Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. J-1241081, James E. Herman, Judge, Zel Canter, Judge
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel and Sarah A. McElhinney, Deputy County Counsel, for Plaintiff and Respondent
COFFEE, J.
J.O. appeals from the order terminating her parental rights to her minor daughter, J.E. (Welf. & Inst. Code, § 366.26.) She contends that the beneficial parental relationship exception bars the termination of her parental rights and that the juvenile court failed to consider whether maintaining a parental relationship under a legal guardianship would outweigh the benefits from adoption. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
In May 2005, mother gave birth to J.E., her fourth child. She gave birth to two other daughters after Child Welfare Services (CWS) placed J.E. in protective custody. Each of her children has a different father. Her two sons and oldest daughter live with their respective fathers. Mother's child welfare referrals date back to 1998.
On May 21, 2008, a criminal court found that mother was in violation of probation and placed her in county jail. On May 23, 2008, sheriff deputies responded to a report that J.E. was staying with an adult who was incapable of caring for her. Authorities placed J.E., who was barely three years old, in protective custody.
On May 28, 2008, CWS filed a section 300 petition alleging failure to protect, severe physical abuse, failure to provide, and abuse of sibling. (§ 300, subds. (b), (e), (g), & (j).) The petition also alleged that J.E.'s mother and father were incarcerated and failed to make adequate arrangements for her care. On May 21, J.E. was found wearing "sopping" wet diapers in the home of Mr. R., an adult who was incapable of caring for her. In changing her, the reporting party noticed that J.E. had a vaginal injury. The petition further alleged that mother's and father's criminal histories placed J.E. at risk of abuse and neglect. An amended petition filed on May 29, 2008, stated that mother had been unaware of J.E.'s vaginal injury, and said that it must have occurred after her incarceration.
The May 29, 2008, detention report states that examinations of J.E.'s vaginal injury were inconclusive. A forensic examiner opined that the abrasion could have been caused by vigorous cleaning or placing a foreign object in J.E.'s vagina. Mother told CWS that J.E. has birthmarks on her vagina, belly and cheek. When asked whether Mr. R. had ever hurt her, J.E. said, "Yes." She added, "My mommy made me bleed." Mr. R. suffered from a brain dysfunction and seizures. Mother allegedly committed several crimes on five dates from April 2006 through December 2007. Father allegedly committed a murder and other crimes on 13 dates from October 1995 through May 2005; he remained in prison in May 2008.
Mother told CWS that J.E. was in day care on May 21, when mother was placed in custody. She tried to arrange for her cousin to care for J.E. She learned later that the Transition House shelter ("TH shelter") where he lived rejected the custody form she had provided. She anticipated that on May 23, her cousin would bring her a form that complied with the shelter's requirements. Mother did not plan to leave J.E. with Mr. R. because of his seizures and memory issues.
The juvenile court ordered that J.E. be detained as recommended by CWS, and set the jurisdictional hearing for June 4. On June 4, 2008, the court ordered a court-appointed special advocate (CASA) for J.E. and continued the jurisdictional hearing to June 25, 2008.
The June 25, 2008, jurisdictional report recommended that J.E. remain in out-of-home care. In its November 7, 2008, addendum, CWS recommended that mother, but not father, receive reunification services.
On November 7, 2008, the juvenile court conducted a contested jurisdictional and dispositional hearing. Mother testified and conceded, on cross-examination, that she knew her May 21 court hearing was serious, but did not make prior arrangements for J.E.'s care in case "something bad happened" at the hearing. The court found that the allegations of the amended petition were true, declared father to be J.E.'s biological father, denied him reunification services, and ordered CWS to provide mother with reunification services.
Father is not a party to this appeal.
Mother's case plan required that she follow all conditions of her probation; incur no new arrests or convictions; obtain and maintain a stable residence for herself and J.E.; demonstrate that she could put J.E.'s needs first; participate in and complete one-on-one parent education; and comply with medical and psychological treatment requirements. It also provided mother with one three-hour unsupervised visit with J.E. each week. On January 8, 2009, after mother brought unauthorized people along, and took J.E. out of town during visits, and returned J.E. to her foster home more than 90 minutes late, the court granted CWS's request to order that mother's visits be supervised.
The January 29, 2009, six-month review hearing was continued until February 19, 2009. The six-month status review report disclosed that mother had not put J.E.'s needs first. Instead of obtaining safe and suitable housing, mother rented a room in a home owned by a bounty hunter who kept guns in the home and rented other rooms to "various people." Although she had complied with the terms of her probation, mother allowed unauthorized people to participate in visits with J.E. That occurred on December 4, 2008, when mother's husband, F.O., participated in a visit shortly after his release from prison. Mother also allowed J.E.'s father to see her despite the juvenile court's refusal to grant him any visitation rights.
J.E. was doing well in her initial foster home placement where she received weekly in-home counseling services. Her behavior was improving. The January 29, 2009, CASA report describes comments and behavior which suggested that J.E. had been molested in the past. When her foster mother tried to clean J.E.'s genital area, she "became visibly upset, grabbed the hand that held the washcloth, pushed it away and said, 'The purple man gave me an ouchie.'" Another time, J.E. told her foster mother that the purple man gave her a bath and "an ouchie." Once, when the foster mother diapered her infant son, J.E. grabbed his penis and said, "[t]hat goes here, " while pointing at her own vagina. In February 2009, J.E. told CASA that "[t]he purple man is a mean man. He hurt me with his nail and made me bleed."
On February 19, 2009, the juvenile court ordered that its previous orders remain in effect. It also set a hearing for March 26, 2009, to consider a contested request by J.E.'s attorney to terminate mother's reunification services and set a section 366.26 permanency planning hearing.
CWS filed a March 26, 2009, addendum report and recommended that the juvenile court continue mother's reunification services. The addendum, including an attached log, showed that mother was attentive and cautious with J.E., met her needs, and that J.E. enjoyed playing with her during their visits. J.E.'s attorney withdrew the request to terminate reunification services. The court scheduled a hearing for April 9, 2009, to address mother's "denial issues."
On April 9, 2009, the juvenile court made the following statements to mother: "Well, the reason I wanted you here, Mom, is I have serious concerns about your progress as far as your case plan is concerned.... [¶] I mean, the information that I have is that you... don't understand the change you need to make to change your life to safely and appropriately parent your child; you think you should be permitted to take your child to visit anyone that you see fit; and... you have yet to establish an appropriate residence. [¶]... [Y]ou continue to be in denial about the reasons that your child was removed." Mother described her participation in parenting classes and counseling. The court set a 12-month review hearing for July 30, 2009, and ordered that mother continue receiving reunification services as recommended by CWS, and continued its prior orders concerning J.E.
The July 30, 2009, 12-month status review report recommended that mother receive reunification services for six more months. Mother was complying with the terms of her probation but continued to associate with family members in prison and in gangs. She needed to complete a parenting class. She participated in therapy but could not take certain medication prescribed for her because she was pregnant. The CWS social worker expressed her belief that with additional services mother could be reunified with J.E.
In late February 2009, J.E. was placed in a new "fost-adopt" home in Lompoc. The July 30, 2009, CASA report describes J.E.'s excitement about the home and her "new friend, the foster parents' six-year-old daughter." The CASA report raised concerns about mother's use of visitation time to say and do "things to confuse [J.E.] about her feelings toward her foster family, which create[d] emotional stress for [her.]" After one visit, J.E. said her "other mom sneaked, " before pulling candy out of her pocket. J.E. repeatedly said, "My Mommy says I'm fat, " which affected her eating habits. J.E. told her foster father that "[A., her older half-sister] doesn't like adoption." She told CASA that A. did not like J.E.'s foster sister, and added, "Please don't tell my daddy what [A.] said, " which suggested that J.E. felt very conflicted. CASA also reported that mother misrepresented or omitted necessary information in filling out a medical history form for J.E.'s new doctor.
The juvenile court ordered further reunification services for mother and set the 18-month review hearing for November 19, 2009. It continued its previous orders concerning J.E. The 18-month status review report recommended that the court terminate mother's reunification services and set a section 366.26 permanency planning hearing. The court continued the 18-month hearing until January 14, 2010. CWS filed an addendum on January 14, 2010.
On September 30, 2009, during a team decision meeting, CWS and mother discussed a plan for J.E. to return to her mother's care. That plan required mother to obtain appropriate housing, with multiple options, including the TH shelter; to make an appointment with a mental health professional in order to resume taking her medication; and to protect J.E. from persons who had "not been cleared by [CWS]." Later that day, mother was in a serious accident while she was driving with her young infant O. Mother and O. were taken to a Santa Maria hospital for emergency medical treatment. Instead of allowing medical personnel to draw a blood sample, mother left the hospital against their advice. The nature of O.'s injuries compelled that she be transferred to a Santa Maria hospital for treatment. The next day, CWS learned that mother was in intensive care, awaiting neck surgery in a Santa Barbara hospital.
After a weekend visit with mother in October 2009, J.E. said that she saw a man but could not talk about it because "I will get my mommy in big trouble." Mother later explained that during their visit, she had to leave her baby, O., with her father, Mr. R. CWS reminded mother that she could not expose J.E. to people who had not been cleared by CWS, particularly Mr. R., who allegedly had molested J.E. Mother responded that she was not sure that he had molested J.E.
On October 29, 2009, CWS learned that mother would not be permitted to continue residing at the TH shelter after November 2, 2009. The case manager told CWS that mother did not qualify to live there because she was not homeless. Mother informed the case manager that she would live with Mr. R. "as soon as CPS [was] out of [her] life." She also said that if J.E. could not be returned to her, she wanted her to be placed with her father. Mother later told CWS the TH shelter had kicked her out because her drug tests were positive and she fought with other residents. She attributed the positive test results to her prescribed pain medication. Mother provided that information while CWS was investigating reports that she was neglecting her new baby, O.
On January 14, 2010, after hearing the evidence at the contested 18-month review hearing, the juvenile court adopted the CWS recommendations and terminated mother's reunification services. It also set a section 366.26 permanency planning hearing for April 22, 2010. The section 366.26 permanency planning hearing was ultimately continued until August 26, 2010. CWS submitted addenda dated July 29, 2010, and August 26, 2010.
In the April 22, 2010, section 366.26 report, CWS recommended that the juvenile court terminate the parental rights of mother and father and order adoption as the permanent plan for J.E. Mother's probation conditions prohibited her association with known felons. Despite that prohibition, mother was pregnant with her sixth child, whose father was a felon. Mother had also violated her probation by moving away from Santa Barbara County.
CWS described J.E. as a very happy, loving child who remained on track developmentally, with no overriding mental or emotional concerns. She was reciting the alphabet and numbers, learning to read and write, and enjoying crafts, drawing, and other arts. J.E. loved the foster home where she had been living since February 26, 2010, where she enjoyed attending a Head Start program. She also received counseling services. She shared a strong bond with her foster parents, and approached them regularly to ask that they adopt her. They were completely committed to adopting her.
CASA also submitted a report on April 22, 2010. While J.E. seemed to miss her mother, she referred to her by her first name. In early January, when mother visited her weekly, J.E. was throwing tantrums and having behavior problems. J.E. said that mother said J.E. could not live with her because "no one would give mommy a house." After a visit with mother on January 11, J.E. told her foster parents that they better be nice or "her mother would call the cops." Mother's visits were changed to monthly supervised visits and J.E.'s behavior improved. By mid-March, J.E. had stopped throwing tantrums and ceased talking about living with mother. J.E. told her CASA worker that she wanted to keep living in her foster home, and started referring to her foster family as "my family, " and to their adopted daughter as her sister. In February and March, J.E. told the foster parents several times that she wanted to continue living with them. Her self esteem increased while living in her foster home, where she gained confidence as her skills improved.
By August 26, J.E. had lived with her foster parents for approximately 18 months, and she continued to ask them to adopt her. She told CASA that she could not live with "[her mother] because [she] does not have a house."
During the period of J.E.'s dependency, mother gave birth to two younger daughters, O. and E., in 2009 and 2010, respectively. By late July 2010, O. and E. were living in the same foster care home as J.E. E.'s father was a felon.
CWS reported that there was minimal mutual attachment, interaction and affection between mother and J.E. For example, during the May visit, mother repeatedly told J.E., "I love you and I'm going to miss you, " before J.E. reciprocated. Mother and J.E. did not hug when J.E. arrived or left their June 2010 visit. The August 19th addendum described mother's statements disputing the CWS reports regarding several topics, including the level of attachment, interaction and affection between mother and J.E.
During the section 366.26 hearing, the parties stipulated that J.E. was adoptable. Mother testified that she has a close bond with J.E. When she brought J.E.'s sisters to their visits, mother would back off so that J.E. could play and visit with them. J.E. sometimes called mother by her first name and other times called her mommy. Sometimes J.E. did not want to leave their visits when it was time to go. Mother brought "witnesses" to her visits, including R.M., mother's aunt, without seeking CWS approval, although she knew she was not supposed to do so. R.M. testified that she saw J.E. kiss and hug mother during their visits, and that J.E. was happy to see mother. She sometimes looked sad or upset when a visit ended, and looked back at her mother.
The juvenile court terminated mother's and father's parental rights. It scheduled the six-month post-permanency review for February 24, 2011.
DISCUSSION
Mother contends that the beneficial parental relationship bars the termination of her parental rights. We disagree.
Section 366.26, subdivision (c)(1)(B) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(B)(i) requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (See In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Mother had the burden to show that the exception applied. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Only in the "extraordinary case" can a parent establish the exception because the permanency planning hearing occurs after the court has repeatedly found the parent unable to meet the child's needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
The beneficial parental relationship exception requires proof of "a parental relationship, " not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) In determining whether the exception applies, courts must balance on a case-by-case basis the quality of the natural parent-child relationship against the security and sense of belonging a new adoptive family would provide. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than 'frequent and loving contact.' [Citation.]" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.)
Here, mother did not demonstrate the ability to place J.E.'s needs above her own. She violated her probation by associating with known felons and leaving Santa Barbara County, and also violated her CWS case plan by doing so. She failed to comply with CWS's instruction to keep J.E. away from Mr. R. There was minimal attachment, interaction and affection between mother and J.E. Substantial evidence supports the juvenile court's finding that mother failed to establish the section 366.26, subdivision (c)(1)(B)(i) beneficial parental relationship exception to the termination of parental rights. (In re Derek W., supra, 73 Cal.App.4th at pp. 825, 827.)
Mother further claims that the juvenile court lacked knowledge of the option to appoint a guardian instead of declaring that J.E. was adoptable, and that it terminated parental rights "on the belief that it was either termination and adoption or the limbo of foster care." Continuing in that vein, she claims that it is probable that if the court had considered the option of guardianship, it would have given that option serious consideration instead of terminating her parental rights. We disagree.
The judicial officer who terminated mother's parental rights received the case shortly before the section 366.26 hearing and asked the CWS attorney to outline the options. However, in arguing that the juvenile court lacked knowledge of the guardianship option, mother cites portions of the record that precede the short recess the court took before ruling. After further consideration during the recess, the court stated that it "had a chance to... think about this, " and "assuming that everything went as one would picture from the documents in the file, " it thought that it had to "terminate [mother's] rights and let the adoption go forward for the benefit of the child." Substantial evidence supports the court's ruling. Among other things, it establishes that the bond between mother and J.E. deteriorated during the lengthy dependency period when mother did not place J.E.'s needs first, and that J.E. improved as the frequency of her contact with mother declined.
Most of the dependency proceedings were conducted by Judge James E. Herman. Judge Zel Canter conducted the section 366.26 hearing. Mother cites the following questions that Judge Canter posed during that hearing: "What's the alternative here to declaring [parental rights] terminated and adopted? What's the alternative? Order more reunification?" In arguing that Judge Canter believed that J.E.'s relationship with her was important, mother cites the following statements: "I don't see the mother as some dragon that's threatening the welfare of the child." "[W]hen she has one hour a month, we all agree she can't possibly meet the daily needs of the child.... [I]pso facto, she can't be reunified, but she's restricted to one hour a month. I don't quite follow that." Judge Canter ceased making such statements after taking a recess to further review "the documents in the file."
Mother acknowledges that "adoption is the preferred permanent plan, " but asserts that "the juvenile court should look to legal guardianship under appropriate circumstances." She cites several inapposite cases, including In re Fernando M. (2006) 138 Cal.App.4th 529. In Fernando M., Fernando and his mother appealed the order establishing adoption as his permanent plan. Fernando had lived in his grandmother's home "almost his entire life" and he remained there at the time of the permanency planning hearing. (Id. at pp. 536-537.) Grandmother also cared for his older siblings. The agency recommended adoption by grandmother as the permanent plan but she declined to adopt Fernando. (Ibid.) The Fernando M. reviewing court concluded that under the peculiar facts of his case, exceptional circumstances warranted the identification of legal guardianship as Fernando's permanent plan. (Id. at p. 532.) Here, in contrast, at the time of the permanency planning hearing, J.E. had lived in the prospective adoptive home for at least 18 months; her younger siblings had joined her there; and the proposed adoption would preserve her stability.
The record does not support mother's claims that the continuation of the parent-child relationship would promote J.E.'s well-being to such a degree as to outweigh the benefits from adoption, and that termination of the parental relationship would be detrimental to her. J.E.'s behavior and self esteem improved as her contact with mother declined. Mother showed interest in J.E.'s food, clothing, and toys, took her shopping, and brought her gifts. However, she did not acquire suitable housing for J.E., or demonstrate that she could protect her from danger. This case lacks exceptional circumstances to warrant consideration of legal guardianship as the permanent plan.
DISPOSITION
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.