Opinion
A119151
4-15-2008
In re L.P. et al., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. CINDY B. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
In a juvenile dependency action, the juvenile court terminated parental rights and placed six children for adoption. (Welf. & Inst. Code, § 366.26 [all further section references are to this code except as noted].) The parents appeal, and contend that termination would be detrimental to at least some of the children because the parents maintained regular visitation with the children and the children would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Cindy B. (Mother) seeks continued parental rights to one of the six children, and William P. (Father) challenges termination of his parental rights to four of the children. We affirm the order in its entirety, as to all children.
I. facts
In an earlier proceeding in this court, we affirmed the juvenile courts order terminating family reunification services and setting a section 366.26 permanent plan hearing. (Cindy B. v. Superior Court (June 25, 2007, A117639 & A117640) [nonpub. opn.].) We turn to a restatement of the pertinent facts from that earlier opinion before recounting more recent events.
The parents have a long history of child neglect. Mother has given birth to eight children, at least five of whom tested positive for drugs at birth. The Humboldt County Department of Health & Human Services (County) has received multiple referrals for the family beginning in 1993, when Mothers eldest daughter and second child was born with drug exposure. When Mother had her first child, she was 17 years old. Mother is now 33 years old. She began an unmarried relationship with Father around 1993. Mother and Father are the parents of the six children who are the subject of the order on appeal. The children range in age from three to twelve: L.P. (born in December 1995); A.P. (born in June 1998); S.P. (born in November 1999); M.P. (born in February 2001); R.P. (born in June 2002); and R.K.P. (born in August 2004). L.P. is a boy and the other children are girls.
This child and an elder child are Mothers children from a previous relationship. These children now live with their father and are not a subject of this appeal.
We use the childrens initials to protect confidentiality.
The current proceedings arose following the birth of the parents youngest child, R.K.P., in August 2004. Mother gave birth to the child at home. The baby girl was delivered by her half-sister who was then only 10 years old. Like her half-sister and other children born to Mother, the infant tested positive for amphetamine. The County did not detain the children and Mother agreed to voluntary services. Social workers investigated the family home (a trailer) and found mounds of dirty clothing covering the entire floor of one room, dirty dishes, a leaky roof, broken plumbing fixtures, and extensive clutter. The toilet was full of urine and feces and not in working order. The children had matted hair and lice infestations. Mothers eldest daughter, who was 10 years old, reported that Father beat Mother and the children. A neighbor also reported physical abuse of Mother and the children. On one visit, a social worker found that the ten year old was left alone in charge of the other children. On another occasion, Mother was home with the children but so fast asleep that the social worker had to shout several times to rouse Mother.
The County filed a juvenile dependency petition on December 14, 2004, charging Mother and Father with neglect. (§ 300, subds. (b)(3), (b)(4).) The court sustained the petition at a jurisdictional hearing on March 1, 2005. The court found that Mother "abuses controlled substances, which periodically render her incapable of providing appropriate care and supervision of the minors." The court also found that Father "failed to recognize the mothers substance abuse and the father failed to recognize that it impaired her ability to provide adequate care and supervision to the minors." The children remained in parental custody, and the County offered family maintenance services. The children were declared dependents of the court at a disposition hearing on August 15, 2005. The parents had separated, and the children were placed with Mother but continued to visit Father.
The parents reunited and, in November 2005, Father was arrested for battery upon Mother and child endangerment. (Pen. Code, §§ 243, subd. (e), 273a, subd. (b).) In December 2005, Mother was arrested on an outstanding warrant and the County placed the children in protective custody and filed a supplemental petition. The County reported that the parents failed to comply with the family maintenance case plan in operation since September 2004. The parents had been ordered to meet the childrens educational and health needs but the children were frequently truant, infested with head lice, and suffering from rotting teeth and lack of immunizations. Father was smoking marijuana in the family home, and Mother refused drug abuse intervention. The parents dropped out of a court-ordered parenting program. When Mother was arrested at the family home in December 2005, the arresting officer noted that "the odor of feces and mildew was over-powering." The residence was littered with rotting food in the living room, soiled diapers in the kitchen, and a soiled mattress on the living room floor. Photographs of the residence show that the children were living in filth.
In December 2005, the court authorized placement of the children in foster care and, the following month, sustained the supplemental petition. At the disposition hearing in February 2006, the court ordered compliance with a family reunification case plan. The case plan required that the parents live free from drug dependency, receive psychological and substance abuse evaluations, secure a suitable residence, parent appropriately, and complete domestic violence and parenting programs.
A six-month review hearing was held on October 2, 2006. The County reported that the parents visited the children but failed to comply with any other aspect of their case plan. Father had been arrested again, in March 2006, for battery upon a cohabitant. (Pen. Code, §§ 243, subd. (e).) The parents had not secured a suitable residence. The parents no longer lived in the McKinleyville trailer that served as the family home; they only received mail there. There was information that the parents had been evicted in May 2006. Mother did not provide a new residential address, only a telephone number, and Father said he was working out of town to raise money "to get a house." The County provided Father with applications and information on low-income housing. The County also offered assistance in completing the applications, but Father refused the offer.
The parents had also failed to sign the necessary release of information forms for performance of psychological evaluations until months after the disposition hearing. The disposition hearing, at which psychological evaluations were ordered, was held in February 2006. Yet, Father did not sign a release until June 2006, and Mother finally signed a release in July 2006. The County said that "[b]oth parents waited until they were sure they had to comply with the case plan requirements before they were willing to begin the process by signing the releases of information." The parents failed to attend domestic violence programs. Mother did not attend any parenting classes, and Father claimed (without substantiation) that he attended one class. Mother did not receive a substance abuse evaluation or any treatment for her addiction. Father was evaluated for substance abuse but failed to respond to the counselors recommendations that Father receive intensive treatment for substance abuse and a mental health evaluation. The court found that the parents made only "minimal progress" toward alleviating the problems that had necessitated removal of the children. The court continued reunification services and set the matter for another review hearing.
The 12-month review hearing was held on April 5, 2007. The County reported that the "parents have not participated in any of their court-ordered objectives." The parents rate of visitation was inadequate: Father visited only 70 percent of the time offered to him, and Mother only 39 percent of the time. The parents did not have stable housing, and were living apart. Father provided only a mailing address in Eureka, while working in another part of the county as a handyman and living at an undisclosed address. Mother was working as an in-home caregiver for a disabled man, sometimes spending the night there and other times staying with a relative. Mother received a psychological evaluation that had been delayed by Mothers failure to sign a release form. The psychologist concluded that Mother did not have a mental disorder but Mother showed "poor reality testing ability which may interfere with her ability to exercise good judgments and function sensibly in an organized manner as a parent consistently." Mother did not attend any domestic violence or parenting classes, and received no drug treatment. Father dropped out of a domestic violence program, and resumed it only when compelled to by the court in a criminal prosecution for domestic violence. The County recommended that reunification services be terminated and a hearing set to determine a permanent plan for the children. Child advocates appointed to represent the children likewise urged termination of reunification services and adoption of a permanent plan. At a contested hearing, the childrens attorney joined in the Countys position, and the findings of the child advocates. The court terminated reunification services and set the permanent plan hearing for July 30, 2007. The parents initiated separate writ proceedings challenging the courts order, which we consolidated for review and decision. In June 2007, we denied the petitions on the merits and affirmed the juvenile courts order. (Cindy B. v. Superior Court, supra, A117639 & A117640.)
The permanent plan hearing was continued until September 11, 2007, at Mothers request. At the time of the hearing, two of the children (L.P. and A.P.) were together in one foster home, and the other four children were together in another foster home. A County social worker reported that the two foster families wished to adopt the children they were caretaking, and that the "children have all connected emotionally and physically with their prospective adoptive parents." The social worker also noted that Mother and Father essentially had three years of services designed to reunite them with their children, and they were unable or unwilling to avail themselves of the opportunity and assume parental responsibilities. Moreover, Mother had visited her children only 50 percent of the time allotted to her from July 2006 to January 2007, and Fathers visitation was only "somewhat better." In the period from January through June 2007, both parents rate of visitation was down to about 50 percent. The children "suffered emotional turmoil" at these missed visits. The County recommended that the court terminate parental rights and place the children for adoption.
Counsel for the children advised the court that the five children who were old enough to express their wishes wanted to be adopted. R.K.P. was not yet three years old at the time, and too young to make a statement. Two of the children, S.P. and M.P., were strongly in favor of adoption. The youngest of those to express themselves, five-year old R.P., was the most conflicted over the prospect of adoption. R.P. has been in foster care since December 2005, when she was two and a half years old. According to counsel, R.P. "indicates that she wants to live with her parents," but "[s]hes okay with adoption" by her foster parents. Counsel said that R.P is "primarily [concerned] that she wants to remain with her sisters" who live in the same foster home.
A County social worker reported that R.P. "has been the most upset after visits or non-visits by her biological parents. She has been having trouble sleeping and has had some meltdowns after her parents came to visit or failed to do so, usually with no call to let the children know that they would not be visiting. [R.P] has been very unhappy because her parents come to visit and tell her she is coming home or going to live with her maternal grandmother and then, it becomes obvious even to a four year old that this is not going to happen. [R.P.] is becoming worn down by the continued mixed messages that she is getting." Despite R.Ps emotional upset, she was able to communicate her ultimate desire to be adopted. When the social worker asked R.P. if the girl wanted to be adopted, R.P. said "okay." Also, R.P. once "came into her foster mothers kitchen and asked, `am I going to be a [foster parents last name] when I am adopted." She was told yes, and R.P. replied, "good" and ran out of the room.
In addition to reviewing the social workers written report at the permanent plan hearing, the juvenile court also considered the testimony of the parents and two social workers. The court observed that the foster parents (who were also prospective adoptive parents) "have provided the children stability and care" and that, on balance, adoption was in the best interests of the children. The court found that termination of the parental relationship would not be detrimental to the children. Accordingly, the court terminated parental rights and placed all the children for adoption.
Ii. discussion
The juvenile courts first objective after a neglected child is removed from his or her parental home is to reunify the family. (In re Celine R. (2003) 31 Cal.4th 45, 52.) If those efforts at reunification fail, "`the focus shifts to the needs of the child for permanency and stability." (Ibid.) In selecting a permanent plan for the child, the Legislature has established adoption as the preferred choice. (Id. at pp. 52-53.) If a child is adoptable, as are the children here, "adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—`must be considered in view of the legislative preference for adoption when reunification efforts have failed." (Id. at p. 53, italics in original.)
Appellants Mother and Father rely upon one of these limited statutory exceptions in contending that they maintained regular visitation with the children and the children would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother makes this claim as to her second youngest child, R.P., who was the most conflicted over the prospect of being adopted. Father makes the claim as to four of the children.
Fathers appellate brief does not consistently identify the four children at issue. Fathers brief initially says the juvenile court erred when it terminated his parental rights to A.P., M.P., R.P., and R.K.P. However, Father then proceeds to state that he is not challenging the order as to S.P. and R.P. Perhaps the second reference to R.P. is in error, and Father means to refer to his son, L.P., who goes unmentioned? Resolution of Fathers apparent misidentification is unnecessary, as we find no basis for overturning the juvenile courts ruling as to any of the children.
The juvenile court found against appellants on their claim of a beneficial parental relationship and the courts determination must be affirmed on appeal if supported by substantial evidence. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) We have no power to reweigh the evidence or to exercise independent judgment; we simply determine if there is sufficient evidence to support the juvenile courts finding. (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 585.)
The County maintains that the abuse of discretion standard of review applies, rather than the substantial evidence standard. At least one court has applied an abuse of discretion standard in reviewing a juvenile courts finding that a beneficial parent-child relationship exception did not apply. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Mother says a majority of courts apply the substantial evidence standard, and asks us to adopt that standard. We need not resolve the issue. We are satisfied that the juvenile courts ruling is correct under either standard of review.
The fundamental question is whether 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., supra, 27 Cal.App.4th at p. 575.) The juvenile court "balances the strength and quality" of the relationship between the child and the biological parent "in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) Only if severing the relationship between the biological parent and the child would deprive that child of a "substantial, positive emotional attachment such that the child would be greatly harmed, [is] the [legislative] preference for adoption" overcome. (Ibid.)
The parental relationship must provide substantial benefits to the child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The "[i]nteraction between natural parent and child will always confer some incidental benefit to the child," but such an incidental benefit is insufficient to preclude termination of parental rights. (Ibid.; accord In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) The statutory exception to termination of parental rights applies only where a parent has maintained "regular visits and contact" with the child, and that contact has "continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The evidence firmly supports the juvenile courts finding that the beneficial parental relationship exception does not apply here. First, appellants Mother and Father did not maintain regular visits. As noted above, Mother visited her children only 50 percent of the time allotted to her from July 2006 to January 2007, and Fathers visitation was only "somewhat better." In the period from January through June 2007, both parents rate of visitation was down to about 50 percent. In their testimony at the permanent plan hearing, the parents provided no explanation for their missed visits aside from a vague and unsubstantiated claim of financial difficulties. Mother was asked: "what do you think the effect was on your children when you didnt show up for a visit?" Mother said, rather evasively, "[i]t was probably a strong effect." It was, indeed, a strong effect. A County social worker observed that "[t]he children have suffered emotional turmoil when their parents have failed to visit on a regular basis."
Appellants irregular visits did not continue or develop "a significant, positive, emotional attachment from child to parent." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent/child relationship, far from being positive and beneficial, was shown to be negative and detrimental. R.P., with whom Mother seeks to continue a relationship, has had "meltdowns after her parents came to visit or failed to do so, usually with no call to let the children know that they would not be visiting." A family visit in July 2007 left A.P. in tears. S.P. refused to visit with her Father in August 2007, and three of the other girls (R.P., R.K.P., and M.P.) tearfully asked to end that visit early and return to their foster home. A County social worker observed that the visits show that the children "continue to struggle with the ongoing stress, disorganization, and inconsistency of the visits with their family members," and the behavior of the parents at the visits has "a negative effect on [the childrens] behavior and wellbeing."
Mother argues that her relationship with R.P. should not be severed because R.P.s emotional problems stem from the childs "thought of being permanently separated from her parents." The record shows, however, that it is not the prospect of separation that upsets R.P.—it is the turmoil created by the uncertainty of her situation. As a social worker observed, R.P. "is becoming worn down by the continued mixed messages that she is getting," when her parents say she will return to them and yet fail to take any meaningful steps to accomplish her return—like regular visits. The children are entitled to permanency and stability. (In re Celine R., supra, 31 Cal.4th at p. 52.) The juvenile court properly found that appellants relationship with R.P. and the other children does not promote "the well-being of the child[ren] to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
III. disposition
The order is affirmed.
We Concur:
Reardon, Acting P.J.
Rivera, J.