Opinion
A113660
4-20-2007
In re JAYLEN S., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY Petitioner and Respondent, v. JANET S., Objector and Appellant.
NOT TO BE PUBLISHED
Janet S. is the mother of Jaylen S., who was declared a dependent child of the Alameda County juvenile court when he was five months old. Following a contested hearing under Welfare and Institutions Code section 366.26, the court found it likely that Jaylen would be adopted and terminated mothers parental rights. Mother contends the court applied the wrong legal standard when determining whether her bond with Jaylen made it detrimental to terminate her rights. She further argues that the court abused its discretion when it refused to apply the "beneficial contact" exception to adoption under section 366.26, subdivision (c)(1)(A). We affirm.
BACKGROUND
Mother was a dependent of the juvenile court from the ages of seven to nineteen. She was sexually and physically abused as a young teenager while placed in the home of a family member. Her own mother had a history of mental illness and was hospitalized, diagnosed with schizophrenia. Mother became homeless after turning eighteen, living on the streets and in shelters.
In February 2004, when she was 20 years old, mother gave birth to Jaylen while living in a shelter. The staff there became concerned because she took Jaylen into the cold and called 911 to report that Jaylen had stopped breathing when in fact he had not. Mother declined services that were offered to her by the Alameda County Social Services Agency (SSA). She left the shelter to live with a relative who reported that she was extremely depressed and very possessive of Jaylen. Mother again declined services offered to her by SSA.
When Jaylen was less than two months old, someone reported that mother had purposefully dropped him and had said she would roll him down the hill into traffic in his stroller. Mother was briefly hospitalized under section 5150 to determine whether she was a danger to herself or Jaylen. She explained that she had only dropped Jaylen onto her stomach in the middle of the night as they were sleeping together, and that the statement about rolling down the hill referred to a possible visit to Jaylens father, who worked at a carwash at the bottom of the hill. After she was released from the hospital, mother stayed with a male relative for about a month. She was possessive of Jaylen, refused to be fully dressed inside the home, and accused the relative of urinating on Jaylen.
In July 2004, mother moved into a shelter and was diagnosed with post partum depression with psychotic features. She was described by a shelter physician as "floridly psychotic" with "moments of lucidity." Of Jaylen, she frequently made unsupported statements such as: "The baby has AIDS," "The baby is retarded," "The baby is defective," and "Wed be better off if we both committed suicide." She called an ambulance and took Jaylen to the hospital at least twice, although there was nothing wrong with him. Mother was again hospitalized under section 5150 after making additional statements about harming herself and Jaylen, and Jaylen was detained in an emergency foster home.
In July 2004, SSA filed a dependency petition under section 300, subdivision (b), alleging that mother was unable to safely care for him due to her mental illness. In a report prepared for the jurisdictional hearing, SSA noted that mother was very bonded with Jaylen and that due to his age, Jaylen had no significant bonds with people other than mother. The petition was sustained and Jaylen was removed from mothers custody. Mother was offered services under a reunification plan that allowed supervised visitation and required her to obtain a psychological evaluation.
Following an evaluation in September 2004, psychologist Shawn Fruge concluded that mother was unlikely to benefit from reunification services due to her mental illness. He diagnosed her as suffering from major depressive disorder with psychotic features, post traumatic stress disorder and a nonspecified personality disorder. A psychiatrist monitoring mothers medications during this period diagnosed her as having postpartum depression and possible early onset of schizophrenia. During this period, mother often appeared disheveled, and she was preoccupied by reported illnesses for which there were no physical symptoms. Psychiatrists who saw her during this time expressed concerns that she was suffering from a delusional disorder or schizophrenia.
Jaylen was placed in the home of a foster mother. He was transported for supervised visits with mother through the Therapeutic Guidance for Infants and Families program (TGIF). The counselors who supervised the visits reported that mother loved the minor very much, but was obsessive about his health and well-being. She did not seem to have insight into her own mental health issues.
At the six-month review hearing held in February 2005, the court ordered six more months of reunification services. Mother continued therapy with Virginia Harrison, a licensed clinical social worker who believed that mother had surprising coping skills and that her depression came about during a period when her own mother had died and when she had reported the sexual abuse she suffered as a child. Harrison believed mother was no longer delusional and that her living situation was more stable.
Mother also began a mental health day treatment program. After provisional diagnoses that included schizophrenia, the program psychiatrist diagnosed mother as having postpartum depression with psychotic features. Mother acknowledged suffering from postpartum depression, but did not have insight into the actions leading to Jaylens removal. Her paranoid and delusional thoughts continued; among other things, she became concerned that she was being poisoned and told a case worker that a doctor had removed her cheekbones. It was difficult for mothers mental health care providers to assess her compliance with her prescribed psychotropic medication.
Psychologist Warren Taylor evaluated mother in May 2005 and diagnosed her as having schizoaffective disorder (bipolar, with postpartum onset), nonspecified cognitive disorder and nonspecified personality disorder. Her test scores showed that she was attempting to place herself in an unrealistically favorable light and suggested that she was impaired in one or more areas: speech and communication, reality testing, occupational or school functioning, interpersonal relationships, judgment, thinking or moods. According to Dr. Taylor, mothers mental health issues precluded her from effectively using reunification services offered to her.
The TGIF therapists who worked with mother commented on her dedication to the program. Mother fed and changed Jaylen during their visits and had improved in her ability to assess his needs. But she needed assistance in understanding normal play and development for a child his age, and the highly structured setting made it difficult to assess whether she could ever safely parent Jaylen by herself on a day to day basis. Mother was very invested in her relationship with Jaylen, but had difficulties reading his cues and needed concrete directions from the workers who supervised the visits. She tended to perseverate or obsess about Jaylens possible illnesses, diaper changes and hunger. This type of behavior can lead to irrational acts against a child.
At the twelve-month review hearing, SSA reported that Jaylen had bonded with his foster mother, who wanted to adopt him if he was not returned to mother. He was developmentally on track and doing well in the foster home. The court concluded that notwithstanding mothers progress and improvement in certain areas, Jaylen could not be safely returned to her care and the prognosis for doing so in the future was poor. Finding no substantial probability of return within the eighteen-month deadline for dependency cases, the court terminated reunification services and set the case for a permanency planning hearing under section 366.26.
At the hearing under section 366.26 in April 2006, SSA recommended the termination of mothers parental rights and adoption as the permanent plan. Mothers supervised weekly visits with the minor through TGIF had continued. It was clear that mother loved Jaylen and was committed to him, but she still needed assistance and reassurance in dealing with him and her repertoire of methods to engage him had not changed as he had matured. TGIF staff had significant concerns about mothers ability to parent, because she still needed direction in responding to Jaylens cues and understanding the normal play and development of a child. Jaylen was affectionate and playful with mother, but had a significant attachment to his foster mother.
Mother argued that her rights should not be terminated, because she had maintained regular visitation and contact with Jaylen under the "beneficial contact" exception of section 366.26, subdivision (c)(1)(A). The court rejected this argument and ordered that her rights be terminated so that an adoption could go forward.
When issuing its ruling, the court noted that mother had improved, but had not progressed beyond the point where supervised visitation could be allowed. "[I]f the court made a decision that the child should not be adopted, the status quo would be maintained indefinitely. . . . [¶] [T]he TGIF program believes that it has tried to teach the mother and assist the mother to the best of their ability, and they have not seen any change, or much of a change, a significant change in terms of the mothers ability to parent Jaylen. . . . [¶] The mother, unfortunately, continues to perseverate [obsess] and becomes fixated on things that are going on with Jaylen that cause her anxiety. [¶] . . . [¶]
". . . The system seems to be set up in a way that there is limited visitation. However, even so, we do see cases where the supervised visitation, when appropriate, does graduate to unsupervised visitation. And the unsupervised visitation can lead to trial visits and ultimately, return of the child to the parents. [¶] But we dont have that in this case. And Ive considered that because I wanted to give the mother the benefit of what shes doing in the TGIF program. [¶] In that finite period of time, I believe she does try to parent the child to the best of her ability. And so, I need to look at that and not look at necessarily the amount of time that the child is spending in the foster home. So, of course, given all the time he spends in the foster home with the foster parent, of course were going to see more progress and more evidence, and more of a demonstration of the assumption of a parental role. And were going to see attachments that are developed. But that does not mean that the parent, the biological parent also cannot assume that role and responsibility. And once again, as Ive said, we have seen it in many cases, but I have not seen it in this case."
DISCUSSION
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the permanency planning hearing, the court must terminate parental rights if the child is likely to be adopted, unless the case falls within a statutory exception. (§ 366.26, subd. (c)(1).) The parent bears the burden of establishing by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
The beneficial contact exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds 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 applies only if both prongs are met.
At the permanency planning hearing under section 366.26, it was undisputed that mother maintained regular and consistent contact with Jaylen, satisfying the first prong of the beneficial contact exception. At issue was whether mother satisfied the second prong of the statute — namely, whether Jaylen would benefit from continuing his legal relationship with mother. To establish this prong, a parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Rather, there must be proof that he or she occupies a parental role in the childs life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
To come within the beneficial contact exception to adoption, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The courts balancing test must be performed on a case-by-case basis, taking into account variables such as "[t]he age of the child, the portion of the childs life spent in the parents custody, the `positive or `negative effect of interaction between parent and child, and the childs particular needs." (Id. at p. 576.) This standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
Mother argues that the court improperly relied on the fact that she was not on course to either reunify with Jaylen or move to unsupervised visitation when it determined the beneficial contact exception did not apply. She contends that in so doing, the court applied an incorrect legal standard (subject to our de novo review) because any case in which the exception applies is necessarily one in which reunification efforts have ceased.
We disagree with the premise that it is inappropriate to consider a parents failure to reunify or obtain unsupervised visits when assessing the quality of the relationship with the child. Although it is true the applicability of the beneficial contact exception presupposes that reunification efforts have not succeeded, a parent who has failed to reunify and who has not progressed to the point that she can safely be alone with the child is less likely to have a relationship that can be characterized as parental.
Mother also complains that the court failed to evaluate the quality of her visits with Jaylen, focusing instead on the limited amount of time she had spent with him. We disagree. Though the court commented that Jaylen only saw mother once a week, it did so in the context of comparing the bond he had with mother and the bond he had with his foster mother, and it was clear from the courts remarks that it was factoring in the limited time available to mother to maintain her relationship with Jaylen. The record does not support mothers claim that the court disregarded the quality of the visits. To the contrary, when making its ruling, it discussed the mothers progress in the TGIF visitation program, noting that her parenting skills had not changed drastically as a result of her participation.
Mother contends that in addition to applying the wrong legal standard to the beneficial conduct exception, the court erred when it decided, based on the evidence before it, that the exception did not apply. Though some courts have applied the substantial evidence test when reviewing this issue on appeal (e.g., In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342), "the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a `compelling reason for determining that termination would be detrimental to the child." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
The court did not abuse its discretion when it determined that the benefit of a stable, permanent home for Jaylen outweighed the benefit of continuing a limited number of supervised visits with mother. Although mother and Jaylen had a loving relationship, the court rationally concluded that Jaylen looked to his foster mother as his parent and that his interests would best be served by adoption. Jaylen was more than two years old and had only lived with mother for the first five months of his life. The court did not act arbitrarily or capriciously when it determined that mothers relationship with Jaylen lacked the parental quality necessary for the beneficial contact exception to apply. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351-1352.)
The judgment (order terminating parental rights under section 366.26) is affirmed.
We concur:
POLLAK, J.
SIGGINS, J. --------------- Notes: Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.