Opinion
C082500
02-06-2017
In re A.B., a Person Coming Under the Juvenile Court Law. NEVADA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. L.B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J09226)
L.B. and D.R., parents of the minor A.B., appeal from orders of the juvenile court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Mother's sole claim, which father joins without additional argument, is that the juvenile court erred in failing to find that mother established the beneficial parental relationship exception to adoption. The minor was mother's daughter, aged six at the time of the hearing.
Further undesignated statutory references are to the Welfare and Institutions Code. --------
As we will explain, although mother did establish a parental relationship with the minor, which at times was beneficial to both mother and daughter, on this record we cannot say that the juvenile court erred by finding that the benefit gleaned by the minor from the relationship with her mother did not outweigh the well-being the minor would gain in a permanent home. Prior to the court's decision to terminate parental rights, the minor told multiple people that she wanted to live with and be adopted by her maternal cousin, who is her current caretaker and prospective adoptive parent. When asked by the psychologist who prepared a bonding study for the court whether "in between visits [did she] think about mommy," her answer was "no." Further, the affect of the parental relationship on the minor was not consistently beneficial and positive, as we discuss post. Substantial evidence supports the juvenile court's thoughtful ruling that the exception to the rule did not apply in this difficult case.
FACTUAL AND PROCEDURAL BACKGROUND
The Initial Dependency
The minor, born in January 2010, was first detained from mother's custody in El Dorado County in June 2012. The petition cited mother's methamphetamine abuse and entrusting of the minor's care to unsafe caretakers. Mother also experienced chronic pain and took a number of medications. The court sustained the petition, adopted a case plan, and transferred the case to Nevada County and its Department of Social Services (Department).
Nevada County accepted the transfer in. By the 12-month review hearing, mother had made substantial progress in her services. She began unsupervised visits with the minor in May 2013 and the court returned the minor to mother's home under supervision in September 2013--after 15 months out of mother's custody.
Over the next 17 months, the Department provided family maintenance services to mother, and the minor remained in mother's care. Mother had been ordered to remain clean and sober and submit to regular drug and alcohol testing; her urinalysis had been consistently dilute; which could contribute to negative results despite drinking. The status review report signed June 11, 2015, expressed some concerns about mother's physical and mental health. Noting that mother had "been sick a lot" lately and that "there is always the danger of relapse," the Department nonetheless recommended terminating the dependency.
Section 387 Petition
Less than a week after the recommendation to terminate dependency was noted and immediately prior to the review hearing, on June 16, 2015, the social worker filed a section 387 petition seeking to remove the minor from mother's custody. The Department alleged that mother became extremely drunk--after consuming multiple shots of vodka with beer--and fell down, becoming unresponsive. Emergency responders and law enforcement were called and took mother away; the minor was traumatized and " 'crying and crying' " because she thought her mother was dead. Mother was arrested for child endangerment.
The minor told the social worker that mother regularly had alcohol in the home and drank with her boyfriend and neighbor, consistently hiding the alcohol from the social worker. " 'It was before and after I was five.' " The minor said mother drank with her boyfriend " 'every time he came over.' " She added that she wanted to live with her maternal cousin (her "cousin Susie"), and that there were other things she wanted to tell the social worker but could not, because mother had told her they were " ' "family secrets." ' " She also told the social worker that her mother drove with her in the car after drinking, with the implication that this was a regular occurrence.
Mother speculated she was " 'self sabotaging' " by drinking as she knew she was poised to have her daughter return to her care and did not feel she had the necessary support. Although she admitted drinking and blacking out the day of the incident, she blamed the blackout on new medication and denied drinking other than the day of the incident. She minimized her behavior, citing the fall and injury as the issue rather than her consistent drinking in violation of the court's order to refrain. She later blamed the Department for her alcohol use, claiming she drank because she was in (physical) pain and needed more medication, but the Department would not let her " 'have the "right" doctor to address [her] pain.' "
The minor's therapist told the social worker that the minor might be adversely affected by the removal of access to mother for support and care. Nonetheless, the Department recommended terminating mother's reunification services. An addendum report contained corroborating evidence of mother's alcohol use over the last year and an indignant statement by the minor that mother hid her alcohol with the minor's toys. At this juncture, mother had been provided nearly three years of reunification and maintenance services.
After extensive testimony at the contested section 387 disposition hearing, the court found it would be detrimental to the minor to return to mother's care and that reunification services had exceeded the statutory maximum. The court terminated maintenance services and set a section 366.26 hearing. Mother filed a writ of review which was denied. (L.B. v. Superior Court of Nevada County, case No. C081350.)
The Section 366 .26 Reports and Hearing
The Department's report for the section 366.26 hearing stated the minor was living with the cousin, doing well in school, and had no concerning behaviors. Mother was visiting the minor twice a month and the visits went well. The minor was open about past trauma and spoke to both the social worker and adoptions specialist about it. She had developed substantial emotional ties to the cousin. She enjoyed the placement and told the adoptions worker she felt safe there and understood that she would not return to mother's care. She told the adoptions worker she was ready to be adopted. The Department's report concluded that the minor was highly bonded to the cousin, who had a safe and stable home. The social worker who visited the minor monthly at her cousin's house had never heard the minor ask to go back to her mother.
The minor was paired with a CASA worker, who also filed a report with the juvenile court. The CASA worker reported that the minor had told the worker directly that she wanted to be adopted by her cousin. The CASA report recommended terminating parental rights and adoption for the minor.
The adoption assessment by the California Department of Social Services also found the minor had a positive attitude toward adoption and had substantial emotional ties to the cousin. The assessment also recommended the court terminate parental rights.
Mother and the minor participated in a bonding study ordered by the court. As relevant here, the psychologist asked the minor a series of questions designed to identify her attachment and family relationships. Although mother figured prominently in the exercise as an important person to the minor, the minor identified the cousin as the person she would miss the most if she were left alone on an island, and the person she would want to help her talk to her teacher if she "were in trouble" or "help her with bullies in a park." In another segment of the study, she named her cousin Susie as well as another cousin and her grandfather as grownups she would ask if she were "in trouble and needed help." She did not name mother in that category. She told the psychologist she did not think about mother between visits, did not cry for her mother between visits, and did not ask to call her mother between visits.
The psychologist observed the interaction between mother and the minor and concluded that the minor saw mother as a parental figure and had a secure attachment to her. Based on his observations and information provided to him, the psychologist assessed that there was a parent-child relationship between mother and the minor with a well-developed positive bond. He found there was information suggesting the minor would be harmed if the parent-child relationship was terminated but also information to the contrary. He concluded that the minor would feel great harm in the short term if she were told she would never see mother again, but would likely not experience longer-term difficulties if the relationship were terminated. In his opinion, the minor's current healthy development and the fact that she did not think about mother outside of her twice monthly visits supported the conclusion. In weighing the benefit of continued contact between the minor and mother against permanency, the psychologist addressed whether mother had the ability to remain sober, noting that despite extensive services, mother still saw herself as a victim and minimized her behaviors. He also noted that, while the minor's therapist had suggested that the minor needed ongoing contact with mother, that conclusion was undermined by the therapist's lack of knowledge about the circumstances underlying the dependency. The psychologist concluded the advantages to the minor of adoption outweighed the benefit to the minor of continued contact with mother.
Testimony and Ruling at the Section 366 .26 Hearing
At the contested section 366.26 hearing, which began on June 28, 2016, the Department submitted on the reports as well as the psychologist's relationship study.
Mother testified on behalf of her position. As relevant here, she testified to additional contact (via Skype) between she and the minor during which the minor expressed that she wanted to live with mother, but did not produce any evidence documenting the attempts at contact which she described to the court. The social worker testified that although mother had told her the minor had "reached out to" her through Skype numerous times, she could not verify any contact.
Mother also called the psychologist who conducted the bonding study. He testified largely in accordance with his report, which we have summarized ante. He clarified that he "[did] think there would be some significant emotional loss and distress" if the minor were to be told she would never see her mother again but that in his opinion, "the relative advantages outweigh the relative disadvantages" (meaning comparative advantages and disadvantages). He emphasized that cousin Susie came to the forefront of the "if you were in trouble" questions he had presented to the minor, and the fact that the minor was currently well-adjusted signaled that her current placement with the cousin was her predominant "attachment relationship" and that she was having a good "attachment experience." Cousin Susie was the minor's "primary attachment figure." He clarified that he had specifically asked the minor whether she thought about mother or asked to call her mother or felt sad about her mother and she had answered "no." He was asked on cross-examination about his opinion regarding the harm severance of the relationship with mother would cause the minor, and described it as potentially "very distressing" in the short term--meaning "days or weeks"--for the minor if he assumed the "worst case," meaning that the minor would be told she would have no future contact with mother.
The psychologist maintained that the minor was currently doing very well and that ultimately there was no "clear reason to assume that trajectory would not continue" after termination. He raised his concerns about mother as a factor in his conclusion that the benefit of termination to the minor outweighed the detriment, testifying that mother's perspective of herself as a victim could signal deficiencies in her ability to assume responsibility for her choices as well as the impact of those choices on the minor. This caused him to foresee continuing problems in the parental relationship. He concluded that the minor would do "just fine" in the long term even if she never saw mother again.
The juvenile court took the matter under submission after hearing argument on July 8, 2016, and the parties appeared again for the ruling on July 14. The court recognized that the case was "a close call and a difficult case." After finding that mother's visitation had been consistent, the court analyzed "the issue of a substantial and positive emotional attachment." It found mother lacked credibility, as she testified the minor had "secretly contacted her . . . via Skype" but never produced any corroborating evidence. Further, the weight of the evidence was to the contrary--that the minor neither contacted mother nor thought about mother outside of visits. Mother also minimized her own accountability for her substance abuse and the danger it presented to the minor, which spoke to the nature of her claimed positive relationship with the minor. The court found mother had not met her burden to show the exception to adoption applied and terminated parental rights. This appeal followed.
DISCUSSION
Mother's sole claim on appeal is that the juvenile court erred in failing to find she had established the beneficial relationship exception to the preference for adoption. Father joins mother's argument.
It is well settled that at the selection and implementation hearing held pursuant to section 366.26, the permanent plan preferred by the Legislature is adoption. If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which termination would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find detriment to the child from termination. (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 5.725(d)(4).)
Termination of parental rights may be detrimental to the minor when: "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) However, the benefit to the child must promote "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 other words, the 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. 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re C.F. (2011) 193 Cal.App.4th 549, 555.)
Mother regularly visited the minor, thus establishing the first requirement of the beneficial parental relationship exception. As to the second requirement, the evidence did demonstrate that there was a parental relationship between mother and the minor, as the trial court found. However, the positive nature of the emotional attachment was called into question by mother's continued substance abuse and lack of credibility on that topic and others. Mother claimed she suffered only one relapse in her sobriety and blamed the Department for frustrating her attempts at pain management, yet there was evidence that for a significant period of time she had been secretly drinking to inebriation in front of the minor, hiding her alcohol from the social worker--even among the minor's belongings--and driving with the minor after drinking. She made repeated claims of contact initiated by the minor via Skype--with some of these claims coming under oath--which she never was able to substantiate despite repeated claims that the evidence was on her computer. Her relapse triggering her arrest for child endangerment came mere days before she was scheduled to reclaim full responsibility for the minor, and she admitted to "self-sabotage" by drinking to the point of incapacity.
In In re Marcelo B. (2012) 209 Cal.App.4th 635, another appellate court explained that the parents' continuing alcoholism was a pertinent factor in deciding whether the second requirement of the beneficial relationship exception had been met. Although mother argues that the situation explained in that case is "sharply distinguishable" from the situation here, we disagree. In Marcelo B., the parents had a "warm and affectionate relationship with their son." (Id., p. 644.) He was "excited to see his parents" when they visited. But he had no trouble with separation and adjustment when visits were over. And he had found " 'a loving, safe, and nurturing home environment' " with his current caregivers. (Ibid.) We see a very similar set of relevant facts here.
As we have described ante, here the minor failed to identify mother as the person she would turn to if in trouble, and the evidence showed that her cousin was her primary attachment figure. She told the social worker she wanted to live with her cousin. She told multiple people involved in the dependency process that she wanted to be adopted. She told the psychologist that she did not think about her mother, cry for her mother, or try to communicate with her mother outside of scheduled visits. There is no evidence that she had any trouble separating from mother or adjusting after visits.
These facts all serve to distinguish this case from the cases cited by mother, such as In re Amber M. (2002) 103 Cal.App.4th 681, where the psychologist conducting the bonding study concluded that the mother and the oldest child shared " 'a primary attachment' " and the children all had difficulty separating from their mother. (Id., p. 689.) In Amber M., the "common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA [was] a beneficial parental relationship that clearly outweigh[ed] the benefits of adoption." (Id., p. 690.) Here, as we have described, the common theme is to the contrary.
In re Scott B. (2010) 188 Cal.App.4th 452 (cited by mother) also speaks to an entirely different situation. There, 11-year-old Scott had lived with his mother for the first nine years of his life and consistently insisted that he wanted to live with her still. (Id., p. 471.) His CASA "repeatedly stated in her reports that Mother and Scott have a very close relationship and it would be detrimental to Scott for their relationship to be disrupted." (Ibid.) These factors, combined with Scott's "continued emotional instability" presented a "compelling reason" to apply the exception in his case. (Ibid.)
Mother also relies on In re S.B. (2008) 164 Cal.App.4th 289, where the father "complied with 'every aspect' " of his case plan" (id., p. 298). His daughter consistently expressed that she missed him and wanted to live with him; for the first year of her removal she was unhappy and tried to leave with him when his visits ended. (Ibid.) The social worker noted that the father consistently put his daughter's needs before his own. (Ibid.) As we have described, the evidence in the instant case did not show a comparable situation. (See also In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1208 [finding beneficial relationship exception where nine-year-old boy was unhappy in his current placement, expressed desire to live with his mother, and had "no woman in his life other than Mother with whom he had a beneficial relationship"].)
Mother further argues that the trial court misunderstood the psychologist's testimony and improperly relied on that misunderstanding to rule as it did.
While reciting its ruling, the court noted that "it is true as [the psychologist] recognized the child might, and I use the word 'might,' suffer some immediate harm upon learning of the inability to ever see her mother again, longitudinally while not having a crystal ball he does not believe termination of parental rights would result in the child suffering such a degree of harm, i.e. great harm so as to be detrimental to the child due to the severance of the parent-child relationship." (Italics added.)
Mother argues that the psychologist testified that the minor would suffer harm, as opposed to might, as articulated in the italicized portion above. Although we agree with mother's point, we do not agree with her conclusion that the trial court misunderstood the testimony. As the trial court made clear, "might" was a word that it used deliberately, presumably to describe its own assessment of the evidence. As we have discussed, and as referenced by the court in the passage above, the psychologist's description of the greatest potential harm to the minor focused on what he described as the "worst case"--if the minor were told she would never be able to see her mother again. There was no evidence that adoption by the maternal cousin would necessarily have that effect. The psychologist merely assumed it, as he understood he was expected to do for his assessment. Thus the greatest harm described in the psychologist's testimony stemmed from a hypothetical where the minor was told she would never see her mother again, which might or might not happen in the event of termination of parental rights.
In any event, the court correctly characterized the psychologist's relevant conclusion--that the expert did not believe termination of parental rights would result in the minor suffering such great harm that termination would be detrimental to the minor.
The trial court's ruling was supported by substantial evidence. The court did not err in finding that mother had not proven the benefit exception applied in this case.
Because mother has not prevailed, father's challenge to the juvenile court's ruling is also unsuccessful.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Mauro, Acting P. J. /s/_________
Renner, J.