
IRIS Center for several reasons. First,
she did not feel comfortable and safe there.
She also lost her disability income and the IRIS schedule interfered
with her ability to work. Mother was
told that she would not get her son back if she was homeless. Mother told the social worker she wanted to
go to Friendship House for treatment of her alcohol problem.[
only offered residential services, mother continued to ask for a referral to a
different program. Mother was referred
to Lee Woodward in August 2010. She was
put on a wait list and began treatment in October 2010. Mother testified that the program was
‘awesome’ and she would be graduating in April 2011.
“Mother
began attending AA meetings in February 2010.
She had one relapse, in July 2010, when she had one beer. Mother said she had not had a drink since. Mother testified that she did not smoke
marijuana. She only tested positive for
marijuana because she had been in the same room with a former boyfriend who
smoked it. [¶] Mother had also been attending weekly therapy. [¶]
. . . [¶]
“[Termination of Reunification Services]
“After
argument, [Commissioner Lyons] indicated on the record: ‘I will follow the recommendation of the
Agency in this case. I don’t do it
happily, but I believe the evidence requires this result.’ The juvenile court found that return of Tristan
to mother would create a substantial risk of detriment. The court said: ‘The facts upon which [I base] the decision
that his return would be detrimental are generally a failure of the mother
. . . to consistently participate in her treatment programs; more
particularly her refusal to release information to the Agency, to the tribe and
the band, her refusal to meet with the social worker, misrepresenting facts to
Tristan during visits, her use of marijuana.’
The court concluded that there was no substantial possibility of
return. The court also found that the
Agency had provided reasonable services to mother. Reunification services were terminated and a
section 366.26 hearing was scheduled for August 31, 2011. . . .â€
The
following facts concern events that occurred after the juvenile court
terminated reunification services:
Placement and De Facto Parent Hearings
While
mother’s writ petition was pending before this court, she filed an application
for ex parte hearing regarding placement.
Mother asked the juvenile court to delay placing Tristan in an adoptive
home until relative placement assessments had been completed. On June 1, 2011, Commissioner Lyons granted
mother’s ex parte application.
Thereafter,
Tristan’s respite caregivers, Deirdre E. and Kent H., asked to be
appointed de facto parents. A supplement
to the de facto parent request, filed by Tristan’s counsel, indicated that
Tristan wanted to live with Deirdre and Kent and that he had begun calling them
“Mommy†and “Daddy.†Tristan’s counsel
indicated that he supported the de facto parent request. On July 14, 2011, Commissioner Lyons granted
Deirdre’s and Kent’s request for de facto parent status and appointed counsel
to represent them.
Tristan’s
counsel filed an ex parte application to reduce supervised visits with mother
from weekly to once a month. The motion
stated that visits continued to be disruptive and that Tristan was acting out
after visits. Commissioner Lyons granted
the application.
The Agency
also submitted a request to change a court order (Judicial Council Forms, form
JV-180), which recommended that Tristan be placed with the de facto parents
immediately. The Agency’s JV-180 report
indicated that it had not been made aware of the potential for placement with
mother’s relatives in Canada until February 2011—17 months after Tristan
was detained. Furthermore, mother had
refused to sign consent forms allowing the Agency to speak directly with
maternal relatives. The report also
noted: “[T]he Agency became aware of the
interest expressed by [Deirdre] and Kent . . . in adopting Tristan in
the event that the reunification with [mother] did not materialize. Tristan has already developed a very special
relationship with [Deirdre] and Kent, who have been involved in hi[s] life,
ever since he moved into foster care effective September 2009. As approved by the Agency, Tristan has been
visiting the couple overnights on Saturday effective November 2010, and also on
Wednesdays effective March 2011. . . . Both [Deirdre] and Kent have
already become a big part of his life in a very positive way. It has been reported that Tristan looks
forward to these visits and enjoys the time he spends with [Deirdre] and Kent.
“The Agency
received a homestudy for [Deirdre] and Kent, which has been reviewed and
approved by the Agency. Since the
efforts made [by] the Agency to identify a potential relative home for Tristan
did not yield any results, a disclosure meeting was held with [Deirdre] and
Kent on 5/26/11 considering the best interest of the minor. After the couple expressed their willingness
to pursue Tristan’s adoption, the Agency made the decision for a change of
placement for Tristan effective 6/2/11.
Both [Deirdre] and Kent have dual Canadian Citizenship and [Deirdre]
reportedly has lineage to Cree First Nations in Canada through maternal
relatives who currently reside[] in Nanaimo, on Vancouver Island in British
Columbia, Canada. They hold deep respect
for this and have conveyed their full intention to do everything in their power
to facilitate and maintain a connection between Tristan’s cultural and family
heritage. They have also expressed their
willingness to plan summer family vacations to introduce Tristan to his
heritage and culture through participation in Powwows or other cultural
ceremonies in British Columbia. They
fully support the fact that it is very important for Tristan to be connected to
and proud of his ancestral history. [¶] . . . [¶]
“Tristan
has not developed any relationship with his extended family in Canada as it was
never promoted or encouraged by . . . mother. He had no contacts or visits with any of the
relatives after he left Canada with his mother at a very young age. He does not remember any of his maternal
relatives and does not know any relatives except through what the mother has
told him recently about individual names and relationships.
[¶] . . . [¶] [Deirdre] and Kent have informed the
Agency that they are very open to maintaining contacts and connections with
[mother] and maternal relatives in Canada.
The Agency intends to refer the matter to the Consortium for Children
for permanency planning mediation to establish written plan for contact between
the family members, the Band and [Tristan.]â€
Mother
opposed the request for a change of placement, arguing that relative placement
was preferred. On July 20, 2011, the
Agency submitted an additional report.
Pazhempallil indicated that further assessment of the maternal relatives
had been conducted. Pazhempallil
wrote: “The Agency’s administrative staff
appreciated the fact that the court proceedings and the Band’s involvement in
this matter have facilitated in the finding of relatives and extended family
members. However, because of the fact
that Tristan has not developed significant relationships with any of the
maternal relatives after he left Canada with his mother when he was two and a
half-years old, they remain as strangers to him. . . . During
consultations it was noted that Tristan had the opportunity to have a
relationship with [Deirdre] and Kent which, gradually, blossomed to a special
and intimate one. Severing this all
important relationship and his special ties he developed in San Francisco by
relocating Tristan to Canada, will only undermine the progress made and further
elevate the risk of trauma and insecurity . . . . [¶] On
7/11/11, the undersigned . . . consulted with Dr. Liberman,
Psychologist Consultant and Child Trauma Expert. According to Dr. Liberman, Tristan is at
an age, where he has developed an insecure attachment with his mother and he
feels very responsible to protect her and be loyal to her. Having experienced many psychological
difficulties and trauma in his life, while being raised by his mother who has
been diagnosed with Post Traumatic Stress Disorder, Mood Instability, and
Borderline Personality Disorder, Tristan feels obligated to please his
mother. Although Tristan has developed a
very strong sense of divided loyalty, he has been thriving in a developmentally
supportive foster family environment for the last two years. Placing the minor in Canada will make him
more vulnerable to further insecurity and instability since the mother has
promised to come to Canada and bring him back to San Francisco.
[¶] . . . Dr. Liberman strongly believes that placing [Tristan]
in Canada will be detrimental to Tristan’s best interest as there is every risk
for him retreating to unstable and unpredictable emotional and behavioral
problems.â€
Pazhempallil’s
report went on to note: “[I] had the
opportunity to witness the very personal interactions between Tristan and Kent
on two occasions. During a face-to-face
meeting with the minor in the home [Deirdre] and Kent on 7-5-11, Tristan was
seen engaging and interacting with Kent with [as] much emotional attachment as
any 9 year-old child would relate to his father. When [I] was having conversations with Kent,
Tristan came near where Kent was sitting; leaned on him with much fondness, put
his arms around Kent, and joined in conversations about the fun things they did
during a recent South Lake Tahoe trip.
They were seen to be very playful and friendly, with Kent very patient
with him . . . .â€
Pazhempallil continued to recommend that Tristan be placed with the de
facto parents. Tristan’s counsel
supported the Agency’s recommendation, noting that “[Tristan] has consistently
stated that he wants to live with the de facto parents.â€
At the
hearing, on July 28, 2011, Tristan’s court-appointed special advocate (CASA)
observed: “Tristan appears very
comfortable and happy and stable with Kent and [Deirdre]. I have had multiple conversations with both
of them about Tristan and their relationship.
That is not to say that he doesn’t express conflicted emotions regarding
his mother, he certainly does, and so I can’t go into too much with regard to his
particular opinion about where he wants to wind up permanently. But I will say that he appears comfortable
there with [Deirdre] and Kent and has for the last few months
. . . .†Commissioner
Lyons granted the Agency’s request to place Tristan with the de facto parents.
Writ Proceedings
As noted
the merits, mother’s writ petition (No. A132058) challenging the setting
of a section 366.26 hearing.
name="_ftnref7" title="">[7]
Section 366.26 Report
In advance
of the section 366.26 hearing, the Agency submitted a section 366.26
report recommending that parental rights be terminated and adoption approved as
the permanent plan. Pazhempallil wrote
that Tristan had no special educational, developmental, or health
concerns. He also concluded that Tristan
is “very adoptable†and that “adoption with [Deirdre] and Kent is in the best
interest and well-being of [Tristan].â€
Pazhempallil wrote: “[Deirdre]
has advanced training in counseling psychology.
She is knowledgeable about the developmental and emotional needs of all
children. She has extensive experience
working with children of all ages both as a school teacher and as a licensed
therapist. She has an excellent understanding
of children’s basic needs and special needs of children who have experienced
trauma and hardship in their lives. . . . [¶] . . .
[¶] [Deirdre] and Kent have become very attached to Tristan. They have given extensive consideration to
how becoming parents will completely and irreversibly affect their lives. They have actively prepared to become
parents, in general, and parents of Tristan, specifically. . . . They
are deeply committed to adopting Tristan and being caring, loving parents to
him for the rest of their lives. [¶] . . . [¶] Tristan is fully
aware of the permanent plan of adoption with [Deirdre] and Kent. He has reported that he likes being in the
[their] home . . . and on occasions asked [Deirdre] if she would
adopt him. When over-night visits
started Tristan looked forward to those visits with much enthusiasm and
excitement.â€
With
respect to Tristan’s relationship with mother, it was noted: “Tristan was raised mostly by his mother with
whom he has maintained [a] relationship through visits after reunification
services have been terminated. During
the time of reunification, [Tristan] and [mother] were offered therapeutic
visitation. When transitioning
therapeutic visits to supervised visits, in May 2011, Tristan asked for more
visits with [mother]. The undersigned
believes that Tristan was asking for more visits in reaction to the mother’s
urging to do so. After visits have been
reduced starting July, 2011 Tristan has not expressed any concern about
reducing the visits to once a month. [¶] . . . [¶] Considering Tristan’s
age and relationship with his mother, it is recommended that a plan for
supervised contact/visits between [Tristan] and [mother] be developed through
permanency planning mediation. The
Agency is recommending supervised visits for [mother], as agreed upon by all
parties, in the form of a postadoption contact agreement facilitated by
Consortium for Children. The Agency is
also recommending that supervised visits ordered by the court be terminated for
the mother.â€
title="">[8]
Bonding Study
Three weeks
before the scheduled section 366.26 hearing, mother filed a motion, pursuant to
Evidence Code section 730,
name="_ftnref9" title="">[9]
for appointment of an expert witness to conduct a bonding study and determine
whether it would be detrimental to Tristan to terminate parental rights. The Agency, minor’s counsel, and the de facto
parents opposed mother’s motion, on the grounds that it was untimely and
unnecessary. On August 31, 2011, Judge
Patrick Mahoney continued the section 366.26 hearing to October and denied the
motion for a bonding study, stating:
“[I]t does seem to me that the [In
re Richard C. (1998) 68 Cal.App.4th 1191, 1195 (Richard C.)] case is compelling in terms of addressing this issue.â€
CASA’s Report
Tristan’s
CASA submitted a report to the juvenile court recommending that the
de facto parents be appointed Tristan’s legal guardians. The CASA reported that Tristan appeared
“happy and engaged†with Deirdre and Kent.
He also noted that Tristan continued to visit with mother, who the CASA
had not spoken to, excepting intermittent meetings at court. “When asked about these visits [with mother],
Tristan’s behavior and responses modulate between reserved and extremely
closed.â€
Permanent Plan Hearing
The hearing
on selection of a permanent plan took place, on October 17, 2011, before Judge
Charlotte Woolard. At the beginning of
the contested hearing, mother’s counsel requested a ruling on whether the
supervising visitation therapist could testify.
Tristan’s counsel invoked the therapist-patient privilege and also
objected that any testimony the therapist had to present would be stale since
she had not seen Tristan and mother in five months. The court ruled as follows: “I’m not going to allow the testimony from
the therapist. I do find that the child
through the attorney has asserted the therapist-patient privilege, and I do
find the testimony would be remote in time.â€
Pazhempallil
testified as a child welfare expert on the Agency’s behalf. He stated that Tristan had been living with
the de facto parents since July 28, 2011.
He further testified that the de facto parents “very much want to adopt
Tristan†and that Tristan was adoptable.
He testified: “[T]he [de facto
parents] are more than willing to have [Tristan] remain connected with his ancestry
and his maternal electives [sic]. [¶]
. . . [¶] The fact about relationship between the mother and
Tristan, the agency has made a referral to the Consortium for Children for
permanency planning mediation, and the agency believes that those contacts
should remain within the framework of mediated contacts.†He reported that mother was visiting with
Tristan once a month and “it has been observed that the visits have been going
well.†However, Tristan found it
difficult to transition after visits and had a history of defiance and acting
out after visits. Tristan had not
requested more visits with mother since they had been reduced.
Pazhempallil
stated his belief that adoption by the de facto parents is in Tristan’s best
interest and that Tristan’s attachment to them is similar to a parental
bond. Tristan had progressed behaviorally
and academically in the de facto parent’s home.
Tristan knew that the Agency was recommending adoption, understood its
permanency, and told the de facto parents that he would like to be adopted.
On
cross-examination by Tristan’s counsel, Pazhempallil testified that, at the
last visit between mother and Tristan, minor’s counsel commented that he had
seen mother whispering into Tristan’s ear.
Pazhempallil recommended that mother’s visits be terminated. When asked by de facto parents’ counsel about
Tristan’s relationship with mother, Pazhempallil stated: “Tristan has bonded very well [with the de
facto parents] over the last two year time.
His relationship with the mother is being, having [been] raised by her,
there has been a lot of inconsistency in providing the care and protection and
so he is in a state of confusion.â€
Mother had not provided day-to-day care for Tristan in over two years
and Pazhempallil believed that their bond did not rise to the level of a
typical parental bond. Mother never had
unsupervised visits with Tristan.
On
cross-examination by mother’s counsel, Pazhempallil conceded that Tristan had
lived eight out of his 10 years, or about 80 percent of his life,
with mother as his primary caretaker.
Tristan knows her as “mommy.†Pazhempallil
testified that mother was somewhat inconsistent in visitation in the beginning
of the dependency case, but once she engaged in therapy she had visited
regularly with Tristan. Most recently,
she had only missed one visit, in August, because she reported being sick. Some of these visits took place in mother’s
home, where she made meals for Tristan and played with him. He testified that Tristan understood the
permanency of adoption. When asked if
Tristan understood he may never see his mother again, Pazhempallil
answered: “[T]he conduct and visits all
need to be determined as far as mediation, so I have no answer for that.†He testified that Tristan’s visits with mother
“[have] not been benefiting him in the way [they] should be.
[¶] . . . [¶] When Tristan is coming back from those visits
. . . to a state of more behavioral or emotional problems right after
the visits, those visits were not conducive, helping [his] well-being at
all.†He explained further: “[T]here [have] been several . . .
instances where mother would offer money or rewards to Tristan. So that was again causing a lot of emotional
anxiety in Tristan after those visits.â€
Pazhempallil did not believe it would be detrimental if Tristan never
saw his mother again.
Mother
testified, on her own behalf, that she and Tristan lived in Canada until he was
three and a half years old. They
returned to San Francisco to live with Tristan’s father, but mother eventually
obtained full custody. During the time
that mother was Tristan’s primary caregiver, she took him to school, cooked for
him, played with him, and put him to bed at night. After Tristan was removed from her custody,
she had regular supervised visits.
During those visits, mother provided food for Tristan, spoke with him
about his feelings, played with him, and held him. She testified regarding a visit after
reunification services were terminated:
“[Tristan] was very upset. I was
very angry. He was crying for the first
hour of our visit. I just held him and
he kept saying why. [The Agency] said
they were going to have me stay overnight in December, and now they are saying
that they want to not even let me see you anymore. And I told him I didn’t know, I was doing
everything I was supposed to do and I just didn’t know why things were
happening the way they were. I am doing
my best. And that, you know, they are
responsible for him and they make the decisions for him. And that he’s been taken from me because of
my drinking.†Mother said she has a bond
with Tristan, explaining: “Even though
we don’t spend as much time as I would like to be able to spend with my son,
when we are together, everything just—it’s like a puzzle piece. It’s just right. And it feels good and when I hold him and
talk to him, I just see his relief in his eyes, that he is happy to be with
me. And when we are together it’s just
so amazing. And when the visit comes to
an end, his whole demeanor changes. And
I just tell him be a strong boy and to listen and that everything is going to
be okay.â€
At the
conclusion of the evidence, the Agency, Tristan’s counsel, and counsel for the
de facto parents recommended that parental rights be terminated. No one opposed referral to the Consortium for
Children to determine if postadoption visitation with mother was in Tristan’s
best interests. In fact, the Agency
argued: “Yes, there is clear evidence
throughout this case history that Tristan has been in a state of confusion. And it is because of that confusion that
visits had to be gradually reduced and now to the point of being
terminated. However, Mr. Pazhempallil
did testify that a referral to the Consortium for Child[ren] would be
appropriate. . . . [T]he referral should be done because it is
important that we look at all the areas of Tristan’s life and that we look at
everyone that plays a role, and if it is in Tristan’s best interests to have
visitation with his biological mother once the Court goes forward and makes
this order, that can be determined by his adoptive parents, by the
professionals that are in the consortium, and along with [mother.]†Mother’s counsel argued that the beneficial
relationship exception to termination had been proved.
The
juvenile court concluded: “I don’t think the [beneficial relationship]
exception has been demonstrated, and I’m going to follow the recommendation of
the [Agency]. [¶] The Court has read and considered the assessment
prepared under . . . section 366.26, and has considered the
report and the recommendation of the social worker. The Court has considered the wishes of the
child consistent with the child’s age. . . . [¶] . . .
[¶] At this time supervised visits with mother . . . are
terminated.†The juvenile court, in its
written findings and orders, found that notice had been given as required by
law, found it likely that Tristan will be adopted, terminated mother’s and
father’s parental rights, and selected adoption as Tristan’s permanent plan.
“[v]isitation between [Tristan] and [mother] is detrimental to the child’s
physical or emotional well-being and is terminated.†Mother filed a timely notice of appeal,
indicating that she appealed from the order terminating parental rights.
On appeal,
mother does not challenge the juvenile court’s finding that it is likely
Tristan will be adopted, within the meaning of section 366.26,
subdivision (c)(1). Instead, she
argues: (1) the order terminating
parental rights must be reversed because the beneficial relationship exception
is applicable; (2) the juvenile court abused its discretion in denying her
request for a bonding study; (3) the juvenile court failed to consider
Tristan’s wishes; and (4) the juvenile court’s written findings and orders
contained a mistaken finding that visitation with Mother is detrimental. Only the final argument has merit.
A. Beneficial Relationship
Exception
First, mother asserts the juvenile court erred when
it determined the beneficial relationship exception, under section 366.26,
subdivision (c)(1)(B)(i), did not apply to preclude termination of
parental rights.
“Adoption, where possible, is the permanent plan
preferred by the Legislature.
[Citation.]†(
567, 573 (Autumn H.).) “[I]n order to terminate
parental rights, the court need only make two findings: (1) that there is clear and convincing
evidence that the minor will be adopted; and (2) that there has been a
previous determination that reunification services shall be terminated. . . .
‘[T]he critical decision regarding parental rights will be made at the
dispositional or review hearing, that is, that the minor cannot be returned
home and that reunification efforts should not be pursued. In such cases, the decision to terminate
parental rights will be relatively automatic if the minor is going to be
adopted.’ [Citation.]†(Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 249–250; accord,
§ 366.26, subd. (c).)
Thus, at a
section 366.26 hearing, “[a] finding . . . under
Section 366.21 or 366.22, that the court has continued to remove the child
from the custody of the parent . . . and has terminated reunification
services, shall constitute a sufficient basis for termination of parental
rights. Under these circumstances, the
court shall terminate parental rights unless . . . : [¶]
. . . [¶] (B) The court finds a compelling reason for
determining that termination would be detrimental to the child due to one or
more of the following circumstances: [¶] (i) The parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship. [¶] (ii) A child 12 years
of age or older objects to termination of parental rights.†(§ 366.26,
subds. (c)(1)(B)(i)–(ii).) “[T]he
burden is on the party seeking to establish the existence of one of the
section 366.26, subdivision (c)(1) exceptions to produce that
evidence. [Citation.]†(In re
Megan S. (2002) 104 Cal.App.4th 247, 252.)
“Because a parent’s claim to such an exception is evaluated in light of
the Legislature’s preference for adoption, it is only in exceptional
circumstances that a court will choose a permanent plan other than
adoption.†(In re Scott B. (2010) 188 Cal.App.4th 452, 469; accord
53.)
Appellate
courts have routinely applied the substantial evidence rule when reviewing a
juvenile court’s determination that an exception to termination did not
apply. (See In re B.D. (2008) 159 Cal.App.4th 1218, 1235; In re Dakota H. (2005) 132 Cal.App.4th 212, 228;
101 Cal.App.4th 942, 947; Autumn H.,
supra, 27 Cal.App.4th at pp. 576–577.)
However, Division Three of this court has held that abuse of discretion
is the proper standard. (
78 Cal.App.4th 1339, 1351 (Jasmine
D.).)
A third
standard of review was recently articulated by the Sixth District, in
1517 (I.W.) and In re Bailey J. (2010) 189 Cal.App.4th 1308, and adopted by the
Second District in In re K.P. (2012)
203 Cal.App.4th 614, 622. The court
undertakes a two prong analysis in determining the application of the
beneficial relationship exception. The
first prong is whether the parent has maintained regular visitation and contact
with the child. The second is whether a
sufficiently strong bond exists between the two, such that the child would
suffer substantial detriment from its termination. (In re
Aaliyah R. (2006) 136 Cal.App.4th 437, 449–450.) The Sixth District has said that the first
determination is, because of its factual nature, properly reviewed for substantial
evidence. (In re Bailey J., at p. 1314.) But, the second prong analysis “is based
on the facts but is not primarily a factual issue. It is, instead, a ‘quintessentially’
discretionary decision, which calls for the juvenile court to determine the importance
of the relationship in terms of the detrimental impact that its severance can
be expected to have on the child and to weigh that against the benefit to the
child of adoption. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review
applies.†(Id. at p. 1315.) We
believe the result would be the same in this case under an abuse of discretion
standard, a substantial evidence standard, or the standard articulated in
differences between the standards are “not significant,†as all three give
deference to the juvenile court’s judgment.
(See Jasmine D., supra, 78 Cal.App.4th
at p. 1351.)
Despite mother’s spotty track record in the
beginning of this dependency case, we will assume that mother maintained
regular visitation and contact with Tristan and that, therefore, the first
prong of section 366.26, subdivision (c)(1)(B)(i), has been met. Nonetheless, we conclude that the juvenile
court did not abuse its discretion, or make a finding unsupported by
substantial evidence, in determining the exception inapplicable. Tristan did not have a parental relationship
with mother that necessitated preservation at the expense of depriving him of
the permanency of adoption.
“Under
section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be terminated
where the juvenile court ‘finds a compelling reason for determining that
termination would be detrimental to the child’ because ‘[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.’
The exception does not require proof the child has a ‘primary
attachment’ to a parent or the parent has ‘maintained day-to-day contact’ with the
child. [Citation.] [¶] The
exception’s second prong requiring that ‘the child would benefit from
continuing the [parent-child] relationship’ means that ‘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.’ [Citation.] The juvenile 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.’ [Citation.]
‘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.’
[Citation.] [¶] ‘The exception must be examined on a case-by-case
basis, taking into account the many variables which 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.’
[Citation.]†(
pp. 123–124 [relying on, inter alia, Autumn
H., supra, 27 Cal.App.4th at pp. 575–576].)
“While the
exact nature of the kind of parent/child relationship which must exist to
trigger the application of the statutory exception to terminating parental
rights is not defined in the statute, the relationship must be such that the
child would suffer detriment from its termination. [Citation.]â€
(In re Angel B. (2002) 97
Cal.App.4th 454, 467.) “Interaction
between natural parent and child will always confer some incidental benefit to
the child. The significant attachment
from child to parent results from the adult’s attention to the child’s needs
for physical care, nourishment, comfort, affection and stimulation. [Citation.]
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The exception applies only where the court
finds regular visits and contact have continued or developed a significant,
positive, emotional attachment from child to parent.†(Autumn
H., supra, 27 Cal.App.4th at p. 575.)
“[T]he Autumn H. language,
while setting the hurdle high, does not set an impossible standard nor mandate
day-to-day contact. . . . A strong and beneficial parent-child
relationship might exist such that termination of parental rights would be
detrimental to the child, particularly in the case of an older child, despite a
lack of day-to-day contact and interaction.â€
(In re Casey D. (1999) 70
Cal.App.4th 38, 51.) The exception
“appl[ies] to situations where a dependent child benefits from a continuing
parental relationship; not one, . . . when a parent has [loving and]
frequent contact with but does not stand in a parental role to the child.†(In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) “The . . . negative effect of interaction
may be shown by such things as, despite regular visitation by the parent, the
fact that a child repeatedly expresses that he or she does not want to visit
the parent [citation], and unhappiness and acting out by the child related to
parental visits. [Citation.]†(In re
Angel B., supra, 97 Cal.App.4th at p. 467, fn. 4.)
In arguing
that the Autumn H. factors weigh in
favor of finding application of the beneficial relationship exception, mother
relies heavily on the fact that Tristan spent approximately eight of his
10 years in mother’s care. But,
mother fails to acknowledge that, during that time, she abused alcohol,
suffered from untreated mental illness, was the subject of repeated referrals
for physical abuse and neglect, and shifted much of her parental responsibility
to Tristan. And, it has been over two
years since Tristan lived with mother.
It is also true that Tristan’s CASA recommended guardianship as the
permanent plan. However, we find the
recommendation to be of little assistance, as it does not explain why the
preferred plan of adoption was rejected.
The CASA noted only that Tristan continued to visit with mother, he had
not observed them together, and that “[w]hen asked about these visits, Tristan’s
behavior and responses modulate between reserved and extremely closed.â€
There is
evidence in the record of a positive attachment between Tristan and
mother. Mother cooked for and played
with Tristan during visits, Tristan calls her “mommy,†and Tristan exhibited
some anxiety about the prospect of adoption that mother was able to
soothe. But, after visits were most
recently reduced, Tristan did not express any concern or request more
visits. There was also evidence that
Tristan experienced behavioral problems after visits. One could reasonably infer Tristan’s
behavioral problems were due to mother’s continued manipulative behavior. And, although we recognize that Tristan has a
special need to stay connected to his tribal culture, there is no evidence that
mother is the only one who can meet this special need. In fact, mother had not attempted to maintain
any contact between Tristan and her family after his toddler years.
On the
other hand, the de facto parents had provided Tristan with consistency,
affection, and responsiveness to his emotional needs. Tristan had progressed behaviorally and
academically in their care. We fail to
see how Tristan’s relationship with mother necessarily outweighs the stability
and permanence he has found with the de facto parents, especially when mother
never advanced to unsupervised visitation with Tristan and her visits were
reduced because of their disruptive nature.
(See In re Casey D., supra, 70
Cal.App.4th at p. 51 [the necessary showing “will be difficult to make in
the situation . . . where the parents have essentially never had
custody of the child nor advanced beyond supervised visitationâ€].)
Mother
relies on In re S.B. (2008) 164
Cal.App.4th 289 (S.B.), in which an
order terminating parental rights was reversed because the juvenile court erroneously
determined that the beneficial relationship exception did not apply. In S.B.,
the Agency reported the father had
“ ‘complied with every aspect of his case plan,’ including
maintaining his sobriety and consistently visiting S.B.†(Id.
at p. 293.) Nonetheless, the
father’s reunification services were terminated beca
| Description | The juvenile court terminated the parental rights of Gloria F. (mother) and John M. (father) with respect to their son, Tristan. (Welf. & Inst. Code, § 366.26.)[1] Mother appeals, arguing that: (1) the order terminating parental rights must be reversed because the beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) is applicable; (2) the juvenile court abused its discretion in denying her request for a bonding study; (3) the juvenile court failed to consider Tristan’s wishes; and (4) the juvenile court’s written findings and orders contained a mistaken finding that visitation with Mother is detrimental. We affirm. |
| Rating |
