In re Marcus S.
Filed 1/23/14 In re Marcus
S. CA2/7
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MARCUS S.,
et al., Persons Coming Under the Juvenile Court Law.
B249893
(Los
Angeles County
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
TIERRA M.,
Defendant and Appellant.
Super. Ct. No. CK76222)
APPEAL from an
order of the Superior Court of Los Angeles
County, Robert S. Draper, Judge.
Affirmed.
M. Elizabeth
Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, County Counsel, James M.
Owens, Assistant County Counsel, and William D Thetford, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Tierra M.’s two children,
Marcus S. and T.S., were declared dependents of the court pursuant to Welfare
and Institutions Code section 300, subdivision (b).
adoption as the children’s permanent plan.
Tierra M. appeals the order, arguing that the court erred by failing to
apply the beneficial parental relationship exception to adoption set forth in
section 366.26, subdivision (c)(1)(B)(i).
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Referral
and Detention
Events preceding the filing of the section 300
petition
Tierra
M. (mother) and M.S. (father) are the parents of two children: Marcus S., born in May of 2007, and T.S., born
in March of 2008. Shortly after T.S. was
born, the Los Angeles County Department of Children
and Family Services (DFCS) received a referral alleging “general neglectâ€
by mother. The caller reported mother
had tested positive for marijuana immediately after giving birth to T.S.
During
an interview regarding the referral, mother told DCFS she had stopped smoking
marijuana when she discovered she was pregnant with T.S. Mother admitted, however, that she had taken a
“charge†of marijuana–which she described as “when someone blows smoke into
another person’s mouthâ€â€“one week before T.S. was born. Mother also
admitted that, prior to her pregnancy, she smoked marijuana whenever she “came
across it.†Father informed DCFS he had been
smoking marijuana since the age of 16, but did not believe he was dependent on
the drug. Father stated that he had never
smoked marijuana in the presence of his children and would “quit smoking today
if it meant him keeping [them].â€
Mother
and father agreed to participate in voluntary family maintenance services that included
substance abuse treatment, random
terminated from her substance abuse program for “non-complianceâ€; father was terminated
from his substance abuse program one month later. Between May and August of 2008, mother failed
to report for six drug tests and tested positive for marijuana twice; during
the same time period, father failed to report for five drug tests and tested positive
for marijuana three times.
In
August of 2008, DCFS scheduled a child safety conference to address the
parents’ failure to comply with their voluntary case plan. Father did not attend the meeting; mother
agreed to voluntary placement of the children and reaffirmed her commitment to follow
the case plan. Following the safety
conference, mother enrolled in a new substance abuse program, but tested
positive for marijuana in September and December.
In
November of 2008, mother was hospitalized “because she attempted to commit
suicide by putting a knife through her neck.â€
According to medical staff, mother stated that she wanted to shoot
herself and appeared to be suffering from borderline personality disorder. During an interview at the hospital, mother
told DCFS she was depressed because her children had been taken away and
because she had been arguing with father.
DCFS’s section 300 petition
On
February 10,
2009, DCFS filed a petition alleging that Marcus
S., then one year and ten months old, and his female sibling T.S., then one year
old, came within the jurisdiction of the juvenile court pursuant to section
300, subdivision (b). The petition listed
three allegations under subdivision (b): (1) mother’s marijuana abuse
interfered with her ability to care for her children and placed them at
substantial risk of harm; (2) father’s marijuana abuse interfered with his
ability to care for the children and placed them at substantial risk of harm;
and (3) mother suffered from mental and emotional problems that interfered with
her ability to care for the children and placed them at substantial risk of
harm.
In support of the
petition, DCFS filed a report summarizing its investigation of the initial
referral and the parents’ subsequent failure to comply with their voluntary case
plan. DCFS asserted that although it had
provided the parents with voluntary services that were intended “to eliminate
the need for the children’s removal from the home,†the services had “not
[been] effective.†DCFS further asserted
that the children faced a “very high risk†of harm if left in the parents’
custody.
At the detention hearing, the court ruled DCFS
had provided prima facie evidence that both children were persons described in section
300, subdivision (b) and that there were no reasonable means to protect them
without removal. The court set the
matter for a contested jurisdictional and dispositional hearing on March 18, 2009.
Jurisdictional
and Dispositional Orders
On March 6, 2009, DCFS filed a “Jurisdiction/Disposition
Report.†On March 3, 2009, father informed DCFS he had used marijuana for the
“last five years to help with . . . [chronic] headaches†that began after
he was shot in the head during a drive-by shooting. Father also told DCFS he knew mother had
smoked marijuana while pregnant with T.S.
Father reported that mother
began living with him at his parents’ house when she was 16 years old. In 2008, father and mother were “kicked . . .
out of [the] house†and began living “from motel to motel.†Father stated that although he was currently
living with mother in a one bedroom apartment, their unstable living situation
made it difficult to “attend . . . drug treatment classes and submit to random
drug testing.†Father reported that he
had never been employed, but received approximately $900 a month in
“Supplemental Security Income.â€
Father also told DCFS that,
in November of 2008, he had transported mother to a hospital after she “tried to
cut her wrist.†According to father,
mother had remained hospitalized for one week and was diagnosed with depression
and borderline personality disorder.
Although mother was given medications while in the hospital, she was
unable to refill her prescriptions.
Father stated that, since stopping the medications, mother had been
“okay†and “had [made] no threats of suicide or homicide.â€
Mother informed DCFS she had
been residing with father in various different motels, which made it difficult
to attend her substance abuse program or appear for her drug tests. Mother stated that she had started smoking
marijuana “on and off†when she was 12 or 13 years old, but eventually “stopped
[taking the drug] on her own.†She began
smoking marijuana again eight days before T.S. was born, and then quit several
months later. Mother was aware father
smoked marijuana, but was not sure how frequently he used the drug or when he
began to use it.
When asked about her hospitalization,
mother stated that she had attempted “suicide by trying to cut [her]
wrists.†Mother said she attempted
suicide because she was depressed about having her children taken away and
being in the “system all [her] life.†Mother
stated that hospital personnel had diagnosed her with depression and borderline
personality disorder. Following her
release from the hospital, mother started seeing a physician at the Long Beach Mental Health Center.
The report stated that Marcus
S. and T.S. had recently been placed with a new foster parent, Jacqueline
Perkins. According to DCFS, the children
appeared to be developing at an age appropriate level and adjusting well to their
new placement. Perkins informed DCFS that
the parents had visited the children at a McDonalds in early March and “acted
appropriately†throughout the visit.
In its assessment and
evaluation, DCFS recommended that, based on the parents’ ongoing substance abuse
issues and mother’s failure to adequately address her mental health problems,
the court should: (1) declare the children dependents of the court; (2)
maintain the children’s placement with Perkins; and (3) provide reunification
services to both parents.
The court sustained
the petition, declared the children dependents and approved a disposition plan that
required both parents to attend drug rehabilitation with random drug testing
and required mother to attend individual counseling. The court also provided both parents with monitored
visitation. A six-month review hearing
was scheduled for September 15,
2009. (See § 366.21, subd.
(e).)
Interim Status
Hearings
Section
366.21, subdivision (e) six-month review hearing
On
September 14,
2009, DCFS provided a status report for the
six-month review hearing. (See § 366.21,
subd. (e).) Perkins informed DCFS that mother
had maintained a regular visitation schedule with the children throughout the
six-month review period. Perkins
normally brought the children to mother’s home for two unmonitored visits per
week, with each visit lasting up to four hours.
Mother also called Perkins regularly to check on the children’s
well-being. Perkins believed mother
spent “quality time†with the children, who were “very happy during her
visits.†Mother told DCFS the visits had
“gone well†and that she was “happy to be bonding with her children.†Despite the apparent success of the visits, DCFS
had elected not to permit overnight visits because mother had failed to enroll
in mental health counseling.
Perkins
told DCFS that both children were in “good health,†had showed substantial
“developmental progress†and remained “active and playful with other foster
children in her home.†DCFS believed the
children were continuing to “adjust[] well in their current placement†and that
Perkins had provided them a “stable home environment.â€
DCFS
also reported on the parents’ efforts to comply with their court-ordered
services. Between January and April of
2009, mother had completed four months of substance abuse counseling and provided
10 negative drug tests. Over the next
four months, however, she had failed to appear for eight drug tests and had
provided a positive test for alcohol. Mother
also failed to comply with her mental health counseling obligations. In June of 2009, mother told her therapist
she “did not feel the need to attend court order counseling [sic]†and repeatedly
failed to return DCFS’s messages regarding her counseling requirements. When mother finally contacted DCFS in
September of 2009, she stated that she had not enrolled in counseling because
she had been searching for employment.
Mother also said she had been unable to remain in contact with DCFS because
she did not have a telephone and had recently been evicted from her apartment.
Father
had enrolled in a drug treatment program in April of 2009, but was terminated
for non-attendance. He had tested
positive for marijuana in February, March and April of 2008, and had missed
tests in March, June, July and September.
According to DCFS, father appeared to be “unmotivated in . . . .
attending a substance abuse treatment program, or submitting to drug testing as
ordered by the court.â€
In
its assessment and evaluation, DCFS stated that while mother’s “unmonitored
visits with her children ha[d] gone well,†she “continue[d] to minimize the
seriousness of her [mental] condition.†Father,
on the other hand, had failed to comply with his drug rehabilitation
requirements and had not provided a drug test in several months.
In
October of 2009, DCFS filed a supplemental report stating that mother had started
to attend individual counseling and was not experiencing any suicidal thoughts
or depression. Therapist Iris Leary
recommended that mother attend weekly sessions to address “anxiety, depression
and lack of coping skills.†Leary stated
that although mother had been cooperative during her counseling sessions, she
had not attended a session in the last three weeks. Leary believed these absences were caused, in
part, by mother’s “housing situation.†When
DCFS asked mother why she stopped attending the counseling sessions, she stated
“there was no reason†and that she “just ha[dn]’t been going.’†Mother also failed to appear for a drug test
on October 8,
2009.
She had continued, however, to have unmonitored visits with her children
twice a week.
At
the six-month review hearing, the court ordered DCFS to allow mother overnight,
unmonitored visits as soon as she completed two additional individual
counseling sessions and provided one additional clean drug test. The court left all other orders in place and
set the 12-month permanency hearing date for March 16, 2010.
(See § 366.21, subd. (f).)
Section 366.21, subdivision (f) 12-month permanency hearing
On March 16, 2010, DCFS provided a status review report for the 12-month permanency
hearing. (See § 366.21, subd. (f).) The report indicated mother had continued to
have unmonitored visits with her children twice a week and “maintain[ed] phone
calls regularly with [the caretaker] to check for the children’s well
being.†Perkins told DCFS the children
were “always happy to go with mother†and that she believed the children were
safe in mother’s care. Father, however,
had stopped visiting the children. DCFS
reported father was also not in compliance with his case plan and had stopped
communicating with the Department.
Mother told DCFS
she looked forward to seeing her children at every visit and described them as
her “joy.†Although mother felt “blessed
to [Perkins],†she did not want her children to be adopted. Mother stated that “reunifying [was] essential
to her†and that she would “try her best†to regain custody of both children. When DCFS raised the possibility of
unmonitored overnight visits, mother stated she did not have a permanent
residence and was currently “sleep[ing] in different places.†DCFS reported it had elected not to
“liberalize[] to overnight weekend visits†based, in part, on mother’s on-going
failure to appear at her scheduled drug tests.
According to
DCFS, the children exhibited a strong attachment toward Perkins and were
developing appropriately. Marcus S.,
then almost three years old, was able to feed himself, clothe himself and
“understand[] most sentences.†T.S.,
then about two years old, was able to walk with good balance and communicate
her needs.
At the 12-month
review hearing, the court terminated reunification services as to father, ordered
continued reunification services for mother and set the matter for an 18-month
permanency review hearing.
Section 366.22 18-month permanency review hearing
On
August 9, 2010, DCFS submitted a status report for the 18-month permanency hearing. (See §§ 366.21, subd. (g); 366.22.) DCFS reported that it had lost contact with
mother and was unsure of her current whereabouts. Perkins informed the Department that mother
was not visiting or calling the children as frequently as she had in the
past. According to Perkins, mother had
not spoken to or visited the children in over a month. The children, however, continued to thrive
and develop at an age appropriate level.
DCFS believed that Perkins was “stimulat[ing] them educationally†and meeting
all of their needs.
In an interim
report filed on October 7, 2010, DCFS stated
that mother had not contacted the Department in two months and had not provided
a current address or phone number. Perkins,
however, reported that mother had begun visiting the children again. The children continued to “thrive†in
Perkins’s care.
In another
interim report filed on December 15, 2010, DCFS stated that
mother had still not contacted the Department, nor had she provided any updated
contact information. Perkins reported
that mother continued to visit the children during the weekends and that the
children seemed to enjoy their visits.
DCFS recommended that, in light of mother’s failure to maintain
contact with the Department, the court should terminate her reunification
services and leave the children in the custody of Perkins. After holding a hearing (which mother failed
to attend), the court terminated mother’s reunification services and scheduled a
section 366.26 permanency plan hearing.
Section 366.26 Permanency
Plan Hearings
On
April 13, 2011, DCFS submitted a section 366.26 report stating that the children
were “continuing to thrive†in Perkins’s care.
Perkins told DCFS that, despite the termination of her reunification
services, mother had increased her visits.
Perkins explained that mother and father had joined Perkins’s church in
February of 2011 and were visiting with the children after church services. Perkins was “joyous of the parents’ efforts to
maintain a relationship†with their children and had noticed a significant
change in their motivation. Perkins told
DCFS she was interested in serving as the children’s legal guardian and wanted
the parents to have an opportunity to reunify at a later date. Perkins said she did not want to adopt the
children because she was worried that she would become “overwhelmed.â€
In
a supplemental report filed in June of 2011, Perkins stated that mother still did
not have a “stable place for the children to visit her, so mother continues to
see the children at church.†During their
visits, the children spent several hours “play[ing]†with their mother. Perkins stated that she had no concerns about
leaving the children with mother and that they were always “very happy to go
with [her].†As with all prior reports,
DCFS indicated that the children continued to thrive in Perkins’s care.
In
February of 2012, DCFS filed a report recommending that the court permanently
place the children with Perkins, who had agreed to adopt them. DCFS stated that the children were happy in
their current placement and had developed a “good relationship with each other
and their caregiver.†Perkins continued
to meet all of the children’s needs and informed DCFS that “caring for the
children ha[d] been a joy.â€
DCFS also reported that, in the last month and a half, mother had
only visited the children twice. Perkins
stated that the visits had occurred at church, where mother played with the
children. In a report filed in June of
2012, however, DCFS reported mother had resumed visiting the children twice a
week after church. Mother normally took
the children to a nearby park, played with them and braided their hair.
Mother’s section
388 petition and permanency planning
Section 388 petition and DCFS response
In
October of 2012, mother filed a section 388 petition requesting that the court terminate
jurisdiction over the children and return them to her care, or, alternatively, renew
her reunification services. In support
of her request, mother presented evidence she had completed a substance abuse program
and had addressed her depression through therapy. Mother acknowledged, however, that her
housing situation had not improved.
DCFS
recommended that the court deny the section 388 petition. DCFS reported that Marcus S., then
four-and-a-half years old, had told a DCFS social worker that he did not want
to live with his mother and preferred to continue living with Perkins. T.S., then three-and-a-half years old, stated
that although she enjoyed visiting with her mother, she wanted to continue
living with Perkins because she was “nice†and took good care of T.S. and her
brother.
DCFS
reported that when the children were asked why they enjoyed their visits with
mother, they both stated that she bought them things. Perkins told DCFS she did not have any
problem with the mother visiting the children, but did not believe mother was
ready to care for them. DCFS also noted
that mother had not contacted the Department for almost two years.
In May of 2013, mother withdrew her section
388 petition and the court proceeded with a contested section 366.26 permanency
plan hearing.
The contested section 366.26 permanency plan hearing
At
the section 366.26 permanency plan hearing, mother told the court she thought
it would be “insane to take [the children] out of [Perkins’] household,†but
asserted that she did not want to give up her parental rights. Mother explained that although her financial
condition had made it difficult to find stable housing, she intended to get “on
[her] feet†and find “a place to stay.â€
Perkins
testified that Marcus S. and T.S. had been in her care for approximately
four-and-a-half years and that she wanted to adopt them. Perkins stated that mother had been visiting
the children every Sunday after church service for two to four hours; the
visits normally occurred inside the church or at a nearby restaurant. The number and duration of the visits had
remained consistent over the last six months.
In addition to the visits, mother spoke with the children on the phone
three times a week. Perkins believed that
the children had a “very close†relationship with their mother; they both
called her “mommy†and frequently gave her hugs and kisses. Perkins also testified that the children respected
their mother and complied with her directives.
When asked why
she wanted to adopt the children, Perkins stated that she had been caring for
the children for a significant period of time and felt that she “was a mother
figure to them.†She further stated,
however, that she did not believe it would be in their best interests to
terminate mother’s parental rights.
Perkins explained she had gone “back and forth†on the question of
adoption because she had been “pressured†by all the “different attorneys.†When asked to clarify her comments, Perkins said
she had felt pressure two years earlier after an “adoption worker†told her the
children would be removed from her home and placed elsewhere if she refused to
adopt them. Perkins explained that those
statements had “scared†her “because [she and the children] have a bond.†Perkins further stated that mother “was still
a part of their life, and because [mother] was going through so much at the
time . . . [Perkins had] just wanted to provide love and care to the kids and a
home for the kids . . . .†Perkins also testified
that, following the adoption, she intended to allow mother to continue visiting
the children and wanted mother to have the opportunity to regain custody of her
children.
Although
Marcus S. was called to testify at the hearing, the parties and the court
agreed he was not qualified to do so. The
court, however, permitted the attorneys to ask him a limited number of questions.
When Marcus S. was asked whether he
wanted Perkins to be his mommy, he shook his head to the right and left; when
asked whether he wanted his “mommy to stay his mommy,†he said “yes.â€
DCFS
argued that adoption by Perkins was the appropriate permanent plan, and that mother
had failed to establish the beneficial parental relationship because “the[]
children ha[d] been with Perkins their whole life.†DCFS also contended the evidence showed Perkins
had “provided a caring and loving home for them and . . . would like to
continue that.â€
Mother, however,
argued that she had established the beneficial parental relationship
exception. In support, mother relied on Perkins’s
statement that she did not believe termination of mother’s parental rights was
in the best interests of the children. According
to mother, Perkins had also made clear that legal guardianship would be in the
best interests of the children because it would enable mother to “get back on
her feet.â€
On
May 13, 2013, the court ruled that DCFS had presented clear and convincing
evidence that the children were likely to be adopted by Perkins. The court noted that the “only statutory
exception [to adoption] asserted by Mother†was the beneficial parental
relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). The court found, however, that mother had failed
to demonstrate the exception applied: “Here
the evidence establishes and the Court finds that there will be no
interference, substantial or otherwise, with the relationship between Mother
and the Children. Mother initially
sporadically and then more frequently has visited with the Children on Sundays,
with Perkins amicably arranging and participating in those visits. The court finds based on Perkins’ testimony
that these visits will continue uninterrupted after adoption is finalized. In any event, the Court finds, having observed
the children, Mother and Perkins, that the best interests of the children in
finding permanency in their lives through adoption clearly outweighs any
interest Mother might have in restricting that permanency by a plan of legal
guardianship and that there would be no benefit to the children by adopting a
plan of legal guardianship rather than adoption.â€
The mother appealed the trial
court’s order terminating her parental rights and selecting adoption as the
permanent plan.
DISCUSSION
The sole issue raised in this appeal is whether the trial court
erred in ruling that mother failed to establish the beneficial parental
relationship exception. (See § 366.26,
subd. (c)(1)(B)(i).)
Summary of
Relevant Law and Standard of Review
“‘Once
reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability.’
[Citation.] ‘A section 366.26
hearing . . . is a hearing specifically designed to select and implement a
permanent plan for the child.’ [Citation.] It is designed to protect children’s
‘compelling rights . . . to have a placement that is stable, permanent, and
that allows the caretaker to make a full emotional commitment to the child.’ [Citation.]â€
(In re Celine R. (2003) 31
Cal.4th 45, 52-53 (Celine R.).)
At the section
366.26 stage of a dependency proceeding, adoption is the preferred choice. (Celine
R., supra, 31 Cal.4th at p. 49; § 366.26, subds. (b) & (c).) “If it is likely the child will be adopted,
the court must choose that option – and as a result terminate the natural
parents’ parental right – unless it ‘finds a compelling reason for determining
that termination would be detrimental to the child due to one or more’ of
[several] specified [statutory] circumstances.’ [Citation.]â€
(Celine R., supra, 31 Cal.4th
at p. 49; § 366.26, subd. (c)(1)(B).) These
“specified statutory circumstances – actually, exceptions to the general rule
that the court must choose adoption where possible – ‘must be considered in
view of the legislative preference for adoption when reunification efforts have
failed.’ [Citation.].†(
Section 366.26,
subdivision (c)(1)(B)(i) provides an exception to the adoption preference when
the court finds that “[t]he parents . . . have maintained regular visitation
and contact with the child and the child would benefit from continuing the
relationship.†“The ‘benefit’ prong of
the exception requires the parent to . . . ‘show that they occupy “a parental
role†in the child’s life.’ [Citations.] The relationship that gives rise to this
exception to the statutory preference for adoption ‘characteristically aris[es]
from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’ [Citation].
Moreover, ‘[b]ecause a section 366.26 hearing occurs only after the
court has repeatedly found the parent unable to meet the child’s needs, it is
only in an extraordinary case that preservation of the parent’s rights will
prevail over the Legislature’s preference for adoptive placement.â€â€ (In re
K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).)
After
a court has rejected a parent’s effort to establish the exception, two
different standards of review apply on appeal.
(See K.P., supra, 203
Cal.App.4th at pp. 621-622; In
1308, 1314 (Bailey J.).) Since the parent must first show the
existence of a beneficial parental relationship, which is a factual issue, we
uphold a court’s express or implied finding that there is no beneficial
parental relationship if supported by substantial evidence. (See K.P.,
supra, 203 Cal.App.4th at p. 621.; Bailey
J., supra, 189 Cal.App.4th at p. 1314.) “[A] challenge to
a juvenile court’s finding that there is no beneficial relationship amounts to
a contention that the ‘undisputed
facts lead to only one conclusion.’†[Citation.]
(
1314.) Thus, “[u]nless the undisputed
facts established the existence of a beneficial parental or sibling
relationship, a substantial evidence challenge to this component of the
juvenile court’s determination cannot succeed.â€
(Ibid.)
The second requirement for the exception is that the beneficial
parental relationship constitute a “compelling reason for determining that
termination would be detrimental.†(§
366.26, subd. (c)(1)(B); K.P., supra,
203 Cal.App.4th at p. 622.) Although
grounded in the facts, the court’s determination on this issue is 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.†(Bailey
J., supra, 189 Cal.App.4th at p. 1315; K.P.,
supra, 203 Cal.App.4th at p. 622.)
The Court Did
Not Abuse its Discretion in Finding That the Benefits of Adoption Outweighed Any
Detrimental Impacts that Might Result from Severance of the Parental
Relationship
The trial
court’s order does not indicate whether mother established the existence of a
beneficial parental relationship.
mother successfully demonstrated a parental relationship and consider only
whether the court abused its discretion in concluding the relationship was
“qualitatively insufficient to constitute a compelling reason for determining
that termination of [her] parental rights would be detrimental to [the
children].†(K.P.,
supra, 203 Cal.App.4th at p. 622; see also Bailey J., supra, 189 Cal.App.4th at pp. 1316-1317.) In making this determination, the court was
required to weigh the detrimental impact the children would suffer from
severing the parental relationship against the benefits they would enjoy
through their adoption. (
[exception applies only if “the benefits of continuing the parental
relationship outweighed the benefits of permanent placementâ€].)
Numerous factors
support the court’s decision to terminate mother’s parental rights. First, both children were removed from mother
at a very young age and remained in Perkins’s care for a substantial portion of
their lives. (See In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.) [when assessing the parental relationship exception,
courts may consider “the age of the child†and “the portion of the child’s life
spent in the parent’s custodyâ€]; K.P.,
supra, 203 Cal.App.4th at p. 622 [denial of exception supported, in part,
by young age of defendant at time of removal].)
Marcus S. was only 15 months old when he was removed from mother’s
custody; T.S. was only five months old. Prior
to the termination of mother’s parental rights, the children had been in
Perkins’s care for more than four years.
Thus, Marcus. S. had spent almost 80 percent of his life outside of mother’s
custody, while T.S. had spent almost 90 percent of her life outside mother’s
custody.
Second,
during the four year detention period, mother did not maintain day-to-day
interactions with her children. (See
“not necessarily required†to establish the exception, “‘[d]ay-to-day contact
is . . . typicalâ€].) Mother generally
visited the children once or twice per week.
At times, however, her visits were more sporadic. During a two month period in 2010, she did
not have any visits with the children; during a six week period in early 2012,
she only visited the children twice. Moreover,
her visits never progressed to overnight status.
Third, although
the record indicates mother shared a positive relationship with her children,
there is no evidence that it “transcend[ed] the kind of relationship the
child[ren] would enjoy with another relative or family friend.†(In re
Jeremy S. (2001) 89 Cal.App.4th 514, 523 [to establish the exception, “the
child’s relationship must transcend the kind of relationship the child would
enjoy with another relative or family friendâ€] [disapproved on other grounds in
In re Zeth S. (2003) 31 Cal.4th 396,
413].) During her visits, mother played
with the children, bought them food and braided their hair; the children gave
mother hugs and kisses, called her “mommy†and listened to her directives. However, the mere fact that mother
“maintained a relationship that may [have] benefit[ted] the child[ren] to some
degree†(In re Aaliyah R. (2006) 136
Cal.App.4th 437, 449) is “simply not enough to outweigh the sense of security
and belonging an adoptive home would provide.â€
(In re Helen W. (2007) 150
Cal.App.4th 71, 81 [evidence that mother “loved her children . . .[], she fed
and changed them during visits, and sometimes they would call her ‘Mom[]’ . . .
[was] simply not enough to outweigh the sense of security and belonging an
adoptive home would provideâ€].) The
record makes clear that, for the significant majority of the children’s lives, Perkins
has served as the children’s “de facto parent, and she is the person who has
provided for [their] ‘physical care, nourishment, comfort, affection and
stimulation.’ [Citation.]†(Bailey,
supra, 189 Cal.App.4th at p. 1316.)
Fourth,
mother has pointed to no evidence indicating that the child “has any particular
needs that can be met by [m]other but not by the [adoptive parents].†(Angel B.,
supra, 97 Cal.App.4th at p. 467
[mother’s failure to identify any needs that could not be met by adoptive
parents supported juvenile court’s finding that the parental relationship
exception did not apply].) During the
four year detention period, DCFS consistently reported that Perkins was meeting
all of the children’s needs and providing them with a “stable,†“nurturing
home.†DCFS also reported that the
children were developing appropriately, appeared healthy and exhibited a strong
attachment to Perkins, who felt that she had become their “mother figure.â€
Finally,
mother has cited no evidence suggesting that severing the children’s
relationship with her would have a significant, detrimental impact on their
well-being. DCFS’s reports do not
indicate that the children had difficulty separating from mother at the end of
their visits; nor do the reports show that the children experienced hardship or
distress during the extended time periods when mother’s visits stopped or
became more sporadic. The record also
contains no bonding study or expert evidence suggesting that the children might
suffer from a severance of the relationship.
In
sum, while it may be inferred from the record that mother and children enjoyed
their visits together, “we cannot say the that the [juvenile] court abused its
discretion when it concluded that any detrimental impact from severance of the [parental]
relationship . . . was outweighed by the benefits to [the children] that would
come from adoption.†(
see also In re Autumn H. (1994) 27
Cal.App.4th 567, 575 [exception applies only if the severance of the
parent-child relationship would “deprive the child of a substantial, positive
emotional attachment such that the child would be greatly harmedâ€].)
Mother,
however, argues that we must nonetheless reverse the juvenile court’s ruling on
the beneficial parental relationship exception because it was based on improper
criteria. Specifically, mother asserts
that the court chose not to apply the exception based on Perkins’s assurances
that, following the adoption, she would continue to allow mother to visit the
children.
Two
prior decisions–In re C.B. (2010) 190
Cal.App.4th 102 (C.B.) and
may not deny the beneficial parental exception based solely on the “the
prospective adoptive parents’ willingness to allow the children to have
continued contact with mother.†(
[“We do not believe a parent should be deprived of a legal relationship with
his or her child on the basis of an unenforceable promise of future visitation
by the child’s prospective adoptive parentsâ€].)
As explained in C.B.: “[I]f a juvenile court determines that a
parent has [established a beneficial parental relationship] and that the
benefit from continuing that parent-child relationship . . . ‘promotes the
well-being of the child to such a degree as to outweigh’ the benefit that child
would gain from the stability and permanency of adoption [citation], then the
parent-child relationship exception is established. In those circumstances, the court cannot
nevertheless terminate parental rights based upon an unenforceable expectation
that the prospective adoptive parents will voluntarily permit future contact
between the child and a biological parent, even if substantial evidence supports
that expectation.†(C.B., supra, 190 Cal.App.4th at pp. 128-129.)
In
this case, however, the trial court never found that the benefits the children
would derive from maintaining their relationship with mother outweighed the
benefits they would enjoy from adoption.
Indeed, the court found just the opposite. Nor did the court base its decision to
terminate parental rights on Perkins’s assurances that she would permit visits
in the future. Although the court’s
order observed that mother’s relationship with her children was likely to
continue given Perkins’s assurances she would allow visits after adoption, the
very next sentence clarified that denial of the exception was not based on this
factor: “In any event, the Court finds,
having observed the children, Mother and Perkins, that the best interests of
the children in finding permanency in their lives through adoption clearly
outweighs any interest Mother might have [in preserving her parental rights].†C.B.,
supra, 190 Cal.App.4th 102 and S.B.,
supra, 164 Cal.App.4th 289 are therefore inapplicable.
DISPOSITION
The juvenile
court’s orders are affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J.
WOODS, J.
title="">[1]
statutory citations are to the Welfare and Institutions Code.
title="">[2]
that the evidence presented at the hearing showed “the best interests of the
children in finding permanency in their lives through adoption clearly
outweigh[ed]†any detrimental impacts the children might suffer from severing
the parental relationship.
