Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino CountySuper.Ct.No. J203666, Deborah A. Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
McKINSTER, Acting P.J.
Defendant and appellant Paulina R. (mother) is the natural mother of Cesar R. and Alize R. The juvenile court terminated mother’s parental rights as to Alize. Mother argues that the court erred in failing to find that either the beneficial parental relationship exception or the sibling relationship exception applied to prevent the termination of her parental rights. We affirm.
FACTS AND PROCEDURAL HISTORY
The initial segment of this statement is adapted from the record in an appeal (Paulina R. v. The County of San Bernardino (May 21, 2007, E042592) [nonpub. opn.]) in a related action:
The San Bernardino County Department of Children’s Services (DCS) filed a petition in September 2005 on behalf of Alize, who was seven months old, and Cesar, who was three years old, pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (e) (severe physical abuse of a child under five), and (g) (no provision for support). Alize had sustained severe physical injuries after being left in the care of mother’s boyfriend.
All further statutory references are to the Welfare and Institutions Code.
In the early afternoon of August 13, 2005, the boyfriend called mother to report that Alize did “not look[] good,” and that she was throwing up. When mother went home and saw Alize shaking, they took her to the hospital, where Alize continued to have seizures. Alize was transferred to another hospital. Medical examinations identified a possible subdural hematoma, a skull fracture on the left side of her head, and large retinal hemorrhage. Alize’s body movements and head/eye movements were not normal. Medical professionals deemed the injuries “abusive head trauma,” and a neurology consultant’s findings suggested “non-accidental trauma.” A public health nurse recommended that, upon Alize’s release, she should be placed in a home qualified to care for medically fragile children. Alize would need continued follow-up care in audiology, ophthalmology, neurology, physical therapy, and speech, among other services.
Mother gave several stories to account for Alize’s injuries. She appeared to be in denial that her boyfriend could have caused the injuries. Mother had also had a history of domestic violence with the father of her other child, Cesar.
The juvenile court ordered the children detained out of mother’s custody, and placed in a suitable home. DCS was ordered to provide reunification services to mother.
At the jurisdictional and dispositional hearing, in September 2005, the court found true allegations that Alize had suffered a skull fracture and retinal hemorrhaging while left in the boyfriend’s care. The court declared the children dependents of the juvenile court and ordered mother to participate in a plan of reunification services. DCS was to facilitate medical training for mother, to care for Alize’s medically fragile conditions.
Alize was discharged from the hospital in late September 2005. She was placed in a foster home for a medically fragile child. Although the maternal grandparents had been considered for placement, when the social worker disclosed the severity of Alize’s injuries, the maternal grandmother seemed surprised to learn that Alize would require full-time care and that she would require frequent doctor and rehabilitation appointments. Alize’s medical information showed a diagnosis of traumatic brain injury, skull fracture, left retinal hemorrhage, left side paralysis and seizures. She needed physical therapy, occupational therapy, and speech therapy, each two or three times each week. Alize required her caretaker to provide seventeen 10-minute therapy sessions per day. Even a month after discharge, Alize still needed around-the-clock “consistent and comprehensive” care. Because it was questionable whether the grandparents had the ability and resources to provide the extensive care Alize needed, it was agreed that Alize would remain in foster care.
In October 2005, mother was referred for psychological services. She kept her first appointment on November 3, 2005. Mother told DCS that she had begun parenting classes at an adult school, but provided no documentation. The social worker recommended providing medical training to members of Alize’s extended family. Mother was directed to attend all of Alize’s medical appointments.
By March 2006, mother had made substantial progress on her case plan. The social worker recommended returning Cesar to her care. Mother had completed a parenting program and several sessions with a psychologist. She had attended Alize’s medical appointments and her weekly therapy sessions. Mother had completed CPR training.
Mother still had not fully dealt with the severity and permanence of Alize’s injuries, however. Mother’s psychologist reported that mother initially “side-stepp[ed]” the issue of Alize’s permanent brain damage with an “avoidant, trivializing approach.” After nearly six months in a medically fragile home, Alize’s condition was still critical, with major developmental delays. Alize showed evidence of brain damage, but was able to make some progress in her therapy sessions. Under a daily exercise regimen with the foster mother, Alize was able to sit up with assistance, hold her bottle, roll over, track visually from right to left, and had rudimentary language capability. The public health nurse emphasized the importance of keeping Alize on anti-seizure medication, as further seizures could cause further brain damage.
The social worker developed a transition plan for Alize to be placed with the maternal grandparents. The social worker informed mother and the grandparents that “reunification with Alize will take a conservative and slow path [because of] the extent of Alize’s injuries and the effort that needs to be expended for her care.”
At the six-month review, in March 2006, the court found that mother had made significant progress on her case plan. The court found “a probability” that Alize could be returned to mother’s care within the next six months, and extended services and supervised visitation. The court approved the plan to transition Alize to mother’s care.
By September 2006, Alize was showing improvement in her physical and cognitive abilities. After continued intensive therapy, she was able to stand with braces, and to walk with a walker. She could sit independently, crawl, and pull herself to a standing position. The public health nurse reported that Alize’s continued progress was “dependent on conscientious adherence to therapy and medical protocols.” Alize would need lifelong treatment, with changes in her needs as she grew up. The public health nurse stated, “The caregivers must be cognizant of this important issue, as she will require caregivers that can actively and professionally advocate for Alize’s best interests.”
Despite 12 months of services, however, mother had “not shown that she can manage or competently care for Alize.” The physical therapist’s report stated that, despite encouragement, mother had been inconsistent in using proper handling techniques with Alize. Mother had been retrained several times on home exercises for Alize. Both the physical therapist and the foster caretaker reported that mother could not properly perform Alize’s daily exercises. It had been repeatedly documented over the previous year that mother had not been able to comprehend or perform the exercises. In addition, Alize had been returned from visitation without her leg braces because mother had difficulty putting them on correctly. Mother became upset when Alize displayed discomfort during physical therapy, and she became angry when she was asked to attend to the task. Mother also was encouraging Alize to stand and walk in a manner contrary to medical advice. The social worker opined that mother did not understand the “systematic process” of physical therapy.
The social worker and the public health nurse were concerned that mother’s denial of the extent of Alize’s injuries and future functioning problems would impair her ability to care for Alize alone. Mother was immature, and also had another child, Cesar, to raise. The earlier phased plan to return Alize to mother’s care under supervision of the maternal grandparents failed because the grandparents did not attend Alize’s physical therapy or doctor appointments. Instead, they relied on mother to inform them of Alize’s progress. Mother’s history of minimizing problems and displaying an unrealistically positive outlook prevented her from addressing either Alize’s prognosis or problems with Cesar’s behavior. Mother had been inconsistent in keeping her psychotherapy appointments, and mother’s counselor concurred that mother tended to minimize genuine problems.
Thus, although mother had nominally completed most of the requirements of her service plan during 12 months of services, the social worker recommended terminating services. The social worker recommended a permanent plan of long-term guardianship with the grandparents, who should “attend the therapy and medical sessions” and “prepare to be the primary caretakers for Alize.”
Mother objected to the social worker’s recommendations.
The Department of Mental Health wrote a letter to the social worker asking that mother no longer attend the physical and occupational therapy sessions. “The objective of the therapy sessions is for Alize to work on various tasks such as walking with the walker, reaching for small object[s] with the left hand, etc. [Mother] usually distracts Alize and engages Alize to play. We feel that [mother] is a distraction for Alize, and Alize exhibits undesirable behavior when [mother] is present.” The court vacated its order for mother to attend the therapy sessions. Similarly, the court accommodated the request of Alize’s ophthalmologist to bar mother from attending the child’s surgery. The surgery would be stressful; Alize would need the support of her primary caregiver. The child had more behavioral problems when mother was present, which would lead to greater pain or undue complications from the operation.
The social worker’s report dated May 8, 2007, recommended adoption as the permanent plan for Alize. She was young, two years old, and medically fragile. The foster caretakers had been dedicated to Alize since she was eight months old and were committed to adoption. They were well trained in meeting Alize’s medical and other needs, and had met those needs consistently.
Alize’s condition resulted from non accidental trauma, causing skull fracture and retinal hemorrhaging. She had a seizure disorder, delays in speech and walking, and blindness in one eye, among other difficulties. She had made substantial progress under the care of the foster parents, coordinated with Alize’s doctors and therapists.
The court found that Alize was likely to be adopted and terminated mother’s parental rights. The court expressly considered and rejected the beneficial relationship and sibling relationship exceptions to the termination of parental rights.
Mother appeals contending that the court erred in failing to find these exceptions applicable.
ANALYSIS
I. Standard of review
Appellate courts have differed over the appropriate standard of review: substantial evidence (In re Zachary G. (1999) 77 Cal.App.4th 799, 809) or abuse of discretion (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351). In practical terms, there is little difference between these tests when applied to the question of the applicability of one of the enumerated statutory exceptions to the termination of parental rights. “ ‘Evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling . . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if it finds that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that [it] did.’ ” ’ ” (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1351.)
II. The beneficial relationship exception did not apply
Mother argues that substantial evidence supports a finding that the parental benefit exception should apply. Section 366.26, subdivision (c)(1)(B)(i), formerly subdivision (c)(1)(A), applies where “the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Here, mother did visit consistently with Alize, but she failed to bear her burden of showing that Alize would benefit from a continued relationship. Mere pleasant visits are not enough, interaction between a natural parent and child will always confer some incidental benefit to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Rather, the parent must occupy a parental role in the child’s life. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) “[T]he 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.” (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)
The balancing tests here clearly favored the court’s determination. According to the social workers’ observations, during visitations Alize was happy to see mother, but not at all distressed when mother left. The length of time Alize had spent in mother’s care militated against any special bond. The foster parents had cared for Alize from the age of eight months to two years. Despite frequent and regular visitation, extensive training and services, parenting classes, individual psychotherapy, and many opportunities, mother failed to gain any insight into Alize’s medical condition and could not competently recognize or cope with her special needs. As soon as the court had granted unsupervised visitation, Alize suffered another seizure while in mother’s sole care. Mother failed to seek immediate medical assessment and delayed reporting the incident. Both the physical therapists and Alize’s ophthalmologists sought court orders to restrict mother’s access to Alize, as mother’s behavior was distracting, counter-productive, and detrimental to the treatment goals.
The benefits Alize would gain from a stable adoptive home far outweighed her relationship with mother; mother still remained an overall detriment to Alize and posed serious risks to the child’s health and well-being.
In her reply brief mother argues that she “occupied a parental role” toward Alize, and was thus more than a friendly visitor, because she “ensured that Alize got to all her medical appointments and therapy from the onset of the case until the end of June 2007,” she “drove four times per week to various medical appointments,” she “drove the child to the grandmother’s for training with her grandmother,” and she helped in “teaching Alize to walk, to make her way upstairs, to strap on her braces and do other care giving tasks for Alize.”
Mother has simply recharacterized the evidence in her own favor, rather than regarding the evidence in the light most favorable to the judgment. She has ignored the evidence that, even after many months of training, mother distracted from Alize’s therapy, and obstructed rather than facilitated it. She has ignored evidence that she returned the child from visitation minus her braces because mother had found them too difficult to put on. She may have taken the child to the grandmother’s home for care giving instruction, but the overwhelming weight of the evidence in the case was that neither mother (who did attend appointments) nor the grandmother (who did not attend appointments) successfully learned appropriate care giving techniques or understood the proper vigilance and interventions necessary to protect the child.
Mother argues that she “did not ever believe that Alize was in any medical difficulty during her unmonitored visits,” and insists that “[t]he statements incriminating mother were based on misunderstanding of mother’s own statements.” This claim admits both too much, and not enough. Mother’s failure to admit what had happened, and to properly recognize and respond to Alize’s condition, was a major factor in the case from the beginning. To say that mother “did not ever believe that Alize was in any medical difficulty” is part of the problem. The other part of the problem was mother’s failure to respond when she knew, or should have known, that a response was necessary. Mother excused her own behavior as to the seizure-like symptoms during the visit, saying that she had checked Alize’s pulse and her eyes, and that the child’s functions seemed normal. Mother also flatly denied, however, that she had ever been told that she should report any seizure-like activity immediately. This testimony seriously undermined mother’s credibility.
It was part and parcel of mother’s history of denial and minimization. Mother steadfastly remained in denial that her former boyfriend had done anything to cause Alize’s injuries. She expressed no opinion overtly, but proffered a babysitter to blame instead for the child’s fractured skull and other medical consequences. Mother consistently failed to recognize or accept the severity of the child’s condition. She never did properly learn Alize’s exercise regimen. Mother betrayed little understanding of the depth of Alize’s injuries and the real requirements of her care.
In short, mother’s evidence does not establish such a beneficial and parental relationship with Alize that its preservation outweighed the child’s need for permanence and stability. Rather, mother’s claim here simply reinforces the risk of danger which mother still posed to the child.
The court did not err in finding that the beneficial parental relationship exception did not apply.
III. The sibling relationship exception did not apply
Mother contends that the trial court erred in failing to find that the sibling relationship exception applied. Section 366.26, subdivision (c)(1)(B)(v), formerly subdivision (c)(1)(E), applied if “[t]here 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 . . . as compared to the benefit of legal permanence through adoption.”
Mother argues that Alize’s relationship with her half brother, Cesar, qualified as such a significant sibling relationship. We disagree.
Alize had been removed from mother’s care at age seven months. She was placed separately in a medically fragile placement because of her ongoing special needs. Mother was able to reunify with Cesar. Alize and Cesar had not lived in the same home for any appreciable time. Although mother brought Cesar with her to visits with Alize, and although the children were happy to see one another, their relationship was that of playmates, not siblings. When the foster mother brought her older child to visits, Cesar played with the older child, not with Alize.
Mother points to Cesar’s stipulated testimony that he attended visits with Alize and mother, that he was bonded to Alize, that their interactions were appropriate, and that he did not want Alize to be adopted. The issue was not whether Cesar was bonded to Alize, however; it was whether Alize was bonded to Cesar. “[T]he court may reject adoption . . . only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling.” (In re Celine R. (2003) 31 Cal.4th 45, 49-50.)
Mother’s reliance on In re Naomi P. (2005) 132 Cal.App.4th 808, is also misplaced. There, the siblings had had frequent overnight visits for over three years. The older children spent a great deal of time with their baby sister. They played together, ate together, and slept together in the same home—a bonding experience for all the siblings. There was no such extensive bonding experience between Alize and Cesar here.
The court here properly found that the sibling relationship did not apply.
DISPOSITION
The order terminating mother’s parental rights to Alize R. is affirmed.
We concur: GAUT, J., KING, J.