Opinion
2d Juv. No. B228749
05-24-2011
In re J.T., et al., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Plaintiff and Respondent, v. NATASHA T., Defendant and Appellant.
Aida Aslanian, under appointment by the Court of Appeal, for Appellant. Dennis A. Marshall, County Counsel, Gustavo E. Lavayen, Chief Deputy County Counsel, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. J-1285820, J-1285821, J-1285822)
(Santa Barbara County)
A mother appeals from an order of the juvenile court terminating parental rights and establishing adoption as a permanent plan for her three children. (Welf. & Inst. Code, § 366.26.) She asserts the trial court erred in terminating her parental rights because the parental benefit exception applies and the juvenile court failed to consider the childrens wishes. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
The three young children of Natasha T. (mother)--J.T., age three; D.T., age two; and N.T., age two months—were detained by respondent Santa Barbara County Child Welfare Services (CWS) on January 17, 2009, after D.T. was brought to a hospital emergency room with a gash on her forehead. Mother and father gave conflicting explanations of the cause of the injury. During the hospital visit, mother was verbally aggressive to hospital staff. Later, a hospital employee witnessed an argument between mother and father in the hospital parking lot with the children present during which father pulled mothers hair and slapped her. The children were placed together in the home of a foster family.
On January 20, 2009, CWS contacted mother. Mother denied the allegations, stating that the hospital staff, law enforcement and CWS had all "judged" her and father because they were homeless, had tattoos and were not employed.
The jurisdiction/disposition report filed February 23, 2009, stated that mother had no known criminal history, neither mother nor father had a history of substance abuse and both denied domestic violence. A family friend said she saw D.T. injure her forehead. She stated the injury was an accident, she never observed domestic violence in the home, and mother and father were "fine people" who were working hard to get back on their feet.
In the report, the childrens foster care provider reported that, when the children first came to her home, they did not respond to routine and resisted a structured environment. J.T. quickly became accustomed to a structured preschool environment, but D.T. continued to be difficult. Mother visited the children every evening at the home of the care provider. The children were physically healthy, except that J.T. had multiple cavities that had not received dental treatment.
The report concluded: "At present, the children would not be safe if returned home. The family is under stress and the previous allegations of domestic violence, while unfounded, still loom as a specter over the family." CWS recommended that the children remain detained and the parents receive family reunification services, including parenting classes and domestic violence counseling. Both mother and father submitted on the petition and the social workers report.
On May 12, 2008, CWS received a referral of emotional abuse of J.T. and D.T. by their parents. The referral allegations stated that mother and father were involved in a domestic dispute while the children were present. During the dispute, glasses and pictures were broken. The reporting party described the home environment as "chaotic and unstable." The referral was closed as unfounded.
On March 19, 2009, CWS sought an order changing the parents case plans to include substance abuse assessment, testing and treatment. The request was based on a report that mother and father had been "prescription shopping" for pain medication. The request also states that the parents have a history of substance abuse but had successfully completed diversion programs. The parents agreed to the requested change and the court so ordered.
The interim review report filed on May 18, 2009, offered a positive assessment of the parents compliance with their case plans: "The parents have been showing control over their anger and negative behavior and are ready to begin therapy sessions . . . . The parents respond well with their children and appear to know age appropriate expectations as observed by the undersigned. . . . The parents have a very suitable, nice, clean rented home for the children in Santa Maria." The report also states that both parents were employed, attended NA meetings and had negative drug tests.
A status review report filed on August 17, 2009, evidenced this continued improvement. It states that both parents visited their children on a regular basis, including weekend overnight visitation, and that they accepted responsibility for their actions. The social worker "believes that a strong bond exists between the parents and the children."
An interim review report filed December 21, 2009, states that CWS had received a referral that the parents were abusing prescription drugs and engaged in physical fights during visitation with the children. An investigation, however, revealed no evidence to support the referral. The report states that the parents were separated, mother was staying with friends and looking for housing, and father was living with his parents. Mother and father were both underemployed, and had financial difficulties. The social worker reported that mother was attempting to stabilize her mental health (bipolar disorder), continued to visit the children regularly, demonstrated some positive parenting skills, but struggled with supervision at times.
The situation changed 10 months after the first positive report. A status review report filed March 22, 2010, recommended that family reunification services for both parents be terminated and that a 366.26 hearing be set. Father had resumed abusing drugs and had not complied with his case plan. Mother had not yet obtained employment. She had maintained her sobriety and regularly attended NA meetings, but was struggling with mental health issues. J.T. and D.T. also had mental and emotional health issues, showing increased aggressive behavior and having tantrums. D.T. also exhibited behaviors of disassociation. The two older children were placed together in a foster home, and the youngest child, N.T., was placed with a separate family. N.T. appeared to be well bonded to her caregiver, but seemed to be a little withdrawn. Both sets of foster parents expressed a desire to adopt the children.
The report noted that CWS had reduced mothers visitation with the children to two times a week for two hours. During the visits, mother struggled with supervising the children, and told them that they would be coming home. She failed to keep therapy appointments and was dropped from counseling in July 2009. Mother was continuing to seek employment, having obtained and been dismissed from several jobs during the review period. She was no longer required to test for drugs or receive treatment for substance abuse, but continued to attend NA meetings.
In the report, the social worker recommended that family reunification services be terminated for both parents because they had "not been able to stabilize their own lives to provide an environment that their children will be able to thrive in. [Mother] has significant mental health concerns that she is not willing to deal with at the present time . . . . [The two older children] are showing increased behaviors attributed to the domestic violence and neglect they were exposed to while in the care and custody of the parents."
An addendum report filed April 22, 2010, states that the social worker "continues to have concerns with the visitation between [mother] and the children. [Mother] shows the inability to protect the youngest child from the hostility of the older two children and continues to encourage the negative behaviors of [D.T.]." Mother had not obtained stable housing or employment. The children were thriving with their foster parents. The social worker again recommended that family reunification services be terminated.
A second addendum report filed for the May 3, 2010, hearing stated that mother had not consistently followed through with mental health therapy. On that date, mother submitted on the recommendation that reunification services be terminated. The court terminated reunification services and scheduled a 366.26 hearing for August 30, 2010.
On August 27, 2010, mother filed a request to change the May 3 order. She requested that reunification services be reinstated and that visitation be changed to include unsupervised, overnight and weekend visits. On October 5, 2010, mother withdrew her request for modification.
In a report prepared for the August 30, 2010, section 366.26 hearing, CWS recommended that parental rights be terminated and that the children be found adoptable. The report states that mother continued regular visitation with the children but, contrary to mothers claims, she continued to struggle with proper supervision and maintaining control over the children. Case aides had to intervene on several occasions to discipline the children when mother did not do so. The social worker was concerned that mother did not have the resources at the current time to provide a home for her children. The social worker was also concerned that the aggression and extreme tantrum behavior demonstrated by the two older children and which was uncontrolled by mother was a physical safety threat to themselves and others in the household. The children respected their foster parents and were bonded to them. The two older children showed a decrease in aggression and tantrums in the structured and predictable environment provided by their foster parents. The two older childrens behavior improved after visits with mother were reduced. The social worker concluded that the physical and emotional well being of the children would be at risk if returned to the care of the parents.
At the section 366.26 hearing on October 5, 2010, the social worker testified that the children exhibited aggressive and defiant behavior when they visited mother, but they did not show that behavior in their foster home because the foster mother "has complete control." The social worker described several incidents of misbehavior by the children during visits with mother due to mothers lax supervision of the children. When mother was informed of CWSs concerns, she was "receptive and cooperative" and said she "would make adjustments to address [the] concerns." The social worker described the childrens bond with their mother as "more of a fun aunt or . . . a really cool babysitter that they get to spend time with. They dont really see her as the authoritative parental role. . . . There is [sic]some incidences where they will defy her repeatedly. [J.T.] has hit her a couple of times. She has been laughed at a couple of times when she attempts to redirect them or attempts to . . . do an intervention with them, like put them in time-out . . . they dont respond well to that." The children call her "mommy Tasha" during the visits and run to her and give her hugs at the beginning of the visits. When the visits end, the children say, "I love you."
The social worker testified that unsupervised visits had been approved twice, but then reverted to once a week supervised visits after an altercation between mother and father in September 2009. The social worker testified that she believed there would be no detriment to the children if parental rights were terminated.
Mother testified that she completed the parenting classes required by her case plan and they helped her be a better parent to the children. She believed that if the children were given a choice, they would choose to be with her. Mother said she had leased an apartment, had two jobs and had obtained a vehicle.
After the hearing, the court terminated parental rights and found that adoption should be the permanent plan for the children. With respect to the parental benefit exception, the court noted that the visitation logs indicate that "although . . . there is definitely some affection between the [children] and the mother, many of those visits were problematic in one way or another in terms of the behavior of the children and the attempts by the mother to redirect that behavior. [¶] [T]hey werent, overall, a success. And the reports reflect the views of the care providers that often the visits resulted in turmoil as far as the children were concerned, and negative behavior, the references and the reports to the fact that the children really relate to the structure and the consistency thats provided by the care providers. . . . [¶] It seems to me from the reports that have been provided by the care providers, as well as the observations of the department, the bond that the children have with the care providers is one of being subjected to structure and consistency, and a recognition by the children that the care providers are exercising parental-type responsibility and constraints. [¶] And as a result, the childrens negative behavior has been significantly reduced in their care as opposed to when theyre with [mother], when it is basically a situation where there is . . . loving interplay between them, and there is food and games, . . . but the behavior, negative behavior, seems to increase significantly to and from visits and during visitation."
The court concluded: "[I]t is clear that, at this point, I do not consider the best interests of the mother, the best interests of the care providers, but I really focus on the best interests of the child. . . . [¶] [T]he Legislature has given us a clear preference for the permanency and stability that is provided by adoption. And here . . . you have . . . two caregivers . . . who are willing to and have expressed a willingness to adopt these children. [¶] [I]t is not only a matter of are the children adoptable which I do find by clear and convincing evidence, but we have alternative care providers who are willing to proceed with adoption as a permanent plan. The children have been placed with these caregivers for a significant period of time. [¶] The mothers frequency and consistency of visitation have been admirable. But as pointed out, the visitations themselves have been often problematic. [¶] There is no doubt in my mind that there is an emotional bond between the children and mother. And there is no doubt in my mind that the older children will miss contact with mom. . . . [¶] [I]n looking at the entire record . . . the comparing of the behavior of the children and the childrens view of the alternative care providers with the relationship with the natural mother . . . I[] . . . find that mother has not sustained her burden in proving the beneficial relationship exception to termination of parental rights."
Mother filed a timely appeal.
DISCUSSION
Standard of Review
We review an order terminating parental rights and ordering adoption under the substantial evidence test. Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) We determine only whether there is any substantial evidence, contradicted or uncontradicted, that supports the juvenile courts order, resolving all conflicts in support of the determination and indulging all legitimate inferences to uphold the lower courts ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212.) If there is substantial evidence to support the juvenile courts order, we must uphold the order even if other evidence supports a contrary conclusion. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Parental Benefit Exception
Section 366.26, subdivision (c)(1)(B)(i) states that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
The parent bears the burden of proving the exception. Only in the "extraordinary case" can a parent establish the exception because the permanent plan hearing occurs "after the court has repeatedly found the parent unable to meet the childs needs." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) To meet his or her burden of proof, a parent must show more than frequent and loving contact or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The juvenile court may reject a parents assertion of the exception simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. (In re Jasmine D., supra, at p. 1350.)
A 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, or that the parental relationship may be beneficial to the child only to some degree. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The parent must also show that continuation of the parent-child relationship will promote "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., supra, 27 Cal.App.4th at p. 575.) In other words, the focus is on the children, not on the parent.
Here, mother did not meet her burden of proof. Frequent and loving contact with a child in these circumstances is, standing alone, insufficient to meet the requirements of the exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Mother did not provide sufficient evidence that the strength of her relationship with the children outweighed the sense of belonging they would receive from a stable home. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) "[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (Id. at p. 229.) Although the children loved their mother, the record contains substantial evidence that mother was unable to control the childrens negative behaviors during visits, and that the children did not display aggressiveness and emotional instability when they were in the structured environment provided by their caregivers.
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289, to support her argument that the heavy burden of proof set forth in Autumn H. has been lessened so that a parent meets her burden if she shows frequent and loving contact with her children. In S.B., the court said: "The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [her father]." (Id. at pp. 300-301, italics added.)
In the recent case of In re C.F. (2011) 193 Cal.App.4th 549, the court clarified its holding in S.B.: "The italicized language has proven to be problematic. In In re Jason J. (2009) 175 Cal.App.4th 922, we dealt directly with an attempt to use the some measure of benefit language in S.B. to diminish the otherwise heavy burden a parent must meet under Autumn H. in establishing the parent-child beneficial relationship exception. We stated: The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is "some measure of benefit" in continued contact between parent and child. [Citation.]
"Our effort in Jason J. to discourage the improper and inaccurate use of our opinion in S.B. has not been successful. Following Jason J., in literally dozens of unpublished opinions various panels of this court and courts in other appellate districts have been required to distinguish S.B. on its facts and repeatedly reject the notion a parent can prevent termination of parental rights by merely showing there is some measure of benefit in maintaining parental contact. We have not found any case, published or unpublished, in which a reviewing court, relying on S.B., provided relief to a litigant whose parental rights were terminated.
"In light of these circumstances, we once again emphasize that S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. As Autumn H. points out, contact between parent and child will always confer some incidental benefit to the child, but that is insufficient to meet the standard. [Citation.] Moreover, given the unwarranted burden placed on this court and other courts by appellate counsels reliance on S.B. when the facts are not even arguably similar, we observe: Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice. [Citation.]" (In re C.F., supra, 193 Cal.App.4th at pp. 558-559.)
The Childrens Wishes
Mothers contention that the court erred by not considering the childrens wishes also is without merit. Section 366.26, subdivision (h)(1) requires the court at the selection and implementation hearing to "consider the wishes of the child." While the court may consider the childs wishes, it is required to act in the childs best interests, and a childs wishes are not necessarily determinative of a childs best interests. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) However, the court must only consider the childs wishes to the extent those wishes are ascertainable. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) A child may not be able to understand the concept of adoption. (In re Juan H. (1992) 11 Cal.App.4th 169, 173.) Moreover, although the court is obligated to consider a childs best interests at the section 366.26 hearing, the court need not follow the childs wishes unless he or she is over the age of 12. (§ 366.26, subds. (c)(1)(B), (h).) Thus, even though young children such as those involved here may want to live with mother, doing so may not be in their best interests and the court may nonetheless terminate parental rights.
Here, there was slight, if any, evidence that these very young children would prefer to live with mother. On the other hand, there was substantial evidence that the children would be better served by being adopted by the foster parents with whom they had lived for a great portion of their lives. Mother has not demonstrated error.
Conclusion
The record shows mother made a substantial effort to comply with her case plan, loved her children, and did what she was able to do to have them returned to her.
However, there is evidence in the record that her parenting skills were minimal and that the childrens behavior suffered after visits with her. At the time the court considers termination of parental rights, the focus is on the children, not on the mother. Substantial evidence supports the juvenile courts finding that adoption of these young children by their foster family is in their best interests. (See, e.g., In re Zachary G. (1999) 77 Cal.App.4th 799, 811 ["When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption"].)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
YEGAN, J.
James E. Herman, Judge
Superior Court County of Santa Barbara
Aida Aslanian, under appointment by the Court of Appeal, for Appellant.
Dennis A. Marshall, County Counsel, Gustavo E. Lavayen, Chief Deputy County Counsel, for Respondent.