Opinion
B190055
12-12-2006
In re D.H., E.H., and W.M., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. TIFFANY M., Defendant and Appellant.
Jesse F. Rodriguez, under appointment by the Court of Appeal for Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and William D. Thetford, Deputy County Counsel for Respondent.
Tiffany M. (Mother) appeals an order under Welfare & Institutions Code section 366.26 terminating her parental rights to the minors D.H., E.H., and W.M. She contends that the dependency court erred in terminating her parental rights to the children because she presented sufficient evidence to establish that the benefits exception of section 366.26, subdivision (c)(1)(A) applied. We affirm.
All statutory references herein, unless otherwise noted, are to the Welfare and Institutions Code.
PROCEDURAL BACKGROUND AND FACTUAL HISTORY
Tiffany M. is the mother of D.H. (a girl born in July 2000), E.H. (a girl born in June 2001), and W.M. (a boy born in January 2004), who are the subject of this appeal. Tiffany is also the mother of Baby Boy M. (born March 2005), who is whereabouts unknown, and J.H. (a boy born in September 2002), who is deceased.
These dependency proceedings have been the subject of two prior appeals before this court, both resulting in published opinions. In In re E.H. (2003) 108 Cal.App.4th 659, we held that proof of the parents actual knowledge of child abuse was not required for a jurisdictional finding under section 300, subdivision (e); all that need be shown was that the parent reasonably should have known child abuse was occurring. (Id. at p. 670.) In In re Baby Boy M. (2006) 141 Cal.App.4th 588, we held that the dependency court did not have jurisdiction to make jurisdictional and dispositional findings prior to locating a missing child. (Id. at pp. 595-596.) A portion of our factual statement is taken from these two cases.
1. The Proceedings for D.H., E.H., and W.M.
In September 2001, Tiffany took E.H. to the hospital with a swollen leg. Examination showed that E.H. had multiple rib fractures, fractures of the wrist, femur, feet, hands, and hip. E.H. suffered from a neurological condition which meant that E.H. would likely be mildly retarded and require special care. E.H. was detained and placed in a foster home for medically fragile children, and D.H. was placed with her paternal grandmother Karen H.
In September 2002, J.H. was born with cerebral palsy and a neurological condition similar to E.H.s, and he was detained and placed in a foster home. Mother and the childrens father, Jeremy H. (Father), were referred for parent education classes and support groups, and maintained twice-weekly monitored visitation with the children, and appeared to interact well with them. However, because medical evaluations indicated that E.H. had been abused while in Tiffanys care, the risk of harm to J.H. was high and the Department of Children and Family Services ("Department") recommended termination of reunification services with respect to J.H. During late 2002, the parents visited D.H. and E.H. consistently and the Department recommended further reunification.
In December 2002, the court ordered a new case plan for all three minors, including support groups for the parents of medically fragile children for the parents and monitored visitation with Karen H., the paternal grandmother. Both parents were ordered to attend E.H. and J.H.s doctor appointments.
In April 2003, the court ordered the parents be given the medical training needed to care for the children. Karen H. indicated that Mother and Father could reside with her if the children were also placed with her. Neither parent had been attending support groups and had stopped attending E.H.s medical and therapy appointments. The case plan update indicated the case plan goal for E.H. and D.H. was adoption, while the plan was return J.H. to Mother.
Mother and Karen H. completed a nursing assistant program and training for medically fragile children. The court ordered D.H. and E.H. placed with Karen H., and ordered the Department to provide referrals for a parental support group.
Karen H. advised the social worker that because she worked, the childrens day care would be provided by D.H.s day care providers. The older childrens doctor advised the Department the children should not be moved from their foster home unless their caregivers would have the necessary training; J.H. required an individualized caregiver. Therefore, the Department asserted that the children would be at risk if placed with Karen H.
At an 18-month review hearing held September 23, 2003, the court ordered the Department to provide counseling referrals and to provide a progress report concerning the parents participation. The parents were ordered to complete individual counseling to address their physical abuse, neglect and domestic violence issues; J.H. and E.H. were to be placed with Karen H. after the Department approved the day care arrangement; and the Department had discretion to permit Mother to reside at Karen H.s home and to permit unmonitored visits outside the placement.
An interim review report dated November 18, 2003, indicated that E.H., D.H., and J.H. were placed with Karen H., but Karen H. told the social worker she did not want Mother moving into her home.
A report for a January 20, 2004 hearing stated that Mother had told the social worker she had attended three counseling sessions and the therapist told Mother she did not need therapy. However, the therapist advised the Department that she had not told Mother she did not need therapy. Father had not yet attended therapy, and Mother refused to attend any more sessions.
The March 23, 2004 permanency planning reports for D.H., E.H., and J.H. indicated that all three children were living with Karen H. D.H. was attending day care, and appeared to be bonded with Karen H. Mother was residing with her own mother, Donna M., and was reportedly six months pregnant. Karen H. indicated she wanted to have all three children remain in her care. J.H. and E.H. were receiving Regional Center Services, and had been diagnosed with developmental delays. Father was living with his brother, and was unemployed, but he was seeking employment. Mother had been attending E.H.s therapy sessions and the childrens doctors appointments. Although Mother had received training for medically fragile children, and had been consistent in her visits with the children and attending their doctor appointments, she refused to attend the support group or her therapy. The Department recommended that the children not be returned to Mother because she had only partially complied with her case plan, and neither Mother nor Father would accept any responsibility for E.H.s injuries. The Department recommended that reunification services be terminated, and identified legal guardianship as the case plan goal for E.H. and J.H.
On July 29, 2004, the dependency court placed the three children under legal guardianship with Karen H., and terminated dependency jurisdiction as to D.H. Mother and Father were given unmonitored visitation at Karen H.s home, but visitation outside the home was to be monitored.
2. The Death of J.H. and the Placement of D.H., E.H. and W.M. with Martha and David P.
On August 30, 2004, Karen H. and Mother brought J.H. to the hospital with head injuries; he died later that day as a result. Karen H. told the physician at the hospital that J.H. had fallen off the bed and hit his head, but she claimed he appeared to be fine. She later noticed he was bleeding from the nose and mouth. Karen H. was arrested, and D.H. and E.H. were placed in shelter care. After the Department learned that Mother had given birth to W.M. in January 2004, it detained him in foster care, and filed supplemental petitions on behalf of D.H. and E.H. and a section 300 petition as to W.M.
The addendum report for the September 2, 2004 detention hearing stated that Father had told the Department he was not the father of W.M. At the hearing, the dependency court ordered monitored visitation for the parents, and ordered that E.H. and D.H. be placed together.
The jurisdiction/disposition report for the September 21, 2004 hearing stated that E.H., D.H. and W.M. were in shelter care. The Department requested no reunification services be given to Mother or Karen H. because the medical report on J.H.s death indicated the trauma causing his death was non-accidental. Mother was visiting the children, and Father had made two visits.
On November 5, 2004, the dependency court ordered the children placed with Martha and David P., the childrens paternal aunt and uncle, and ordered that Karen H. and Mother were not to come within 100 yards of the caretakers residence. Mother was given monitored visitation.
The interim review report prepared for the continued jurisdiction/disposition hearing of December 6, 2004, indicated that the children were doing well in their placement. The status review reports dated January 4, 2005, stated that the parents visitation with the children had been consistent and appropriate, and that the children were doing well in their placement.
3. The Birth and Disappearance of Baby Boy M.
In March 2005, Mother gave birth to Baby Boy M. in Lancaster, and upon release from the hospital, gave the baby to his biological father James S. On April 4, 2005, the Department filed a section 300 petition as to Baby Boy M., and the dependency court issued a protective custody warrant for Baby Boy M. On April 8, 2005, the Department obtained a search warrant of Mothers residence and two other apartments in the complex, but did not locate Baby Boy M. Mother was arrested on April 14, 2005. She refused to disclose the whereabouts of Baby Boy M. and was incarcerated.
From April 18, 2005 to April 25, 2005, a series of contempt hearings was held to determine the location of Baby Boy M. Mother remained in custody. Mother testified at the hearings that her sister took her from the hospital to the train station so she could give Baby Boy M. to James S., the babys father. James S. had said he was going to take the baby to Atlanta where he lived because Mother did not want the baby raised in foster care. After the dependency court concluded Mother did not know where the baby was, it purged the contempt proceedings and released Mother from jail.
After the dependency court denied Mothers motion to dismiss the petition based upon lack of jurisdiction, Mother appealed. We reversed the dependency courts jurisdictional findings, but ordered it to maintain the protective custody warrant for Baby Boy M. and to conduct periodic review hearings. (In re Baby Boy M., supra, 141 Cal.App.4th at p. 603.)
The addendum report for the continued jurisdictional hearing held June 21, 2005, on the amended petitions for E.H., D.H., and W.M. stated that Mother was attending weekly visits with her children and was friendly with them, although it appeared that she did not know how to (or was not willing to) play and verbally interact with the children on their level. At one visit, Mother was annoyed that she had to share time with Father and Karen H. She threatened to punch the social worker in the face.
4. Termination of Mothers Parental Rights to D.H., E.H., and W.M.
The section 366.26 report prepared for October 18, 2005, stated that the children D.H., E.H., and W.M. were all doing well in their placement and attached to their caregivers. Mother was visiting the children on a sporadic basis. At the visits, she would only interact with D.H. At times, she would put W.M. on her lap, but there was no emotional attachment in the form of hugs, kisses, or cuddling. The Department had identified adoptive parents for the three children in their current caregivers. The dependency court continued the matter for completion of the adoption home study.
The report submitted for the November 21, 2005 hearing stated that the visit location had been changed to Lancaster at a fast food restaurant near the train station. Mother missed the first visit in August 2005; the children went home after waiting 35 minutes for her. Mother came to the next visit with an aunt who was verbally inappropriate in the childrens presence, so the visits were moved to the Departments Lancaster office. Thereafter, Mother failed to attend or cancel numerous scheduled visits. Those visits Mother did attend were marked by little interaction between Mother and the children. Mother would observe the children play, but would not acknowledge if the childrens behavior was inappropriate. There was little affection demonstrated between the children and Mother, and Mother only interacted with D.H. The childrens caretaker reported that the children were more unruly and difficult to manage after visits with Mother. The childrens therapist recommended that visits be reduced to twice a month.
On February 22, 2006, the court continued the section 366.26 hearing, but ordered that visits with Mother be reduced to twice a month.
At the contested 366.26 hearing, D.H., who was five years old at the time, testified that her mothers name was "Martha" (her aunt). When asked whether she had another mother, she replied, "Momma Tiffany," who was her "birth mom." When D.H. visited with Mother, she would play with toys in a room and D.H. would eat with Mother. D.H. liked visiting with Mother. Mother only asked her once how she was doing at school, and did not help D.H. with her homework. However, D.H.s "real mommy and daddy" (her caretakers and prospective adoptive parents) made her feel the most safe. She wanted to live with them.
Mother testified that she had been visiting regularly with the children, first weekly and now every other week. She would bring them coloring books, food, and a brush and comb which she would use to comb their hair. She changed W.M.s diaper until she was potty trained. The children would call her "mom" if their Aunt Martha was not around, otherwise they would call her "Momma Tiffany." When the visits were terminated, W.M. would cry. E.H. would always ask if she could come live with Mother, and D.H. would ask if she could live with Mothers mother.
The dependency court found by clear and convincing evidence that the children were adoptable. The court found the section 366.26, subdivision (c)(1)(A) exception did not apply because Mother only visited the children for an hour each week, and greater interaction was required for the exception to apply where the children were adoptable. The court found no detriment in terminating parental rights.
DISCUSSION
Mother argues that the dependency courts termination of her parental rights is not supported by substantial evidence because under the exception of section 366.26, subdivision (c)(1)(A), she had established that she maintained a parental relationship with her children throughout the entire time the children were dependents. Mother contends the visits with the children were appropriate and she was able to tend to their needs. Under the more liberalized standards governing the "benefits" exception of section 366.26, subdivision (c)(1)(A), she argues a parent may establish a benefit to continuing the relationship with the child even without a day-to-day relationship. (See In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.).)
We disagree. Subdivision (c)(1)(A) of section 366.26 creates an exception to the normal presumed permanent placement plan adoption where "[t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." But the statute does not further define the sort of relationship that will trigger this exception. (Brandon C., supra, 71 Cal.App.4th at p. 1534.) Courts have interpreted the exception to require a relationship that promotes the childs well-being to a degree that outweighs the benefits the child would gain from a permanent home with new adoptive parents, such that severing the natural parent/child relationship would deprive the child of such a substantial, positive emotional attachment that the child would be greatly harmed. (Ibid.)
Because a child normally will derive some incidental benefit from interaction with a natural parent, courts require more than just frequent and loving contact to find the exception; a sufficient relationship must be of the sort that "`arises from day-to-day interaction, companionship and shared experiences . . . " resulting from regular visits and contact . (Brandon C., supra, 71 Cal.App.4th at p. 1534, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) While a strong and beneficial parent-child relationship sufficient for purposes of the exception can exist even without day-to-day contact and interaction, (In re Casey D. (1999) 70 Cal. App.4th 38, 51) the parent must occupy a parental role in the childs life and provide the sort of ongoing care and nurturing that parents normally provide. (In re Derek W. (1999) 73 Cal. App.4th 823, 827.) To be merely a "friendly visitor" is not sufficient. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
Here, Mother maintained consistent visitation with the children until the death of J.H., and it is apparent that after his death, the quality of her relationship with the other children deteriorated. Her visits became more sporadic, and her conduct with the children demonstrates that she no longer occupies a parental role in their lives. The children consider Martha and David to be their parents, and are bonded with them. Further, there is no evidence the children would suffer detriment from the termination of parental rights; on the contrary if such rights are not terminated, the children will be denied a chance to live in a stable, adoptive home. (In re Angel B., supra, 97 Cal.App.4th at p. 468.) We therefore conclude the dependency court did not err in finding the benefits exception of section 366.26, subdivision (c)(1)(A) did not apply.
DISPOSITION
The order of the superior court is affirmed.
We Concur:
PERLUSS, P. J.
JOHNSON, J.