Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County No. CK57935, Marilyn Kading Martinez, Commissioner.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Esperanza H. (mother) appeals from a judgment of the juvenile court terminating her parental rights over Enrique and Margarita H. under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court erred in finding that the exceptions to termination of parental rights set forth in section 366.26, subdivisions (c)(1)(A) and (c)(1)(B) did not apply. Mother also appeals from the issuance of a restraining order against her under section 213.5. Mother argues that substantial evidence did not support the order. We find no error and affirm the judgment and order of the juvenile court.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Effective January 1, 2008, these code provisions were renumbered as section 366.26, subdivisions (c)(1)(B)(i) and (c)(1)(B)(ii). Because the previous version of the statute was in effect when mother filed her appeal, we refer to these statutory provisions using the prior numbering.
FACTUAL AND PROCEDURAL BACKGROUND
Enrique H. was born in May 1994. His sister, Margarita H., was born in August 1995. Both children lived with mother. On February 3, 2005, the Department of Children and Family Services (DCFS) filed a petition regarding the children under section 300, subdivisions (a), (b), and (c). According to the petition, when DCFS intervened in late January 2005, the children were living in extremely unsanitary conditions. Social workers described the house as extremely filthy. Food, trash, and clothing were strewn throughout the house. The bathroom was filled with mother’s grandchild’s soiled, open diapers. The children’s room was covered with dirty clothes and trash. Enrique and Margarita both had offensive body odor and untreated insect bites. Margarita suffered from severe head lice. DCFS learned from the children’s school that both children had extremely poor personal hygiene and often smelled. Margarita’s teachers had to open the classroom windows for fresh air when she was there, and they had to send her home on occasion because of her body odor and head lice. The school also reported that other children were “hard on [Enrique]” because he was “dirty and smelly.” The children told DCFS social workers that mother disciplined them by hitting them with a belt. According to the children, mother frequently left Enrique alone to care for Margarita and his two nieces, ages four and two. Father was incarcerated in Arizona. The petition also alleged that DCFS had previously provided services to mother in July 2004 and had advised her at the time to clean her house. In 2004, the vice principal at the children’s school also had given mother referrals for counseling, alcoholism/drug treatment, domestic violence counseling, and adolescent services. On January 31, 2005, mother agreed to take a drug test. She tested positive for amphetamines and methamphetamine.
Mother’s adult daughter and her two small children (mother’s grandchildren) also lived in the same house.
At the initial detention hearing on February 3, 2005, the juvenile court found that a substantial danger to the children existed and there was no reasonable means to protect them without detaining them. DCFS eventually placed Enrique and Margarita with their maternal aunt and uncle (collectively “caretakers”). The court ordered DCFS to provide family reunification services to mother.
Over the next 19 months or so, mother only partly complied with the court-ordered reunification program that required her to stay drug-free, submit to random drug tests, maintain a relationship with the children by following the conditions of a visitation plan, attend parenting classes, and complete a drug treatment and individual counseling program. By April 2005, mother had completed a parenting program, but in June 2005 she was arrested for possession of methamphetamine for sale. As a result, mother was incarcerated from August through November 2005. Mother began a drug treatment and individual counseling program but did not complete it. In June 2006, mother missed a scheduled drug test, and in July 2006 she twice tested positive for methamphetamine. By July 2006, mother was living in a motel with her adult daughter and did not have stable housing.
Except during her periods of incarceration, mother had consistent monitored visits with the children. Although the children enjoyed the visits, there were occasional problems. When mother resumed visits with the children after her release from jail in late November 2005, the aunt reported that the children “resorted to their previous behavior of not following instructions, acting out aggressively and not expressing themselves.” Enrique began again to suffer from encopresis (soiling his pants)—a problem that apparently had subsided soon after he began living with his aunt and uncle. Moreover, mother’s behavior during visits appeared questionable at times, or even detrimental to the children. For example, in February 2006, the children told their DCFS social worker that, during one visit, mother instructed them to tell their lawyer, DCFS, and the court that their aunt was mistreating them and that their uncle drank. The children did not want to lie and their mother’s behavior upset them.
In January 2007, mother submitted a letter to the court in which she asserted that Enrique “admitted to lying about the letters he and [Margarita] wrote[.]”
There were also ongoing tensions between mother and the caretakers. In January 2006, the aunt reported that the children returned from visits with mother dirty and unwashed, and that mother brought them back late. On one occasion, these issues led to a verbal altercation between mother and the caretakers. In June 2006, when the caretaker uncle and the caretakers’ daughter refused to monitor a visit, mother reportedly became belligerent and threatened to “shoot up” the caretakers’ home and kill the caretakers’ biological daughter.
Despite the tensions between mother and the caretakers, throughout the reunification period Enrique and Margarita told their DCFS social workers that they were happy living with their aunt and uncle. DCFS reported that the children appeared healthy, happy, and appropriately groomed and dressed. DCFS social workers also observed that the aunt was affectionate with the children and protective of them, and that both Enrique and Margarita appeared comfortable and bonded with the caretakers. The caretakers told DCFS that they considered Enrique and Margarita members of their family and wanted to raise them as their own children.
On July 31, 2006, DCFS recommended that the court terminate reunification services. Mother initially contested the recommendation but withdrew her contest at a September 18, 2006 hearing. At the September hearing, the court noted that mother admitted she had relapsed, and that she continued to lack stable housing. The court found by a preponderance of the evidence that returning the children to their mother’s custody would create a substantial risk of detriment to their well-being. The court set a selection and implementation hearing under section 366.26. The caretakers said they wanted to adopt the children. In November 2006, mother was again incarcerated.
The court set the section 366.26 hearing for January 8, 2007. On the day of the hearing, the children’s counsel informed the juvenile court that Enrique, then 12, had told his attorney that he did not want to be adopted. This contradicted Enrique’s statements in the DCFS reports; he had told the case social worker that he wanted his aunt and uncle to adopt him. The court continued the section 366.26 hearing so that mother—who was in custody at the time—could be there. The children’s counsel said that he would explore the question of adoption with the children before the next hearing.
At the continued hearing on January 9, 2007, counsel for the children informed the court that he had spoken further with both children, they understood what adoption meant, and they both wanted the caretakers to adopt them. Mother was present and contested the termination of parental rights. Mother’s counsel cross-examined Enrique about his understanding of adoption. Enrique testified that adoption meant that once his aunt and uncle adopted him they would take care of him until he and his sister moved out. He also testified that if the caretakers adopted him and told him he could not visit his mother that would make him feel “sad.” Later in the cross-examination, mother’s counsel asked: “So if you found out for you to be adopted, the judge would have to make a ruling that your mom and your dad are no longer your legal parents, if you found out that was true even though they didn’t abandon you, would you still want to be adopted?” Enrique answered “no” and began to cry.
However, after a lunch recess, Enrique testified that being adopted meant that his aunt and uncle would be his legal parents, and that would mean they would keep him healthy and clean until he was an adult. Enrique testified that he wanted his aunt and uncle to adopt him, and when DCFS counsel asked if he wanted his sister to be adopted also, he answered “yes” with a “big smile.” On further cross-examination, Enrique said he understood that after he was adopted his mother could not ask for him to live with her. Margarita also testified, apparently without hesitation, that she understood what adoption meant and that she wanted her aunt to adopt her.
At the conclusion of the hearing, the court found by clear and convincing evidence that it was likely the children would be adopted and that the court did not have evidence sufficient to support any of the statutory exceptions to the termination of parental rights. The court offered some additional explanatory remarks about the termination of parental rights and why the exceptions did not apply:
“It is clear to the court that both of these children understand what it means to be adopted. They are able to distinguish between what is a legal parent and what is a biological parent. [¶] They both agree. . . . . [¶] Enrique did testify that he would be sad if he couldn’t see his mother. But being sad is insufficient to persuade the court that it would be detrimental to terminate parental rights. [¶] And other than this sadness, there really is not any other evidence that these children have a significant, positive, emotional attachment to their mother such that it would be detrimental to terminate parental rights, such that it would outweigh the permanence that these children will realize once they are adopted. The evidence does not support that Enrique is equivocal regarding the issue of adoption. There are no exceptional circumstances to choose another plan other than adoption, which is strongly preferred by law, and it is in these children’s best interest to enjoy the permanence and stability that adoption can provide to them.”
The court terminated parental rights over the children and ordered continued permanent placement services.
Father does not appeal the juvenile court’s judgment. On March 9 and April 24, 2007, mother filed section 388 petitions to change the court’s order. The court denied both petitions. Mother later argued that the section 388 petitions were her attempts to appeal the termination of parental rights. Counsel for mother filed a motion to perfect mother’s appeal on this basis, which we granted.
On May 11, 2007, counsel for the children sought a temporary restraining order against mother to protect the children, their caretakers, and other children living in the caretakers’ home. According to affidavits attached to the restraining order application, in September 2006 the caretakers’ biological son was shot. In October 2006, mother allegedly made threatening remarks that implied that she had been involved in the shooting. The caretakers’ biological daughter submitted an affidavit alleging that in March and April 2007, mother appeared at or near the daughter’s school, assaulted the daughter, instructed the daughter to tell DCFS that her mother (the caretaker aunt) hit her, and threatened to kill the daughter if she told anyone about their conversation. During the April encounter, mother flashed the daughter a gun that she (mother) was carrying. Margarita also submitted an affidavit stating that in April 2007, mother unexpectedly showed up at Margarita’s school. Margarita was frightened and feared that mother would try to take her away. On May 11, 2007, the court entered a temporary restraining order against mother.
The son alleged that a month after he was shot, he unexpectedly ran into mother and her adult daughter. The son alleged that mother told him that a local gang would “finish what [she had] started,” and that he would be dead by his birthday.
The aunt also submitted a letter to the court explaining her own fears that mother would harm her family, and repeating some of the allegations contained in her son’s statement.
Counsel for the children subsequently requested a more permanent restraining order. DCFS also submitted a report recommending that the court issue a permanent restraining order. Mother opposed the request and filed her own sworn statement contesting the accuracy and credibility of the affidavits supporting the restraining order petition. Mother included in her papers a letter from Margarita stating that she loved mother and wished that mother could see her, but mother could not because of the restraining order. On June 7, 2007, the court issued a three-year restraining order. This appeal followed.
DISCUSSION
I. Substantial Evidence Supported the Trial Court’s Decision To Terminate Parental Rights.
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence that it is likely that the child will be adopted if parental rights are terminated, unless termination of parental rights would be detrimental to the child based on one of several statutory exceptions. At issue here are two of those exceptions: (i) the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship; and (ii) a child 12 years of age or older objects to termination of parental rights. (§ 366.26, subds. (c)(1)(A), (c)(1)(B).)
The party challenging termination of parental rights bears the burden of proving that termination of parental rights would be detrimental to the child based on one or more of the statutory exceptions. (Cal. Rules of Court, rule 5.725(e)(3).) We review the court’s findings for substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235 [§ 366.26, subd. (c)(1)(A)]; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333 [§ 366.26, subd. (c)(1)(B)].) In our review, “[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (In re Christopher L., supra, 143 Cal.App.4th at pp. 1333-1334.)
Reviewing courts traditionally have adopted a substantial evidence standard of review when considering a juvenile court’s finding under section 366.26, subdivision (c)(1)(A). (See In re B.D., supra, 159 Cal.App.4th at p. 1235.) Although the court in In re Jasmine D. (2000) 78 Cal.App.4th 1339, applied an abuse of discretion standard of review, the court noted that the practical differences between the two standards are not significant in that both require deference to the juvenile court’s findings. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We apply the substantial evidence test in this case.
A. The Beneficial Relationship Exception.
For the section 366.26, subdivision (c)(1)(A) exception to apply, mother had to prove that termination of parental rights would be detrimental to the children because 1) she maintained regular visitation and contact with them, and 2) the children would benefit from continuing their relationship with her. (§ 366.26(c)(1)(A).) The second prong of this test requires that the parent prove “the relationship [with the parent] promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The court will consider factors such as “‘(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ ” (In re Helen W. (2007)150 Cal.App.4th 71, 81, citing In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Moreover, “[t]he parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827; see also In re B.D., supra, 159 Cal.App.4th at p. 1234.)
Mother maintained regular monitored visits with the children, except when she was in jail. The DCFS progress reports indicated that the visits went well, and that the children enjoyed spending time with mother. However, there was evidence that mother had a less than beneficial effect on the children. When she resumed visits after her 2005 incarceration, the children began to resort to negative behaviors. In addition, rather than creating a positive bond, on at least one occasion mother used a visit as an opportunity to tell the children to lie about how the caretakers were treating them. The children reported that mother’s behavior saddened them. There also was evidence that mother exhibited threatening and inappropriate behavior toward caretakers when she visited the children. All of this evidence supports the court’s finding that mother did not prove that the children would benefit from continuing their relationship with her.
Mother also did not provide evidence that she was taking on a “parental” role rather than one of “friendly visitor.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) In February 2006, Enrique told the DCFS social worker that during visits with mother, he spent time playing games while mother and Margarita watched movies. The children also reported going to the store or swap meets with mother (in violation of the court’s order that all visitation be monitored), and playing with each other, their cousins, or alone. These reports, albeit from early in the reunification period, do not suggest that mother was establishing a loving parental relationship with the children, as opposed to that of friendly visitor. Mother presented no evidence that at any point she took on any duties for her children that a parent normally would perform. Instead, there is evidence that the caretakers were filling this parental role and that the children had developed a strong bond with them.
Mother argues on appeal that “[n]o matter what difficulties she was experiencing in her life, she never gave up trying to maintain her relationship with her children.” Yet, while mother told DCFS social workers that she was prepared to do “whatever it takes” to have the children returned to her, she complied with only part of the court-ordered reunification program. Mother did not complete a drug and individual counseling program during the reunification period and she did not stay consistently drug-free. Even though there is evidence that the children had a bond with mother, substantial evidence supports the trial court’s finding that their relationship with mother did not promote their well-being to such an extent that it outweighed the well-being the children would gain in a permanent home with their adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. Child 12 Years or Older Objection Exception.
Mother also argues that the juvenile court erred by not finding that the termination of parental rights would be detrimental because Enrique, who was 12 years old at the time, objected. Under section 366.26, subdivision (c)(1)(B), if a child 12 or older objects, the court may find that terminating parental rights would be detrimental to the child. We are mindful that this exception, as with the other exceptions set forth in section 366.26, subdivision (c)(1), “merely permit[s] the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Christopher L., supra, 143 Cal.App.4th at p. 1334.)
Here, the progression of Enrique’s statements about adoption is instructive. In August 2005, Enrique told DCFS that he did not want to be adopted, but did want to continue living with his aunt. In February 2006, Enrique said that he liked living with his aunt and uncle and that they took good care of him. In June 2006, Enrique told a DCFS social worker that he “would like to return home to his mother but is okay if his aunt adopts him.” In July 2006, Enrique reported: “I would like to live with my mother but I also like with [sic] my aunt. They take good care of me and my sister. My aunt is also teaching us how to eat right.” In September 2006, Enrique told DCFS that he liked living with his aunt and it was okay if she wanted to adopt him. In January 2007, DCFS reported that both children wanted their aunt and uncle to adopt them. Enrique said he did not mind being adopted by his aunt as long as his mother was “still [his] mother.” DCFS also noted in its section 366.26 report that, according to Enrique’s therapist, Enrique was “apprehensive about the adoption process” and “concerned about his mother’s incarceration,” yet the therapist also opined that such apprehension was not unusual. One reasonable interpretation of this record is that Enrique had decided over time that he indeed wanted to be adopted.
Enrique’s apprehension about the termination of parental rights was evident at the 366.26 hearing, but even then he said that he wanted his aunt and uncle to adopt him. Enrique testified that he understood adoption to mean that his aunt and uncle would take care of him until he was an adult. When confronted with the questions of whether he was okay with not seeing his mother again, or with the judge making a ruling that his parents would no longer be his “legal parents,” Enrique understandably became emotional. Yet, when mother’s attorney asked if he understood that being adopted meant that he could not live with his mother if she asked for him, Enrique responded that he did understand.
Mother concedes that Enrique did not unequivocally object to adoption: she describes his feelings about adoption as “ambiguous.” On the record before us, we find that it was reasonable for the court to resolve any conflicts to find that Enrique favored adoption. We are guided by In re Christopher L. That case concerned a child over 12 (Christopher) who indicated he wanted to be adopted, but testified that he would like to continue to see his mother and would not want to be adopted if he could not see her again. (In re Christopher L., supra, 143 Cal.App.4th at p. 1332.) The court noted that Christopher’s statements did not constitute unequivocal objections, but rather revealed that his desire to live in a stable and loving environment and his desire to see his mother again created an internal conflict. The Christopher L. court ultimately concluded that the juvenile court did not err in ruling that the section 366.26, subdivision (c)(1)(B) exception did not apply. We find the reviewing court’s analysis persuasive:
“We do not consider each of Christopher’s statements in a vacuum. Our review is deferential. [Citation.] It was the juvenile court’s task to determine the testimony that accurately represented Christopher’s state of mind with respect to adoption. His testimony on direct and cross-examination was consistent with statements made to the Agency during the months before the hearing. Given the deference we must accord to a juvenile court’s factual findings, it was reasonable for the court to resolve conflicts in favor of finding Christopher favored adoption.” (In re Christopher L., supra, 143 Cal.App.4th at p. 1335.)
Here, as in Christopher L., Enrique appears to have been struggling with wanting to be adopted by his aunt and uncle, with whom he had developed a strong bond, and at the same time worrying about his mother’s incarceration and wishing to see her in the future. But, according to the DCFS reports, Enrique over time had decided that he wanted his aunt and uncle to adopt him, and that he also wanted them to adopt Margarita. Although his feelings about adoption may have been ambiguous at the hearing, they were not unequivocal objections to adoption. In short, substantial evidence supports the juvenile court’s finding that mother did not meet her burden to show that Enrique objected to termination of parental rights.
II. The Juvenile Court Did Not Abuse Its Discretion in Issuing a Restraining Order Against Mother.
We review the juvenile court’s issuance of a restraining order for abuse of discretion. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1512; Salazar v. Eastin (1995) 9 Cal.4th 836, 849-851.) To the extent that mother challenges the sufficiency of the evidence supporting the juvenile court’s order, “we view the evidence in a light most favorable to the respondent, and indulge all legitimate and reasonable inferences to uphold the juvenile court’s determination. If there is substantial evidence supporting the order, the court’s issuance of the restraining order may not be disturbed. [Citation].” (In re Cassandra B. (2004) 125 Cal.App.4th 199, 210-211.)
Section 213.5, subdivision (a), authorizes the juvenile court to issue restraining orders to protect children who are the subjects of a dependency proceeding, their caretakers, and other children living in the home. (Ibid.; Cal. Rules of Court, rule 5.630(a), (c)-(d).) Here, mother contends that substantial evidence did not support the issuance of the restraining order. We disagree. Counsel for the children submitted three affidavits in support of the application for a restraining order. Enrique and Margarita’s cousins submitted two affidavits that provided evidence that mother had behaved in a harassing and threatening manner. Margarita submitted a third affidavit in which she stated that her mother had appeared unexpectedly at her school causing her to fear that her mother would take her away.
Mother argues that these statements are not credible. However, “[i]t is the trial court’s role to assess the credibility of the various witnesses, to weigh the evidence to resolve the conflicts in the evidence. We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.” (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Although the affidavits may have included speculation about mother’s involvement in the shooting of her nephew, they also contained first-person reports of mother’s threats to harm the affiants, and eyewitness accounts of mother’s threats and harassment. It is not for us to reevaluate the credibility of such first-person statements. Rather, we “view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.)
Substantial evidence supports the juvenile court’s issuance of a restraining order against mother. In addition to the affidavits and DCFS report requesting a permanent restraining order, the dependency court file revealed allegations that mother previously had threatened to harm the caretakers’ family. On this record, we conclude that the juvenile court’s issuance of a restraining order against mother was well within “the bounds of reason,” and was not an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
DISPOSITION
The judgment and order are affirmed.
We concur: COOPER, P. J., RUBIN, J.