Opinion
F062509 Super. Ct. No. JJV049178D
09-13-2011
In re JONATHON C., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. NORMA P., Defendant and Appellant.
Julie A. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from orders of the Superior Court of Tulare County. Charlotte A. Wittig, Commissioner.
Julie A. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and John A. Rozum, Deputy County Counsel, for Plaintiff and Respondent.
Norma P. (mother) appeals from a juvenile court order terminating parental rights (Welf. & Inst. Code, § 366.26) to her four-year-old son, Jonathon. She contends termination would be detrimental to Jonathon because he had a beneficial relationship with her (§ 366.26, subd. (c)(1)(B)(i)). She also argues termination would substantially interfere with Jonathon's sibling relationships (§ 366.26, subd. (c)(1)(B)(v)). Therefore, in her view, there was insufficient evidence to support the juvenile court's decision. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Circumstances Leading to Dependency
In the spring of 2009, then three-year-old Jonathon lived with his mother, father, two older sisters, and an older brother. During this time, respondent Tulare County Health and Human Services Agency (agency) received referrals that the parents were neglecting the children. The parents were allegedly smoking methamphetamine on a regular basis, in and around the home. Also, the eldest child, 12-year-old Jessica, reportedly had to care for her younger siblings. The family denied any problems and the agency closed its investigations. A July 2009 referral for the same problems, however, led to mother's admission that she was using methamphetamine and left the children alone at home on a regular basis. The father was also abusing drugs and could not protect the children.
The parents agreed to participate in voluntary services and the agency referred them to the appropriate services. However, the parents failed to comply. They repeatedly failed to drug test. In addition, mother tested positive four times for methamphetamine. The parents also neglected the special needs of their nine-year-old daughter and five-year-old son. The parents were neither taking the nine-year-old to scheduled mental health counseling appointments nor administering prescribed ADHD medication to her. They were also not taking the five-year-old to required physical therapy for his arm. Also, in August 2009, the family home had no electricity and posed health and safety risks. Due to these ongoing problems, the children were detained in September 2009, and the agency initiated the underlying proceedings.
Early Foster Care and Visitation
The children were first placed together in foster care. Their foster mother soon reported that 12-year-old Jessica was very parentified and did not want to allow the foster mother to do anything for the younger children. Jessica spoon fed her five-year-old brother and occasionally did the same for Jonathon. She also wanted to help bathe and dress her younger brothers, as well as brush their teeth. Jessica did not take well to being reminded that she was a sister and not a mother. A maternal aunt of the children reportedly said that Jessica had been the younger children's "mother" for quite some time. Jessica later revealed she had served as mother to Jonathon since his birth.
According to the foster mother, the nine-year-old girl looked to Jessica for her needs and questions. The five-year-old boy was extremely immature and depended on Jessica for everything. Jonathon was extremely dependent on Jessica as well, but unlike his older brother, Jonathon was willing to play outside and go to the restroom by himself. As time passed, the children appeared to improve, although Jessica persisted in wanting to mother the children when she saw an opportunity.
The children visited with the parents twice weekly for one hour. The parents behaved appropriately, and the visits went well. During the visits, however, the younger children turned to Jessica, not the parents, for their needs and wants. Of the four children, Jessica looked forward most to the visits and was very "down and out" after the visits whereas the other children did not act affected by the separation from the parents.
Juvenile Court's Exercise of Jurisdiction and Disposition
The juvenile court in October 2009 exercised its dependency jurisdiction over the children (§ 300, subd. (b)), adjudged them juvenile dependents, and removed them from parental custody. The court also ordered reunification services for the parents and mental health therapy for the children. Supervised visitation was also part of the reunification plan.
Jonathon's Leukemia Diagnosis and its Effects
In February 2010, Jonathon was hospitalized and diagnosed with a form of leukemia and other blood-related problems. Consequently, he would need three plus years of chemotherapy, starting with twice-weekly treatments. While in treatment, Jonathon's immune response to infections would be compromised. It was imperative to take infection-control precautions in terms of his environment. A diet low in salt and sugar was very important for Jonathon as well. The medical diagnosis and recommendations led to several notable changes in Jonathon's life.
To begin, the agency authorized the parents to remain with Jonathon during his hospitalizations and chemotherapy appointments. The parents took advantage of this opportunity and, as a result, Jonathon appeared to grow closer to the parents. However, the parents brought junk food and candy to those appointments. The parents did so despite Jonathon's restricted diet and repeated requests by staff that the parents provide more nutritional snacks due to the risk of harm to Jonathon's kidneys and side effects because he had to take steroids.
Also, the children's foster mother reported she could no longer care for Jonathon under the circumstances. Consequently, once Jonathon was released from the hospital in March 2010, he was placed apart from his siblings and with a new foster family who was able to provide for Jonathon's very special needs. Jonathon was initially very apprehensive and unsettled due to the new placement and the fact he was no longer with his siblings. At first, Jonathon reportedly would not take off his shoes, even at night, because he said that his siblings were going to come back for him and they would live together. Over time, he adjusted well and grew close to his new foster parents.
In addition, Jonathon required repeated hospitalizations as his immune system was compromised. Jonathon also needed extensive dental treatment, including extractions, which had to be deferred, on account of his condition. Months before the leukemia diagnosis, a dental examination revealed the three-year-old had 14 cavities, some of which eventually turned into abscesses. Furthermore, Jonathon could not attend Head-Start due to the risk of his exposure to infection. Last, Jonathon had been previously diagnosed with an adjustment disorder, but his participation in therapy was limited and sporadic due to the chemotherapy treatments.
The Siblings' Change in Placement
In the summer of 2010, the agency removed Jonathon's siblings from their foster care placement. The agency learned the foster mother permitted mother to have unsupervised visits with Jonathon's siblings in violation of the court's order. In fact, according to mother, the foster mother paid her to babysit the children after school. The parents also claimed they had been paid to watch Jonathon when he previously lived with his siblings.
As a result, Jonathon's siblings were placed in a new foster home. Their new foster parents were close friends of and lived only a few doors away from Jonathon's foster parents. As a result, Jonathan saw his siblings on nearly a daily basis.
Termination of Reunification Efforts
Meanwhile, despite 12 months of reasonable reunification services, the parents failed to participate regularly and make substantive progress. They made minimal progress toward alleviating the cause necessitating the children's out-of-home placement. The parents denied or minimized their past neglect and substance abuse. They also showed limited insight regarding the impact of their neglect and substance abuse as well as Jonathon's need for highly specialized care. In addition, they made excuses for their lack of compliance, which raised questions about the parents' credibility. Despite the parents' ongoing problems, they nevertheless continued to attend Jonathon's medical appointments.
Consequently, in October 2010, the juvenile court terminated reunification services for the parents and set a section 366.26 hearing to select and implement permanent plans for each of the children. In addition, the court reduced visits with Jonathon to once a week, due to his medical condition.
Permanency Planning Evidence
In advance of the section 366.26 hearing, the agency submitted a report in which it recommended legal guardianship for Jonathon's siblings with their current care providers. None of his siblings were likely to be adoptable. By contrast, an adoption assessment recommended that Jonathon was adoptable and his foster parents, who loved him very much, were interested in adopting him. All four children continued to live a few houses apart and would be able to continue visiting with each other.
The juvenile court eventually selected and implemented legal guardianship as the permanent plan for Jonathon's siblings. Mother does not challenge this decision.
Jonathon continued to receive chemotherapy for his leukemia and had greatly improved. His chemotherapy appointments were reduced to once a month. Also, due to the improvement in his health, Jonathon began preschool, which he enjoyed very much.
Supervised visits remained ongoing with the parents. The visits reportedly went well. The parents brought food and snacks for the children. At times, however, they continued to bring chips and sodas to the visits. It was also reported that mother appeared to be the disciplinarian during the visits as she was the one who continually corrected the children's negative behavior.
According to a Court-Appointed Special Advocate (CASA) report prepared around the same time, Jonathan was doing so well emotionally that he barely met the criteria for therapeutic services. He appeared to be very well adjusted to and very happy in his foster home. He developed a strong bond with his foster parents and had grown dependent on the foster parents to meet his physical, medical and emotional needs. Jonathon was particularly close to the foster father. Jonathon did not call his foster parents mom and dad, but rather Tia and Tio Papa or aunt and uncle Papa in Spanish. Jonathon also appeared to be close with his siblings, especially Jessica. The child's relationship with the parents as of early 2011 was also described as close. Jonathon appeared to enjoy his weekly supervised visits with them.
In a February 2011 addendum report, the agency described a recent meeting of the numerous therapists involved in this case. One therapist stated the parents had completed their parenting classes and showed improvement. Mother could discuss and share what she learned. Another therapist stated she saw improvement with mother's overall attitude. Another disclosed that mother no longer denied her drug use. Despite these improvements, the therapists added that mother might still be giving the children false hopes by making promises to them. The couple's second daughter reported she would get an IPOD and Jessica would receive a smart phone once they returned home. Earlier in the proceedings, mother reportedly had made unrealistic promises to the children about their return.
At an early February 2011 hearing, mother disputed the agency's permanency planning recommendation for Jonathon and requested a contested hearing. The agency meanwhile appeared to recommend that the court find Jonathan adoptable, but set out a future section 366.26 hearing for the child. The agency offered no explanation for its recommendation.
The court continued the matter and conducted an evidentiary hearing later in the month. The agency submitted the matter on the various reports before the court. The parents also testified.
According to mother, she and the father had been Jonathon's primary caretakers. Since his dependency, mother claimed she visited Jonathon once a week and had not missed any visits. Jonathon was happy to see her, called her "mama" and hugged her. He did not want to leave at the end of visits and asked to leave with mother. During visits, mother played with Jonathon and the other children. Mother also held Jonathon.
Mother felt she had a mother-son relationship with Jonathon. She cited the fact that he called her mommy and asked her questions, such as "You're my mommy, right?" and "When am I going to go back with you?" Mother also claimed she attended all of Jonathon's chemotherapy appointments. The appointments took three or four hours a piece.
Mother testified she had some issues about her husband's fidelity when the children lived at home and that was when she started using alcohol and drugs. She claimed her use of alcohol and drugs only affected her ability to care for Jonathon "a little bit because I just barely been starting." She would leave the house for two or three days at a time. She still believed she had been a good parent to Jonathon during the first three years of his life. She only started drinking and "getting high" around July or August 2009. She later admitted the drug she used was methamphetamine and that, years earlier, she had been arrested and jailed for packaging and selling controlled substances in her home.
In 1998 dependency proceedings, a juvenile court removed Jessica from mother's custody and awarded custody to the father.
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In closing argument, Jonathon's counsel asked the court to terminate parental rights and not postpone the matter. The siblings' attorney argued against termination, as did the parents' attorneys. In particular, mother's counsel asked the court to find Jonathon would benefit from a continued relationship with the parents as well as with his siblings and not terminate parental rights. After the court took the matter under submission, it ordered the agency to provide a complete adoption assessment of Jonathon and his foster parents under section 366.21, subd. (i)(1)(d)-(g).
In a final addendum report, the agency submitted an assessment of the eligibility and commitment of Jonathon's foster parents, as his prospective adoptive parents. (§ 366.21, subd. (i)(1)(d)-(g).) As there is no issue on appeal regarding the likelihood of Jonathon's adoption or his foster parents' status as his prospective adoptive parents, we do not summarize that evidence here.
The assessment also noted the following. The relationship between the siblings was very close. They were raised together and had significant common experiences as well as existing close and strong bonds with each other. Ongoing contact between the siblings was in their best interest. There was also some attachment between Jonathon and the parents. However, there would be no significant emotional detriment to Jonathon if parental rights were terminated.
An adoptions supervisor who prepared the assessment also made a recommendation "regarding visitation and permanent plan," which was adoption by Jonathon's foster parents and reducing visits between Jonathon and the parents to twice a month. The adoptions supervisor also assumed the matter needed to be continued for notice of the adoption recommendation.
At a subsequent hearing, the parties agreed there was no issue as to notice. Following additional argument, the juvenile court found Jonathon adoptable and terminated parental rights. As to mother's arguments that termination would be detrimental, the court disagreed. The court had no doubt that the parents loved Jonathon, but they had not met their burden of establishing termination would be detrimental to him. The court noted the parents had not been Jonathon's caregivers for some time and that the child looked to his foster parents as the parental figures. With regard to the sibling relationship, the court determined there was and would continue to be ongoing contact after termination of parental rights.
DISCUSSION
Mother contends the court erred when it declined to find termination would be detrimental to Jonathon's relationship with her and his sibling relationship. (§ 366.26, subd. (c)(1(B)(i) & (v).) She claims there was insufficient evidence to support a finding that termination would not be detrimental. We disagree.
To begin, mother argues an incorrect standard of review. Once a dependency case reaches the permanency planning stage, the statutory presumption is that termination is in an adoptable child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Consequently, it is the parent's burden to show that termination would be detrimental under one of the statutory exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) We do not review the juvenile court's decision for substantial evidence to prove a negative, which is, termination would not be detrimental.
Also, for this court to conclude there was an abuse of discretion, the proof offered must be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Such was not the case here.
In addition, once a juvenile court terminates reunification efforts, its focus shifts to the dependent child's needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the
norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Here, mother made no showing that Jonathon's needs for permanency and stability would be advanced by not terminating parental rights.
I.
The beneficial relationship exception in section 366.26, subdivision (c)(1)(B)(i), involves a two-part test; did the parent maintain regular visitation and contact with the child, and would the child benefit from continuing the relationship.
For the beneficial relationship exception to apply,
"[T]he parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs 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.) A juvenile court must therefore: 'balance ... 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.' (Id. at p. 575.)" (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Based on our review of the record, we conclude the juvenile court properly exercised its discretion in rejecting mother's argument. Mother did maintain regular visits with Jonathon and his siblings, and there was some evidence that Jonathon enjoyed those visits. However, mother had to demonstrate more than this to compel a finding that termination would be detrimental to Jonathon. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 [a parent must demonstrate more than pleasant visits or loving contact for the court to find detriment under the beneficial relationship exception].) Although, as the juvenile court found, mother clearly loved Jonathon, there was no evidence that Jonathon had such a substantial, positive emotional attachment to mother that he would be greatly harmed if mother's parental rights were terminated. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
There was mother's testimony that Jonathon asked about leaving with her or returning home to her. However, mother had a credibility problem throughout these proceedings and the court could properly find her testimony was self-serving. Also, there was conflicting evidence that Jonathon was doing so well emotionally that it was questionable whether he needed therapeutic services. He appeared to be very well adjusted to and very happy in his foster home. He also developed a strong bond with his foster parents and had grown dependent on the foster parents to meet his physical, medical and emotional needs. There was the adoption supervisor's assessment of some attachment between Jonathon and the parents, but once again there was no evidence that it was such a substantial, positive emotional attachment that he would be greatly harmed if mother's rights were terminated. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)
Along these lines, we observe a significant attachment of child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Such a relationship characteristically arises from day-to-day interaction, companionship and shared experiences. (Ibid.)Given the serious parental neglect that Jonathon had suffered while in the custody of mother, the juvenile court could properly reject any argument of a significant attachment, let alone one which outweighed the benefit of adoption.
In addition, mother argues Jonathon's age, the time he spent in her custody, the positive effect of their interaction, and his needs weigh in favor of preserving their parent/child relationship. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) We do not disagree with the use of such factors in evaluating the importance and benefit of a relationship. We nevertheless conclude the juvenile court could properly find on this record that those factors did not weigh in favor of finding termination would be detrimental to Jonathon.
Jonathon's very young age weighed in favor of termination. The time he spent in mother's custody also tells us little, especially given the overwhelming evidence that it was his sister Jessica, not mother, to whom he looked for parenting during his first three years. In addition, although there was evidence that Jonathon's interaction with his parents was positive following his removal, there was also evidence that mother in particular made inappropriate comments and gave the children false hope. Last, there was no evidence that Jonathon's special needs compelled an ongoing relationship with mother.
II.
For the so-called sibling relationship exception in section 366.26, subdivision (c)(1)(B)(v) to apply, a court must find:
"There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
"[T]he 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)"
Here, it is undisputed that Jonathon spent his first three and a half years with his siblings. According to the adoptions supervisor, he also shared significant common experiences with his siblings and had existing close and strong bonds with them, especially Jessica. Ongoing contact was also in Jonathon's best interest.
Nevertheless, the juvenile court could properly find that termination would not be detrimental to Jonathon because it would not substantially interfere with his sibling relationships. Fortuitously, Jonathon and his siblings live only a few houses apart and see each other almost daily. Jonathon's prospective adoptive parents and his siblings' legal guardians are also good friends. Despite the order for once-a-week sibling visits, these care providers for the children have made it a point that the children visit much more frequently with one another. To the extent mother claims something could happen in the future to cause an interference, she speculates. Given the care providers' history of assuring Jonathon and his siblings maintained near daily contact, we conclude the juvenile court did not abuse its discretion by rejecting mother's claim that termination would substantially interfere with the sibling relationship.
DISPOSITION
The order terminating parental rights is affirmed.