Opinion
A133140
03-07-2012
In re T.S., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. T.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HJ07008258)
Appellant T.S. (mother) appeals from an August 29, 2011 juvenile court order, which terminated her parental rights after finding that her child was likely to be adopted. (Welf. & Inst. Code, § 366.26.) She argues that the court erred in failing to apply the parent-child relationship exception to prevent termination of her rights and her child's adoption. (§ 366.26, subd. (c)(1)(B)(i).) We reject this argument, and affirm.
All further unspecified statutory references are to the Welfare & Institutions Code.
FACTS
We recite only those facts as are necessary to give context to the issue raised on this appeal.
T.S. (hereafter the child), who was born in January 2005, first became a dependent of the juvenile court based on a dependency petition filed on October 12, 2007, by the Alameda County Social Services Agency, Children and Family Services (hereafter the Agency). At that time, the almost three year old child was living with her mother and maternal grandfather. The petition alleged that the child was being neglected by mother, who was abusing drugs and had experienced delusional ideation that led to a section 5150 hospitalization. On December 5, 2007, the juvenile court declared the child a dependent of the court and the Agency was directed to provide family maintenance services to mother and child. After eleven months of services, mother managed to make significant progress in addressing the problems that led to the dependency, and the court dismissed the matter.
At the time of the child's birth, mother was married to a man who was later found not to be the child's biological father. Mother named another man as the child's alleged biological father. The child's alleged biological father is not named on the child's birth certificate and he has not established legal paternity. He resides in Honduras and has never met the child. By its August 29, 2011, order, the juvenile court terminated the parental rights of the child's alleged biological father, and all unknown fathers. The child's alleged biological father has not appealed from the order.
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However, about seven months later, in mid May 2009, police found mother in a severely psychotic state and she was again hospitalized. On July 2, 2009, the juvenile court again declared the child a dependent of the court. The child was placed in the care of her maternal grandfather, with the understanding that he would not allow mother to return to live in his home. After her discharge from the hospital, mother moved into a residential home to address her drug and mental health issues, and she was given services to reunify with the child. While the child was in the maternal grandfather's care in February 2010, mother expressed concerns that he may have molested the child. "Multiple investigations found no disclosure or evidence to support" the allegation against the maternal grandfather. However, in May 2010, the maternal grandfather was found to be intoxicated while the child was in his care. On June 2, 2010, the Agency filed a supplemental petition (§ 387) seeking to change the child's placement to a foster care home because her grandfather was no longer able to care for the child. On June 15, 2010, the juvenile court found that the child's placement with her grandfather had not been successful despite the Agency's reasonable efforts to avoid the need for removal. The Agency took custody of the child and continued to provide mother with family reunifications services. Because of mother's success in remaining drug free and meeting the requirements of her case plan, on September 15, 2010, the child was returned to her custody with family maintenance services.
However, two months later, the Agency filed another supplemental petition (§ 387) after mother had been arrested and later hospitalized "for being under the influence and mental health concerns." At the hearing on the supplemental petition, mother submitted on the basis of the Agency's report. The court found by clear and convincing evidence that mother should be denied further reunification services, and scheduled a section 366.26 hearing to determine the child's permanent placement plan. The Agency was authorized to arrange for supervised visits between mother and child "deemed safe and appropriate and consistent with the child's well-being."
After the child's latest removal in November 2010, the Agency arranged for once-a-month supervised visits between mother and child. The first visit was on December 29, 2010. Mother and child enjoyed the visit, they played together and looked at pictures, and the child separately easily from mother at the end of the visit. On January 26, 2011, the child had a visit with her mother and maternal grandparents to celebrate the child's birthday. The child seemed comfortable and happy, engaged equally with all three adults, and she did not show any emotion after being informed that the visit was almost over. In February 2011, mother began having weekly phone calls with the child. During one of the February calls, mother told the child that she was going to court and doing everything she could to have the child returned to her. The foster parent intervened and asked mother not to discuss this topic with the child. The Agency's social worker also told mother that it was inappropriate to talk to the child about the court proceedings; mother "did not agree." The child had an enjoyable visit with mother on February 24, 2011.
Several relatives, all of whom resided out of state, came forward to be considered as possible permanent placements for the child. The family came to a consensus that the child's great-aunt in Minnesota was the most appropriate placement. Mother stated the great-aunt was the only relative that she would trust with the child, but mother did not want out-of-state placement as it would interfere with visitation. Nevertheless, the juvenile court approved the placement on March 3, 2011.
When told about the move to Minnesota, the child "said that she was excited and happy to live" there. At age six, the child did "not understand adoption as such" and she had questions about why she was moving, which were answered by the Agency's social worker, mother, and the child's therapist, "in an age-appropriate way." Before the move to Minnesota, mother had a last visit with the child supervised by the child's therapist. Mother "used this time to create a positive transition for [the child], talking about the move to Minnesota, answering [the child's] questions, and saying a heartfelt goodbye. [The therapist] stated afterward, 'Mother's attention to her child's needs was notable, as this [move out of state] was an extremely painful and contested decision.' "
On March 24, 2011, the child was moved to the home of her great-aunt and great-uncle in Minnesota, and mother and child had weekly telephone calls. While the great-aunt wanted to change the telephone calls to biweekly, the Agency did not agree. The child "adjusted well to placement in the great-aunt's home. She [was] enjoying her new school and [was] affectionate and playful with the family." This included her great-aunt, great-uncle, and their four sons, ages 9, 13, 15, and 17. However, once the child was moved, "relations [had] become strained between the great-aunt and the mother. The mother stated to the great-aunt that [the child] would 'never call her [the great-aunt] Mommy,' and that the great-aunt was 'disrespecting' [the child] by not having regular phone calls with the mother. The great-aunt found this to be upsetting," and stated that she would not allow any contact between mother and the child if parental rights were terminated.
On June 20, 2011, at the Agency's request, the juvenile court approved the removal of the child from her great-aunt's home and the placement of the child in the Texas home of her maternal grandmother, who was divorced from the child's grandfather. The child was returned from Minnesota and placed in a foster care home in Alameda County on July 15, 2011. The Agency proceeded to arrange to place the child in the home with her maternal grandmother. By August 22, 2011, the maternal grandmother had made a firm decision to adopt the child. The Agency made a request for approval of the grandmother's home as an adoptive placement.
On August 29, 2011, a section 366.26 hearing was held to adjudicate a permanent plan for the child. The Agency submitted the matter on its reports that had been filed in court, and a report of a psychological evaluation of the mother that was done in April 2010. The child's counsel did not call any witnesses, but requested that the court consider any psychological reports that were in the court's file.
On direct examination, mother testified that she thought the child would be harmed by the termination of parental rights and adoption because they were "so attached" and the child said "she wants her mommy and wants to be with her mommy." Mother believed that if her rights were terminated and she had no contact with the child until she attained the age of eighteen, it would be "so sad. It seems cruel. . . . It would be devastating. That is too long." However, she and the child "would stay bonded anyway. [Mother was] very secure in [their] relationship. Although [the child] would be completely deprived of the opportunity to . . . live a normal family life" and the child's "security, independence, and strength would totally diminish over time." Mother believed that she had maintained regular visitation and contact with the child, and that the child would benefit from continuing their relationship. Mother described her recent visits with the child, stating that "it seems as though our bond just keeps getting stronger when I see her. It doesn't matter if it's been a while. We were together for so long you know. She's not a baby. I raised her." When asked if the child would understand a complete break in visits if parental rights were terminated, mother testified that the child had gone through some emotional difficulties while she was not living under mother's care. Every time mother saw the child during this time, the child opened up more emotionally and her healthy mannerisms were coming back. When the child raised questions about why she was not with mother, mother explained that mommies and their children had bonds that did not dissipate; and the child had a strong sense of security because of the mother's open communication. As between adoption and legal guardianship, mother believed the child's maternal grandmother should be appointed legal guardian so that the child could have a chance to be with mother and have a normal family connection that she deserved. Mother believed that if she could not see the child and continue to instill a sense of security in the child through communication, morals, and family traditions, it would not be in the child's best interest.
On cross-examination, mother was questioned as to how she was currently addressing her past history of drug use. Mother had a sponsor and communicated with people in twelve step programs, but she was not currently in such a program and rarely attended meetings because the twelve step program was not effective for her. Nor was she currently in any outpatient program for drug rehabilitation because it had taken her a while to get to the point where she could focus on finding something that worked for her. She was not currently taking methadone, but she was taking several prescription drugs for depression, anxiety, a slight heart murmur, and sleep.
Mother recalled being hospitalized four or five times. During those hospitalizations, she was diagnosed as being bipolar. However, other doctors diagnosed mother as suffering from depression, anxiety, and a mood disorder not otherwise specified, but not bipolar disorder. At the request of the Agency, mother submitted to both a psychiatric and psychological evaluation. Mother denied that she ever heard that the doctor who evaluated her in 2008 had diagnosed her with "antisocial personality disorder," that she had "a strong oppositional tendency," "lack[ed] empathy," and, was "manipulative and exploitative in [her] interpersonal relationships," and had "an immediate need for gratification." Mother did not think she had reviewed the evaluation with the doctor because she thought she would have remembered "such a strong opinion," and she did not recall anything "that severe" by the doctor. Mother did recall that the doctor who evaluated her in 2010 had diagnosed her as suffering from "anxiety, . . . dysthymic disorder . . ., [and] polysubstance dependency . . . ." Although the doctor categorized her "polysubstance dependency," "as a sustained partial remission," mother did not recall that the remission was described as "sustained partial." Mother did not recall that the doctor had not ruled out or excluded as diagnoses "delusional disorder, bipolar, and substance-induced mood disorder," but mother conceded "it sounds vaguely familiar." When asked about the doctor's diagnosis that mother was suffering from "personality disorder not otherwise specified and histrionic and antisocial features and narcissistic, borderline depressive, dependent, paranoid, and passive-aggressive traits," mother recalled that they had discussed those things about herself.
Mother further testified that while the child was living with her maternal great aunt in Minnesota from March 2011 to mid-July 2011, mother did not see the child in person and had monitored telephone conversations with the child on two or three occasions because that was all that the aunt would allow. Mother denied that her aunt had cut off contact between mother and the child after the second or third telephone call because the aunt was concerned about the way mother was conducting herself in those conversations with the child. Mother thought that the aunt had cut off the telephone conversations because "it was the date and time in which she had the right to make the decisions on when the phone calls would stop." According to mother, her telephone calls with the child went "[v]ery well." Mother was also asked whether the child's great aunt had decided to return the child because the great-aunt was under the impression that mother was planning to move to Minnesota and the great aunt would have difficulty keeping mother away from the child and the great-aunt believed mother was a bad influence on the child. Mother replied, " I would not know all of her reasoning. We didn't communicate enough. She wouldn't communicate with me." Since the child's return to Alameda County, mother had seen the child once a week on a weekend day, which visits were supervised by mother's father. Mother believed the child would benefit from a stable home and had suffered harm from being moved around between different homes. However, she thought it was primarily being removed from her care so suddenly that was more harmful to the child.
On further cross-examination regarding her conduct that led to the removal of the child in May 2009 and November 2010, mother testified that the allegations in the petitions sustained by the juvenile court were not correct. Mother also believed that investigations into allegations that her father had abused the child had been stopped prematurely because "they only have a tendency to do one . . . interview and during that . . . interview, [the child] did not disclose anything, as far as I know. [The child's] very young. It took a long time to disclose it to me."
After considering the admitted documents, mother's testimony, and counsels' arguments, the juvenile court found by clear and convincing evidence that it was likely the child would be adopted and mother's parental rights should be terminated. In finding that the mother had failed to meet her burden of establishing that the parent/child relationship exception should be applied in this case, the juvenile court stated: "I've heard nothing other than from the mother as to the beneficial relationship. Nothing from any other relative. Nobody else. No relative. Either [mother's] own biological mother or the great aunt or her father. [¶] [Mother's] testimony itself is consistent with the psychological diagnosis of manipulation, narcissism, and antisocial personality. Unfortunately, and once again, . . . many of her answers when she was confronted, obvious answers that were a 'yes' answer and acknowledgement of a fact detrimental to her, she did not want to admit and was evasive. [¶] . . . I presume she complied with the case plan except for the relapses. [¶] . . . I believe there is the sense that she is devoted to the child, she does very much love the child, and she did try to comply with the case plan to get the child back and her interests are good. But . . . [mother's] personality is a detriment to the relationship [as] . . . evidenced by the conflict she's had" with both the maternal grandfather, accusing him of abusing the child, and the maternal great-aunt, from which the court could "greatly infer" that mother's motive was to get the child back. The juvenile court also rejected mother's request that legal guardianship be chosen as the child's permanent plan finding that "the best predicator" of mother's future behavior was her "past behavior," and "[i]f there's a caregiver and there's badmouthing of the caregiver, it's very disruptive to the child and confusing. [¶] . . . That cannot happen if there is to be visits. . . . That's not a positive alternative for the child." The juvenile court concluded that although "there would be some measure of benefit" to continuing the parent/child relationship, the statutory exception could not apply because of the "the psychological damage that can be done to the child with conflict between the caregivers and the mother," and mother's "demonstrated erratic behavior" and mental health diagnosis.
Mother filed a timely notice of appeal from the August 29, 2011 order terminating her parental rights.
DISCUSSION
At a section 366.26 hearing, once a juvenile court has determined by clear and convincing evidence that a child is adoptable, it is required to terminate parental rights unless the parent can establish that there is a compelling reason for concluding that termination would be detrimental to the child because (1) a parent has maintained regular visitation and contact with the child and (2) the child would benefit from continuing the relationship. (§ 366.36, subd. (c)(1)(B)(i).) We review the juvenile court's ruling on placement for an abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [in accord].)
Here, mother does not challenge the juvenile court's finding that the child is adoptable. Mother argues only that she met the requirements of the parent/child relationship exception to termination by presenting evidence that she maintained regular visitation and contact with the child and that the child would benefit from continuing the relationship. By her arguments, however, mother misconstrues our limited review power. "[W]hen a court has made a custody determination in a dependency proceeding, ' "a reviewing court will not disturb that decision unless the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' [Citations.] . . . 'The appropriate test for abuse of discretion is whether the [juvenile] court exceeded the bounds of reason.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) " 'Broad deference must be shown the [juvenile court] judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the [juvenile] court's action, no judge could reasonably have made the order that he did.' . . ." ' [Citations.] . . . The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of appellate court deference. [Citation.]" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) To reverse the order under review, we would have to conclude that the juvenile court's discretion could be exercised in only one way, compelling a finding in favor of mother as a matter of law. We cannot so conclude in this case. "Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting interferences in the absence of a rule of law specifying the inference to be drawn." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) "It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony." (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878.)
As explained by the court in In re Angel B. (2002) 97 Cal.App.4th 454, a case cited by mother, "[t]o overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.]" (Id. at p. 466.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This is not such a case. But for mother's testimony, which was rejected by the juvenile court, there was no evidence that the child would be harmed, let alone greatly harmed, if parental rights were terminated so that the child could be adopted.
Additionally, we see no abuse of discretion in the juvenile court's rejection of legal guardianship as the child's permanent placement plan. A "child has a compelling right 'to [have] a placement that is stable, permanent, and that allows a caretaker to make a full emotional commitment to the child.' [Citation.] Adoption is the Legislature's first choice because it gives the child the best chance at such a commitment from a responsible caretaker. [Citations.]" (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) "Unlike adoption, other permanency options are not equivalent to the security of a permanent home. [Citation.] Even guardianship is 'not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 231.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent. [Citation.]" (In re Angel B., supra, 97 Cal.App.4th at p. 466.)
In sum, we conclude that the juvenile court acted within its discretion when it found that the child's "need for a safe, stable, and permanent home outweighed the benefit [s]he would derive from a continued relationship with" her mother. (In re Dakota H., supra, 132 Cal.App.4th at p. 231.) Because mother did not meet her burden of establishing a compelling reason for applying the parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)), we see no reason to disturb the order terminating parental rights and freeing the child for adoption.
DISPOSITION
The order filed on August 29, 2011 is affirmed.
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McGuiness, P.J.
We concur:
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Siggins, J.
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Jenkins, J.