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In re B.G.

California Court of Appeals, Second District, Eighth Division
Apr 24, 2009
No. B210663 (Cal. Ct. App. Apr. 24, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County. No. CK67542 Stanley Genser, Referee.

Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.


BIGELOW, J.

I.C. (mother) appeals from an order terminating her parental rights to four-year-old B.G. and two-year-old P.H. On appeal, mother argues: (1) substantial evidence did not support the trial court’s finding that the children are likely to be adopted; and (2) the trial court should have applied the beneficial relationship exception to termination of parental rights set forth at Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). We affirm the juvenile court’s order.

All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2007, the Los Angeles Department of Children and Family Services (DCFS) removed B.G. (born in October 2004) and her half-sister P.H. (born in February 2006) from their maternal grandparents. B.G. and P.H. were found living with the grandparents in a filthy shed that had been converted into a single room. The shed had no stove, toilet, refrigerator, or running water. Dirt and debris, including sharp objects, covered the floor. The shed’s only electricity came from a long extension cord plugged in at the adjacent house. The cord and a power strip hung from the ceiling of the shed by a wire hanger. Pots containing spoiled and moldy food were within reach of the children. The grandparents cooked on a barbecue grill that had scorched the wall and burned a hole in the roof of the shed. Children’s toys sat under the grill next to a propane tank, while a toy telephone lay atop a gallon of bleach. The residents of the adjacent house told police that several times they found the children alone in the shed, hungry and crying. The two girls were visibly dirty and smelled.

The grandparents told a DCFS social worker that mother had dropped the children off three days earlier and they did not know where she was. Both grandparents had outstanding warrants and were arrested. When mother arrived at the police station, she told the social worker that her parents’ home was “okay with [her].” Mother said it did not matter where she kept her children; it was her choice; and that the girls should not be detained because of a filthy house.

The grandfather had an outstanding arrest warrant for possession of methamphetamines, while the grandmother had an outstanding warrant for driving without a license.

On March 27, 2007, DCFS filed a petition alleging that B.G. and P.H. came within the jurisdiction of the juvenile court under section 300, subdivision (b). The juvenile court detained the children and ordered reunification services for mother. Mother later pled no contest to the petition. In June 2007, mother did not appear for the contested disposition hearing. The court found that there was no reasonable means to protect the children without removing them from mother’s physical custody, and ordered a suitable placement. The court further ordered a case plan requiring that mother participate in individual counseling with a DCFS-approved therapist; complete a DCFS-approved parenting program; and participate in random alcohol and drug testing. The juvenile court ordered DCFS to provide mother with monitored visits with the children at least twice per week, and to give mother reunification services.

In May 2007, mother pled guilty to a criminal misdemeanor for possession of drug paraphernalia. The criminal court diverted the charge and ordered mother to complete a drug education program.

The court also ordered that both children be assessed by the Regional Center. There were concerns that B.G. might be autistic. She had limited speech, cried often, and required a lot of attention. P.H. exhibited no emotional or behavioral problems. Both children had been exposed to high levels of lead.

Over the next 15 months, mother only partially complied with the case plan. Mother completed a parenting program. She enrolled in individual counseling but only sporadically attended sessions. She was eventually terminated from the counseling program for nonattendance and had to re-enroll with another agency. Mother submitted to five random drug tests, but missed all subsequent drug screenings. She was expelled from her substance abuse program for nonattendance. Mother re-enrolled in the program, but was expelled again for nonattendance and for testing positive for amphetamines and methamphetamines in March 2008. Mother did not maintain regular contact with DCFS. She did not establish a stable residence. Over the 15 months, DCFS reported that mother lived in her car, was evicted from an apartment, and at times was living with her parents. She also failed to appear for some hearings in the dependency matter.

The juvenile court ordered that mother submit six consecutive negative tests with no unexcused misses.

Mother did not show up for the contested disposition hearing or a later review hearing at which the juvenile court terminated reunification services.

Although mother visited B.G. and P.H. throughout the 15-month period, she missed several planned visits without explanation, often arrived 10 to 45 minutes late, and sometimes left up to an hour early. The social workers monitoring the visits reported that the children generally responded positively to mother. Mother typically brought snacks and toys for the children, played games with them, and read stories. However, mother also behaved inappropriately. She told the children they were brats, selfish, too sensitive, and mean. Mother made these comments when the girls refused to hug or kiss her, cried, or if they did not want to share with her. At several visits, mother complained that she was tired and wanted to lie down, and she tried to coax the children to lie down with her. P.H. spent most of the visit time playing by herself or interacting with the monitor. On several occasions, the monitoring social worker felt it necessary to intervene in mother’s interactions with the girls.

Because the monitor had to travel a significant distance to transport the children to the visit site, mother had to confirm her visits on a weekly basis. On numerous occasions, mother’s failure to confirm in advance prevented the visits from taking place.

For example, at one visit mother brought a water gun into the visit room and squirted the girls. P.H. cried, and B.G. pulled away. The social worker had to tell mother to stop. During another visit, neither girl wanted mother to hold or hug her. When they pushed away and squealed, mother told the girls that if they did not give her a kiss, she would not give them a snack. The social worker advised mother that this was not a good idea. At a different visit, B.G. began to yell, hit, and pinch mother. Mother told B.G. to stop, but did nothing else to respond to B.G.’s behavior. P.H. tried to poke mother in the eye with a hairbrush. Mother put the brush behind her, but P.H. tried to get it. Finally, the social worker took the brush away and told B.G. that she needed to be a good listener and be careful not to hurt others. At two different visits, the monitoring social worker had to prompt mother to change P.H.’s diaper or suggest that mother take P.H. to the bathroom.

In the meantime, B.G. and P.H. were living in a foster home. The foster parents and children developed a bond and the couple wanted to adopt both girls. In December 2007, DCFS completed adoption assessments for both children. The assessment for B.G. noted that she related well to her caregivers, but also that she needed a Regional Center assessment, and further noted possible concerns that she was learning disabled and had a speech delay. A doctor had previously diagnosed B.G. with Autism Spectrum Disorder. However, the assessments reported that B.G. and P.H. appeared physically healthy, were personable, ate well, played independently, and related well to caregivers and peers. The assessments concluded that the children were likely to be adopted.

In June 2008, DCFS filed a status review report with more information about the children’s prospective adoptive placement. According to the report, the children had been living in the prospective adoptive parents’ home since September 2007. The prospective adoptive parents provided a “warm” and “loving” environment for B.G. and P.H., and were committed to the girls’ long term care. The couple was actively involved in B.G.’s evaluations and interview with the Kern Regional Center, and was complying with the children’s case plan. The couple wanted to adopt B.G. and P.H. The girls had bonded with the couple, calling them “mommy” and “daddy.” The couple not only provided for the girls’ basic needs, including “medical necessities,” but also had nicknames for the children and took them to family gatherings, as well as on regular vacations and outings.

In fact, during one visit with mother, B.G. explained that P.H. was fussy because she wanted “her dad” and the foster mother.

Although mother contested the proposed adoptive placement, she initially failed to appear for the section 366.26 hearing. The court found that mother’s relationship with the children did not support an exception to termination of parental rights, and that the children were adoptable. The court terminated mother’s parental rights. At 10:00 a.m.—one and a half hours after the scheduled hearing time—the court reopened the matter because mother had arrived. Mother testified that she had a very strong bond with B.G., but she did not say the same about her bond with P.H. Mother felt that adoption would be devastating for the children because they loved her and she loved them.

The court also terminated the parental rights of each child’s father. The fathers are not parties to this appeal.

Mother explained that she had travelled to the court by bus from Sun Valley, 40 or 50 miles away from the courthouse. The trip required that she transfer buses three times.

The juvenile court again held that there was clear and convincing evidence that the children were likely to be adopted. The court further rejected mother’s argument that the beneficial relationship exception applied. The court noted that mother had never fulfilled a parental role with the children and that there was no clear and convincing evidence that any detriment to the children from terminating parental rights would outweigh the benefits of adoption. The court concluded that it did not find mother’s description of her relationship with the children credible, and “it’s the best interest of the children not the best of interest of the mother that the court has to consider.”

This appeal followed.

DISCUSSION

I. The Adoptability Finding

Mother argues that the juvenile court lacked clear and convincing evidence that B.G. and P.H. were likely to be adopted. The argument rests in part on the assertion that the adoption assessment did not comply with section 366.21, subdivision (i)(1)(C) and (D). However, mother did not challenge the adoption assessment in the juvenile court. Although mother may challenge the sufficiency of the evidence supporting the adoptability finding on appeal, she has forfeited any objection to the adoption assessment by failing to raise it below. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317 (A.A.).) However, we address the substantial evidence argument.

In re Valerie W. (2008) 162 Cal.App.4th 1, does not require a different result. In Valerie W., the appellant challenged the adequacy of the adoption assessment in the juvenile court. (Id. at p. 7; see A.A., supra, 167 Cal.App.4th at p. 1317.)

“The court may terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. [Citations.] In determining adoptability, the focus is on whether a child’s age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); [citation].) To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent ‘ “waiting in the wings.” ’ [Citation.] Nevertheless, ‘the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ [Citation.]” (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.).) We apply a substantial evidence test when reviewing a juvenile court’s finding that a minor is likely to be adopted.

Mother challenges the juvenile court’s adoptability finding primarily on the ground that there was insufficient evidence of B.G.’s potential medical problems and developmental delays. Yet, substantial evidence indicated that B.G. and P.H. were likely to be adopted because they were “generally adoptable.” (A.A., supra, 167 Cal.App.4th at p. 1313; R.C., supra, 169 Cal.App.4th at p. 492.) Both B.G. and P.H. are under five years old. DCFS reported that P.H. smiled and laughed with the foster father and enjoyed playing with him and being physically active. DCFS also reported that B.G. had bonded with the foster mother, would sit close to her, and had her “own way” of communicating with the foster mother. B.G. also liked to spend time playing with the foster mother. According to the adoption assessment, P.H. appeared physically healthy and developmentally age appropriate, was personable, ate well, played independently, and related well to caregivers and peers. The adoption assessment for B.G. stated that she also appeared physically healthy, was personable, played independently, ate well, and related well to caregivers and peers. While a doctor’s initial evaluation of B.G. suggested that she had autism spectrum disorder, the same evaluation noted that she had “apparently improved tremendously during placements in foster care.” All of the above supported the juvenile court’s determination that B.G. and P.H. were likely to be adopted.

Mother specifically argues that the juvenile court did not have sufficient information about the outcome of B.G.’s Regional Center evaluation. The Regional Center report was never moved into evidence, although the court ordered that a copy be given to the foster parents and to the children’s counsel. Mother also points out that B.G. had been preliminarily diagnosed with autism, and a physician found B.G. had a heart murmur that might be innocent but required periodic checkups. Early reports suggested that B.G. had a depressed affect, needed a lot of attention, showed little emotion, and had limited language skills.

The foster parents’ willingness to adopt the children was also evidence that the girls were likely to be adopted within a reasonable time. (R.C., supra,169 Cal.App.4th at p. 491; In re I.I. (2008) 168 Cal.App.4th 857, 870.) The foster parents were fully apprised of B.G.’s condition. They took B.G. to a doctor to be evaluated for autism, and discussed B.G.’s behavior with the doctor. The foster parents were also carrying out the children’s case plan and were involved in B.G.’s Kern Regional Center evaluations. DCFS reported that the foster parents were caring for the children’s medical needs. Thus, the foster parents’ desire to adopt the children—in the face of B.G.’s medical or developmental problems—demonstrated the girls’ adoptability.

Even without the above evidence of the children’s general adoptability, the court reasonably could have concluded that B.G. and P.H. were likely to be adopted based solely on the foster parents’ willingness to adopt. “When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.); In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408-1409.)

The record contained no evidence suggesting legal impediments to the foster parents’ adoption. An adoption home study was already completed within the foster care agency. DCFS reported that neither foster parent had a criminal record or referral for child abuse or neglect. They have two teenage sons and are experienced parents. Both foster parents reported that they love children. By the time of the section 366.26 hearing, the foster parents had cared for the children for nearly a year and had already demonstrated their ability to meet the children’s basic needs and more. As explained above, the foster parents were well aware of B.G.’s medical or developmental problems, if any, and they were already addressing B.G.’s medical needs. (Helen W., supra,150 Cal.App.4th at p. 79.) The couple understood that they would be accepting full legal and financial responsibility for B.G. and P.H. by adopting them. (Id. at p. 80.)

In sum, substantial evidence supported the trial court’s finding that B.G. and P.H. were likely to be adopted.

II. The Beneficial Relationship Exception Was Not Applicable

Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds by clear and convincing evidence that it is likely the child will be adopted if parental rights are terminated, unless the court determines termination of parental rights would be detrimental to the child based on one of several statutory exceptions. (§ 366.26, subd. (c)(1)(B).) The party challenging termination of parental rights bears the burden of proving that one or more of the statutory exceptions applies. (Cal. Rules of Court, rule 5.725(e)(3).) We review the juvenile court’s findings under section 366.26, subdivision (c)(1) for substantial evidence. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235 (B.D.); In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334.)

Mother contends the “beneficial relationship exception” under section 366.26, subdivision (c)(1)(B)(i) applied to this case. For the exception to apply, mother had to prove that termination of parental rights would be detrimental to the children because (1) she maintained regular visitation and contact with them, and (2) the children would benefit from continuing their relationship with her. (§ 366.26, subd. (c)(1)(B)(i).) The second prong of this test requires that the parent prove “the relationship [with the parent] promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The court considers factors such as “ ‘(1) the age of the child, (2) the portion of the child’s life spent in the parent’s custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child’s particular needs.’ ” (Helen W., supra,150 Cal.App.4th at p. 81, citing In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Moreover, “[t]he parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827; see also B.D., supra, 159 Cal.App.4th at p. 1234.)

Mother did not establish the applicability of the beneficial relationship exception. DCFS characterized mother’s visits as sporadic, rather than regular. Indeed, mother missed many visits and was often late or left early. Further, mother did not prove that the children would benefit from continuing their relationship with her. Both children are very young. At the time of the detention, the girls were not in mother’s care. While the children generally responded positively to mother during monitored visitation, mother displayed inappropriate and negative behavior during visits. The record thus revealed that mother did not occupy a positive “parental role” in the children’s lives. She called the children “brats” or “selfish” if they did not want to be held or kissed, or if they did not share with her. She complained about being tired during visits. She, at times, failed to discipline the girls. Mother also failed to fully comply with the case plan even though she knew that compliance was necessary for her to reunify with the children.

At the section 366.26 hearing, mother essentially admitted that she did not have a strong bond with P.H. When her counsel asked if she had a “very strong bond” with B.G. and P.H., mother replied: “With [B.G.], yes. I feel my bond is a little stronger with [B.G.] because she is older maybe.” Indeed, mother’s weak relationship with P.H. was evident from the visitation reports. The social worker noted that P.H. spent most of the visit time playing alone or interacting with the monitor. In one report, the social worker noted that mother tended to favor B.G. and played with her more than P.H. On the other hand, both B.G. and P.H. had developed a positive bond with the prospective adoptive parents who were giving them a stable, loving home. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341-1342 [juvenile court did not abuse its discretion by considering the child’s bond with prospective adoptive parents compared to the bond with birth parent when evaluating applicability of beneficial relationship exception].)

Mother did not demonstrate that her relationship with the children promoted their well-being to such an extent that it outweighed the benefit they would gain in a permanent home with adoptive parents. The juvenile court properly found that the beneficial relationship exception did not apply.

DISPOSITION

The juvenile court’s order is affirmed.

We concur: RUBIN, Acting P. J., FLIER, J.


Summaries of

In re B.G.

California Court of Appeals, Second District, Eighth Division
Apr 24, 2009
No. B210663 (Cal. Ct. App. Apr. 24, 2009)
Case details for

In re B.G.

Case Details

Full title:In re B.G. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:California Court of Appeals, Second District, Eighth Division

Date published: Apr 24, 2009

Citations

No. B210663 (Cal. Ct. App. Apr. 24, 2009)