Opinion
B204439
8-4-2008
In re MARISSA I., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ERIN W. and LUIS I., Defendant and Appellant.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant, Erin W.; Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant, Luis I. No appearance for Respondent. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, for Plaintiff and Respondent.
Not to be Published
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Erin W. and Luis I., the parents of the minor child Marissa I., (Mother, Father, and Marissa, respectively), challenge a section 366.26 order of the juvenile court that terminated their parental rights as to Marissa. Mother asserts the court erred because it did not find a compelling reason for determining that termination of her parental rights would be detrimental to Marissa because she and the minor child have maintained regular visitation and contact and Marissa would benefit from continuing that relationship.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Mothers position is based on language in section 366.26, subdivision (c), which provides, among other things, that if reunification services for a parent and child have been terminated and the dependency court finds by clear and convincing evidence that it is likely the child will be adopted, then "the court shall terminate parental rights unless" it finds that one of the statutory exceptions to termination of parental rights, which are set out in section 366.26, subdivision (c) (1) (A) and (B), applies to the case. Here, Mother and Father contend that exception (c) (1) (B) (i) applies to this case as to Mother, and therefore their parental rights should not have been terminated.
Exception (c) (1) (B) (i) prohibits terminating parental rights when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [¶] (i) [t]he parents hav[ing] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." This is known as the "parental relationship" exception to termination of parental rights. The numbering, but not the text of the exception was changed by the 2007 legislation that amended portions of section 366.26. Formerly the exception was in subdivision (c)(1)(A) of section 366.26.
Mother also argues that the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights (which was added in 2007 to section 366.26), supports her assertion that her parental rights should not have been terminated. That is, since Marissa was already placed with a relative, there was no need to terminate Mothers parental rights. The section 366.26, subdivision (c)(1)(A) exception states in relevant part that parental rights should not be terminated when "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child."
We do not agree that this exception shows that the Legislature intended for parental rights to remain in tact merely because a dependent minor is already placed with a relative. The purpose of the exception is to provide permanence for a child whose relative caretaker cannot or will not adopt the minor for reasons other than legal or financial responsibility. Here, the maternal grandfather was not unwilling or unable to adopt Marissa. He consistently stated that his preference is to adopt the minor. He first voiced that preference to the social worker when she was interviewing him for her April 5, 2007 report, and his stated preference prompted the social worker to initiate an adoption assessment in March 2007. The maternal grandfather voiced that preference for adoption again when he spoke with the social worker in September 2007, and he added that he hoped the court would come to a final decision of either adoption or guardianship so that he and the minor "could go on with their lives." Thus, although Mothers attorney represented to the trial court at the April 5, 2007 hearing that the maternal grandfather was interested in guardianship, and although the court stated: "Yes, he is," guardianship is not the maternal grandfathers preference.
Father joins in Mothers appellate position. He also contends that if we determine Mothers parental rights should not have been terminated then we must also reverse the order terminating his parental rights. The respondent in this case, the Los Angeles County Department of Children and Family Services (the Department), disputes that Father would necessarily have a right to reversal of the termination of his parental rights if the order that terminated Mothers parental rights is reversed.
Our review of the record convinces us there was no abuse of discretion on the part of the dependency court when it terminated Mothers parental rights. Therefore, we need not address the question whether the order terminating Fathers parental rights must be reversed.
The order from which the parents have appealed will be affirmed.
BACKGROUND OF THE CASE
1. Institution of The Case
The Department filed the section 300 petition in this case on October 7, 2005, when Marissa (who was born in September 2002) was three years old. Marissa had been removed from her home three days earlier and placed with her paternal grandmother (PGM) after a probation compliance search (for Father) of the home where the family was living turned up a loaded handgun (with the serial numbers filed off), three knives, and approximately 1.5 ounces of marijuana. The handgun was found under the mattress in a bed in which Father and Marissa were sleeping, and three knives were in a cabinet that stands approximately three feet from the floor. The gun and knives were assessable to Marissa. Father was 23 years old at that time. Mother was 21. They were living with Marissa in the three-bedroom home of the minors maternal grandmother (MGM). Mother was employed and Father stayed home to care for the minor. Mothers relationship with Father began when she was 16 years old.
Father has a history of convictions for infliction of corporal injury to a spouse and cruelty to a child/possible injury or death. The record shows those crimes occurred in April 2003, when Father was engaged in a prolonged, very violent attack against Mother. Mother had Marissa in her arms for much of the time she was being attacked by Father. At the time of the abovementioned probation compliance search, Father was on probation for those crimes. He also has a misdemeanor conviction of possession of marijuana.
A week before the probation compliance search took place, the Covina Police Department had been to the MGMs home because Father had threatened the gardener with a BB gun. When they responded to that call, the police department officers found five marijuana pipes in Marissas toy box and a taser gun, and all of those items were accessible to the child. Father was charged with brandishing a firearm. The Department was contacted for that incident and was in the process of determining a response to it when it was re-contacted because of the weapons and marijuana found at the probation compliance search.
When interviewed by the Departments responding social worker at the time of the probation compliance search, Mother denied knowing of the gun and marijuana but admitted knowing that the knives were in the cabinet. She denied there was currently any domestic violence between herself and Father but stated Father does have anger issues, and she was fearful of Fathers threats to "take" Marissa. She stated that in November 2004 she requested that a restraining order against Father for domestic violence be modified so that he could live in the MGMs home with her. Actually though, Father was living in the home before the modification of the restraining order, and the social worker observed in her detention report that Mothers permitting Father to reside in the home when there was a restraining order against his being there made it apparent that Mother was not protecting the minor from a volatile domestic situation. The police report from the incident of Father brandishing the BB gun states that Mother told the police she is afraid Father will hurt her.
The MGM was also interviewed by the social worker. She stated Father has a temper, he is a big person, she is fearful of him, she tries to keep the peace, she fears what Father might do to Marissa, and although she did not want him living in her home, she put up with him being there so that she would not "lose" Marissa. She denied knowledge of the gun and marijuana but suspected Father was using marijuana. She stated she was not aware there was a restraining order against Father because he continued to live in the home.
The marijuana found in the MGMs garage during the probation compliance search was in small baggies. There was a coffee blender with a green leafy substance in it, scissors with marijuana residue on them, and a lock box with marijuana residue in it. There was also a spoon with a substance on it that a police officer believed to be crystal methamphetamine. Both Mother and the MGM told the West Covina police officer that assisted in the probation compliance search that Father had unknown persons coming and going from the property at all times of the day and night. The MGM stated she believes Father sells and uses drugs. Father was found to have $680 (all in $20 bills) in his possession when he was searched. The police report states that at the probation compliance search, Father was arrested and charged with being an ex-felon in possession of a firearm, altering the serial number on a firearm, possession of marijuana with intent to sell, and probation violation.
2. The Detention Hearing
At the dependency detention hearing on October 7, 2005, the court found a prima facie case that Marissa is a person described by section 300. She was detained and placed with the maternal grandfather (MGF) who lives by himself. Mother was permitted to move into the MGFs home to care for the minor until the time that Father was released from his incarceration, at which time the issue of where Marissa would reside would be revisited. Father was permitted visits with the minor at a Department office, to be monitored by a social worker, when he was released from incarceration. The court found that Mother was not competent to protect the minor given that she permitted Father to stay in the home despite the fact that he had weapons and was not supposed to have them, the weapons were not secure, there were drugs, and she was afraid of him. The court stated Mother needed to begin individual counseling to work on self esteem issues and to enroll in domestic violence counseling for abused victims.
3. The Jurisdiction/Disposition Hearing
When the social worker who prepared the Departments report for the November 3, 2005 jurisdiction/disposition hearing questioned Mother about the very serious domestic violence that Father perpetrated against her in April 2003, Mother greatly downplayed the incident. The MGM told the social worker that Father is manipulative and controlling both towards Mother and herself, and he "badgers" Mother "relentlessly" until he changes her mind about things. Unlike her earlier statement at the time of the probation compliance search, Mother denied that Father has people coming and going from the MGMs premises at all hours of the day and night. She said she knows everyone who comes to the home and they are her friends. She stated the knives that were found at the time of the probation compliance search were pocket knives and Marissa never goes to the cabinet where they were found. She stated that her relationship with Father grew stronger after his violence against her in 2003 because of what he learned in his domestic violence classes.
Father told the social worker he only had the gun under the mattress for protection because two months before the probation compliance search the MGM had called 911 because there were strangers threatening to shoot her and the police never came and so Father determined that a gun was necessary. He denied that Mother knew he had the gun and denied she knew he had the marijuana. He denied the marijuana was for sale, saying it was only for his personal use, it was cheaper to buy it in a large quantity, and he used it away from the home. He stated he completed a one-year anger management class pursuant to a 2003 court order and had nearly completed one-year parenting classes when he was arrested in October 2005. Like Mother, he also downplayed the 2003 domestic violence matter. Regarding Marissa, the social worker opined that it appeared that Father took adequate care of the minor. After his arrest at the probation compliance search, Father was convicted and sentenced to state prison on October 27, 2005. He was sentenced to two years less time served.
Mother was enrolled in parenting and domestic violence counseling. She was residing in the home of the MGF, where Marissa had been placed by the court, and she understood that her contact with the minor outside the home had to be monitored. Mother stated Marissa was afraid Mother would leave her because Marissa saw Father being led away from the home in handcuffs. The MGM stated the minor was angry with the MGM, told the MGM "you left me," and tried to hit the MGM.
At the November 3, 2005 jurisdiction/disposition hearing, the court sustained the allegation in the section 300 petition that the parents established a home environment that endangers and is detrimental to Marissa in that a loaded firearm and three knives were found in the home within access of the minor as were five drug pipes; marijuana and other drug paraphernalia were also found at the home; Father was arrested for possession of the firearm and possession of marijuana with intent to sell, and child endangerment; and all of this places the minor at risk of physical and emotional harm.
Marissa was declared a dependent child and placed with Mother under a home of parent order so long as Mother resided with the MGF. Mother was ordered to abide by the rules of the house set by the MGF. She was ordered to individual counseling to address adult and parental responsibility and self esteem issues, and domestic violence issues. (Although the reporters transcript for the hearing does not indicate that the court ordered parenting classes for Mother, the minute order states parenting classes were ordered, and at the May 4, 2006 six-month review hearing, the court spoke of parenting classes as though Mother had been ordered to attend them.) The court also ordered that the parents engage in couples counseling when Father was released from prison if they desired to be together, and if they were not going to be together, to consider a program that would help them communicate better with each other.
The court ordered a case plan for Father, who completed very little of it by the time his parental rights were terminated. We have not addressed his case plan in our opinion because his issue in this appeal rests on Mothers claim that her parental rights were not properly terminated.
4. The Section 364 Six-Month Review Hearing
A section 364 six-month review hearing was set for May 4, 2006. The Departments report states Mother continued to reside with the MGF, she was no longer employed but was seeking employment, and she planned on enrolling in Everett College to obtain an AA in criminal justice. She had written to Father several times since his incarceration in September 2005, and she and Marissa had spoken with him once on the telephone when they were at the PGMs home. The MGM and MGF were not permitting Marissa to speak with him at their homes.
Marissa was doing well. She appeared to be very attached to Mother, and happy and comfortable in the presence of Mother and the MGF. The social worker and Marissas pre-school teacher found the minor to be happy, talkative, curious and intelligent.
Regarding Mothers case plan, in mid-April 2006 Mother told the Department social worker she had been evaluated on April 4, 2006 at the Center for Integrated Family and Health Services (Family Center) for individual counseling but did not know who her therapist was. By April 20, the facilitator at the Family Center did not have any information regarding whether Mother was enrolled in individual counseling, and by the end of April the social worker still had not been able to obtain information.
Mother enrolled in a 20-week parenting program on October 13, 2005 at the Family Center. On April 19, 2006, the facilitator there told the social worker that Mother had only attended 12 sessions and the facilitator intended to "close [Mother] out."
Mother enrolled in a YWCA-Wings domestic violence program on October 31, 2005 and was scheduled to attend classes on Wednesdays. A January 26, 2006 letter from Mothers case manager at the program states Mother was attending a domestic violence support group. She was present for three of five sessions in November 2005, three of four sessions in December 2005, and one of four sessions in January 2006. The letter states Mother would benefit from continued participation in the program. A letter from the program dated April 21, 2006 states Mother attended one session in February and one in March 2006. Thus, by April 21 Mother had only attended nine weekly sessions. A phone call from the social worker to the case manager on April 17, 2006 revealed the case manager intended to speak with Mother to find out whether Mother would continue in the program and if not, the agency would close Mother out. The social worker indicated in her report that during her phone call with the MGF on April 12, 2006, the MGF indicated that Mother was at her program, however the letter from the agency stated the last session that Mother attended was on March 8, 2006.
The discrepancy between what Mother was telling the MGF and what the domestic violence program was reporting to the Department was confirmed during a phone conversation between the social worker and the MGF on April 17, 2006, when the MGF expressed doubt regarding whether Mother really was attending her programs on Wednesdays and Thursdays when she said she did. On April 24, 2006, the domestic violence program case manager told the social worker she had left many messages on Mothers cell phone since April 17 but Mother had not returned any of the calls and if the case manager did not hear from Mother within a week she would close out Mothers case.
Mother told the social worker she wanted to return to living with Marissa at the MGMs home. The MGF told the social worker he did not think that would be a good idea because Mother still needed his supervision. He stated he felt he should be aware of where Mother is at all times but he cant get a hold of her. He opined that if Mother is attending counseling it was "not doing anything for her." Noting that Mother was not in compliance with her case plan, the Department recommended she be given another six months of family maintenance services to complete the programs she was ordered to attend.
At the May 4, 2006 six-month review hearing, Mothers attorney indicated Mother had resumed attending her classes. The court found she was in partial compliance with her case plan and ordered six more months of family maintenance services to make sure Mother completed the plan. The court set a section 364 12-month review hearing for November 2, 2006 with a goal to terminate services at that time.
5. The First 12-Month Review Hearing
The Departments report for the November 2, 2006 12-month review hearing shows Marissa continued to live with Mother at the MGFs home. The social worker reported the minor was doing well there and at preschool.
Although Mother had previously indicated she would continue her education by enrolling in a criminal justice course, she had not done so. She remained unemployed, told the social worker she makes applications for work, and stated she receives no calls from the applications. The MGF reported that he had no idea what Mother did with her time after she dropped Marissa off at preschool, and since Father had been released from prison on October 12, 2006, Mother was spending a majority of her time with him.
Regarding Mothers progress in her case plan, she was given bus passes for August and September 2006 because she reported she had no transportation. On October 17, 2006, the Family Center reported Mother had initially gone through its intake process for individual counseling on October 13, 2005 but never responded to the Family Centers calls to schedule a follow up appointment. Then in May 2006 the Family Center resumed attempting to contact Mother but had no success and so it closed her case. In July 2006 Mother was seen at the Family Center and again placed on its list for individual counseling. By August 11, 2006 the Family Center had left messages for Mother asking whether she was interested in individual counseling but did not hear from her. The Family Center informed the social worker in October 2006 that Mother had come by and asked about enrolling in individual counseling and was informed that the $3 per session program was closed and she would have to pay $25 per week for individual counseling. Mother left the Family Center without indicating whether she wanted to enroll in that program and as of October 20, 2006 had not yet enrolled.
Concerning the parenting class component of Mothers case plan, as noted above she enrolled in the Family Centers parenting classes in October 2005 and by February 9, 2006 had completed 12 sessions. She went to the Family Center on April 18, 2006 to re-enroll but did not attend the next scheduled session. Her case was closed out again. Then on July 25, 2006, Mother re-enrolled again and by August 8, 2006 had completed another two sessions. The Family Center closed Mothers parenting class case on October 2, 2006 due to her lack of attendance. By that time she had attended 14 classes, with 20 classes needed for a certificate of completion. She sat in on a session on October 17, 2006 but was informed she had been terminated from the program. She met with the facilitator on October 19, 2007 and pleaded to be let into the program for the fourth time. The facilitator agreed to let her back in but only on the condition that she not miss any sessions and so Mother was re-enrolled again on October 19, 2006, thus having enrolled four times for parenting classes at Family Center.
Also as noted above, Mother enrolled in a YWCA-Wings domestic violence program on October 31, 2005 and by April 21, 2006, she had only attended nine weekly sessions. She was terminated from the program on May 11, 2006. She re-enrolled on September 14, 2006 and by October 10, 2006 had missed two sessions. On October 11, 2006 the case manager spoke with Mother and Mother stated she would attend a session the next day but did not do so. She was again terminated from the program on October 16, 2006.
Although Mothers case plan did not call for her to engage in drug testing, because of concerns expressed by the MGF regarding whether Mother was using drugs, on August 14, 2006, the social worker asked Mother to voluntarily submit to an on demand drug test and Mother agreed to. The social worker submitted an on demand drug test referral for Mother for that very day but Mother did not appear for the test and when asked why she did not take the test, she told the social worker she forgot. On October 18, 2006 Mother was again asked to submit to an on demand drug test for that date and again she agreed to the test, but did not do so. She told the social worker she had no transportation.
Since his release from prison, Father was living with the PGM. Mother set up an appointment for herself and Father to meet with the social worker on October 17, 2006 at 9:30 a.m. but they did not keep the appointment. The following day Mother called to say she had not kept the appointment because she was attending a parenting program and Father had not kept the appointment because he did not have transportation. The meeting was rescheduled for October 19, 2006 at 11:00 a.m. but Mother called at 10:42 a.m. and stated she was waiting for her car to be towed to the paternal grandfathers auto shop. The meeting was rescheduled for 2:00 p.m. for that same day and the parents arrived at the meeting at 3:16 p.m.
Although the social worker had informed Father in a phone call in September 2006 that upon his release from prison he should contact the social worker prior to visiting with Marissa, the social worker received notice from the MGF that as of October 18, 2006, Father had been visiting the minor daily since he was released on October 12, 2006 even though he had not made contact with the social worker. Further, the PGM had been permitting Father to take the minor out of the PGMs home during visits. Also, when the social worker visited the minor on October 12, Marissa said she had visited with Father that day, and on October 17 Marissa reported to the social worker during a visit that she had seen Father that day and the previous day. Asked if anyone had told her not to tell the social worker that she was seeing Father, Marissa replied that Mother had given her that instruction.
The social worker advised Father on October 18, 2006 that he could visit with the minor once a week for one hour with the PGM monitoring the visits, and the PGM stopped by the Department office the next day and signed a Department form that sets out the duties of monitoring visits, and an affidavit indicating she understood her duties for monitoring Fathers visits and she understood that if she did not abide by her duties, her visits with Marissa could also be monitored in the future.
Because Mother had been repeatedly terminated from her parenting and domestic violence classes and had never completed either program, and because she had never begun individual counseling, the MGF indicated to the social worker he was distressed because it appeared there were no consequences to the fact that Mother was not complying with the court orders. Further, he worried there did not appear to be any way to stop Mother from taking the minor and visiting with Father whenever she pleased since she was allowed to take Marissa out of the MGFs home.
At the November 2, 2006 12-month review hearing, Mothers attorney asked that a team decision meeting be arranged to determine whether Mother could be permitted to move with Marissa into the MGMs home or if not, move with Marissa to a place of her own. Marissas attorney voiced concern that Mother was not in compliance with her case plan, and she observed that Mothers living with the MGM had been a concern for the dependency court when the case was first filed, and the home of parent order for Mother was issued only on the basis that Mother reside with the MGF, not the MGM. Marissas attorney indicated the MGF was concerned that Mother was taking Marissa to the PGMs home where Father lives and the MGF did not know if the visits were properly monitored. The attorney asked that if there was to be a team decision meeting the MGF be permitted to attend, and the MGF stated he would be willing to attend.
The dependency court indicated it was very troubled that the Department had made a recommendation that the court continue the home of parent order for Mother. The attorney representing the Department indicated he thought the Department made that recommendation because Mother and Marissa were living with the MGF, whom the attorney described as someone who "appears to be the only one whos truly interested in the well being of this child." The court responded that with a home of parent order for Mother, "Mother is taking the child over to ____ I just dont see why this is the recommendation [of the Department]. I dont understand it." The Departments attorney agreed, saying that Mother was "making a complete mockery of these proceedings." The court responded that Mother had been repeatedly terminated from her programs in the year since the court made the case plans for the parents.
In defense of Mother, her attorney represented that Mother was back in parenting class and was near completion of the required 20 classes. Mother stated she had completed 19 of the 20 classes. She acknowledged it was her fourth enrollment in parenting. Her attorney stated Mother had finally begun individual counseling, had attended one counseling session prior to the hearing, and was scheduled to have another the next day. The attorney also stated Mother had voluntarily tested twice for substance abuse.
The court put the matter over to give the Department an opportunity to file a section 387 supplemental petition. It ordered that Fathers visits with the minor be monitored by any appropriate monitor and the social worker would work that out with Father.
Section 387 provides in relevant part: "(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition.
"(b) The supplemental petition shall be filed by the social worker in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3.
6. The Section 387 Supplemental Petition
The Department filed its section 387 supplemental petition on November 8, 2006. Marissa was four years old at the time. The supplemental petition alleges Mother failed to complete her case plan and such failure endangers Marissas health and safety and places her at risk of serious harm. The petition recommended that Marissas placement be modified from home of parent (Mother) to placement in the care of the MGF.
According to the November 8, 2006 detention report filed for the supplemental petition, the Department detained the minor from Mothers care on November 3, 2006, placed the minor in the care of the MGF, and informed Mother and the MGF that Mother is no longer permitted to reside with the MGF because of the minors placement there. The reason for the removal from Mothers care was stated to be Mothers noncompliance with her case plan. The Department informed Mother and the MGF that Mothers visits with Marissa were to be monitored.
The detention report does not mention the new parenting and counseling sessions reported by Mother and her attorney at the November 2, 2006 12-month review hearing. Instead, the report states Mother had not informed the social worker whether she had re-enrolled in domestic violence and individual counseling programs, and/or enrolled in a couples counseling program with Father.
7. The November 8, 2006 Hearing on the Supplemental Petition and 12-Month Review Hearing
At the November 8, 2006 combination detention hearing for the supplemental petition and continued 12-month review hearing, the court indicated it had received a certificate showing Mother finally completed her parenting classes. Mothers attorney indicated Mother had re-enrolled again in domestic violence classes and was prepared to "take this very seriously and complete all her programs."
The court found a prima facie reason for detaining Marissa and finding she is a person described by section 300, subdivision (b), and directed the Department to detain her in the home of the MGF. Family reunification services were ordered. Mother was given monitored visits. The MGF, who is a full time teacher and a high school coach, indicated he would like either Mother or the MGM to come to his house in the mornings and evenings to help him with getting the minor ready for school and for bed. The court ordered that arrangement, with the MGF to monitor the mothers time there.
The case was continued to November 30, 2006 for a jurisdiction/disposition hearing on the supplemental petition and further review hearing.
8. The November 30, 2006 Continued Hearings for the Supplemental Petition and the 12-Month Review
According to the Departments report for the November 30, 2006 12-month review and the jurisdiction/disposition hearing on the supplemental petition, Mother re-enrolled in the YWCA-Wings domestic violence program but then missed an appointment, and due to Mothers prior and current lack of commitment, the program referred her to House of Ruth for further services.
The parents enrolled in private individual and couples counseling on November 16, 2006 and had counseling sessions on November 20 and 27. (A letter from the counselor, dated November 27, 2006, states the parents were receiving therapy "for issues pertaining to domestic violence and couples counseling since 11-16-06. They have kept all appointments and seem to be invested in the treatment process.") The counselor indicated it was too soon to discuss their progress.
Marissa was reported to be doing well in the care of the MGF. She was attached to him, and he told the social worker he could continue to care for her while the parents completed their case plans. The Department recommended that the court order Marissa suitably placed with the MGF.
Because Mother had completed parenting classes, the Department amended the allegation in the section 387 supplemental petition so that it stated that with the exception of parenting classes, Mother had failed to complete her case plan. At the November 30, 2006 hearing, the parents submitted on the social workers report and the court sustained the amended allegation.
Regarding placement of Marissa, the court observed that although the case plan had been in place for a year, Mother had not "demonstrated the ability to assume adult and parental responsibility. Youve been relying on your father. [¶] You have to do what you are supposed to do so I know you are competent when you move out. Its easy to let somebody else be the adult[]." The court advised Mother that she only had until April 2007 to "assume proper responsibility for [Marissa]" and if she could not "do it by April, the child is going into a permanent plan. That could be adoption, long term foster care, or guardianship. You have to grow up. More expediently, quickly, fast, today."
The court found that the parents were not in compliance and that the home of parent order for Mother made at the November 3, 2005 disposition hearing had not been effective in protecting Marissa. That order was vacated and the court ordered that the MGF would have custody and the parents would have reunification services. Unmonitored visits were ordered for Mother. The court permitted Mother to assist the MGF in caring for the minor and stated that she could resume living in the MGFs home but she had to understand that she must do her programs, and that she would not be in charge, she would not have custody, and she would not be the primary caretaker. The court indicated the MGF had used "appropriate judgment throughout." The court granted Father monitored visits, ordered that Mother not be the monitor, permitted Mother to be at Fathers visits, and permitted Fathers visits to be extended in time.
The case was continued to April 5, 2007 for a section 366.22 permanent plan hearing.
9. The April 5, 2007 Section 366.22 Hearing
The Departments report for the April 5, 2007 section 366.22 hearing states Marissa continued to be happy and thrive in the MGFs home, and to be in day care at a Montessori school. Mother was living with the MGM "rent free," and was not working or attending school. Neither the social worker nor the MGF knew what Mother did with her days after she dropped the minor off at day care. The MGM gave her a used car to use so that she could complete her case plan and find a job, and Mother told the social worker she had been interviewing for employment.
Mother stated she continued to attend the domestic violence counseling at the YWCA Wings program on Wednesday evenings and had attended 12 of 16 sessions, she was in individual counseling on Tuesday afternoons, and continued in her marriage and individual counseling that she and Father began in November 2006. Mother stated she wanted to finish all of her case plan before she looked for employment. She stated she had a full time job as a waitress at a Dennys from January 7 to February 8, 2007, but Father called her so often at the restaurant that she had to quit the job. She stated he would call her and then hang up. She stated it was a period of time when she was trying to not see Father, and when she goes out with male friends, the PGM finds out and tells Father.
Regarding the domestic violence classes, the record shows that although the YWCA Wings program had previously referred Mother to House of Ruth because of Mothers continued lack of commitment to the YWCA program, she was allowed back into the YWCA Wings support group program on November 28, 2006. The program has weekly sessions, and a March 22, 2007 report from the YWCA shows Mother attended three sessions in December 2006, four in January 2007, two in February 2007, and by March 22, 2007 had attended one session in March. The report states Mother actively participated in the group discussions and would complete the support group in six more sessions.
Mothers and Fathers individual and marriage counselor, Charles Gustafson, stated he could not give the social worker an update on the parents because the social worker was new to the dependency case and the parents had to sign a new release for information to be given to the Department. Gustafson stated he would obtain the parents release and prepare a report for the Department for the upcoming April 5, 2007 section 366.22 review hearing. However, no report was forthcoming by the time of that hearing.
At an interview with Father in December 2006, the social worker informed him that his drug test on December 13, 2006 was positive for amphetamines and methamphetamines. Fathers explanation was that since he does not use drugs, the positive test must have been due to his being around people who do use drugs. On January 31, 2007, he tested positive for amphetamines, methamphetamines and cannabinoids. He had a negative test once in October and November 2006, and once in January 2007. He was a "no show" for drug testing once in November 2006, twice in January 2007, twice in February 2007, and once in March 2007 before he was taken into custody for parole violation on March 14, 2007. After his arrest for the parole violation, he remained incarcerated pending an investigation. His parole officer told the social worker Father tested positive methamphetamines in January 2007.
Regarding visitation between Marissa and Mother, the MGF reported that Mothers visits with the minor came in the form of Mother coming to the MGFs home in the morning and helping the MGF get the minor ready for school, and to his home in the evening to give her a bath and put her to bed. He stated that Mother assisted him with Marissa 12-14 times in December 2006 and January 2007, 7-8 times in February 2007, and 4-5 times in March 2007. The MGF stated Mother essentially comes to assist with Marissa when she wants to.
The MGF stated Marissa enjoyed her visits with Father and was happy to see him. He stated that since Father was released from prison in October 2006, Father visited the minor twice a week in October through December 2006, and since then he had not scheduled a visit with the child. However, it was learned that the PGM was using her visitation time with Marissa to allow the parents overnight visits with the minor at the PGMs home. In February 2007, the Department informed the PGM and Father that henceforth their visits would be monitored.
The MGF sent a letter to the dependency court in March 2007 in which he set out his concerns about Marissa and her parents. He stated he did not believe Mother was ready to be a full time parent to Marissa. She was not consistent in maintaining employment, nor was she going to school. She depended on others for shelter, transportation and money. She did not like the rules the MGF had in his house and so she no longer lived there full time. (Mother had moved back into the MGMs home in Covina, and the MGF lives in West Covina.) Nor was she maintaining her motherly duties of getting Marissa off to school in the morning and putting her to bed at night. The MGF opined that Mother was not ready to be a full-time mother to Marissa. However, he acknowledged that Mother had "displayed at times motherly instincts and the love she has for her daughter."
As for Father, the MGF stated Father had not been visiting with the minor and did not contribute towards her welfare, and he relied on others for his shelter, food and money. The MGF also expressed concern that Fathers family was disregarding the courts orders regarding monitored visitation. The MGF opined that Mother and Father are not positive role models for Marissa. They cannot follow rules and boundaries set by their parents, the court, or any type of authority; they are not motivated to obtain employment; and Father does not have a high school diploma. The MGF opined that he and the MGM could provide the minor with a stable environment, surround her with positive role models, and provide her with a good education. He opined that the parents had been given sufficient time to prove themselves, and he requested the he be given permanent custody of Marissa.
The MGF told the social worker he would adopt the child if she did not reunify with either parent, and the social worker initiated an adoption assessment. Marissa told the social worker she is happy living with the MGF. The Department recommended that the court terminate family reunification services, order permanent planning for Marissa, and set a section 366.26 hearing.
At the April 5, 2007 section 366.22 hearing, the court found that the parents had not made sufficient progress in their case plans. It terminated reunification services and set a section 366.26 hearing for August 2, 2007, stating that both adoption and guardianship for the MGF would be addressed at that hearing.
10. The Section 366.26 Hearings
a. August 2, 2007
The Departments report for the August 2, 2007 section 366.26 hearing shows that Marissas teacher reported she was doing well. Although Mothers visits had been unmonitored since November 30, 2006, the social worker advised the MGF that henceforth he was not to leave the minor alone with Mother because on July 20, 2007, Mother had neglected to pick up Marissa from school.
The social worker opined it was highly likely that the MGF would be approved to adopt Marissa. The adoptive home study was expected to be completed within 30 days. The MGF, who was 55 years old, was not interested in a kinship adoption agreement at that time.
Kinship adoption agreements (Fam. Code, § 8616.5) "allow[], under certain circumstances, the adoptive parents, the birth relatives [including the birth parents or an Indian tribe], and the child, to enter into an agreement regarding continuing contact and/or visitation between the child and designated birth relatives." (In re Kimberly S. (1999) 71 Cal.App.4th 405, 407.)
Kinship adoption agreements are part of the adoption proceeding and if they are approved, it is by the court that grants the adoption petition. (In re Kimberly S., supra, 71 Cal.App.4th at p. 412.) Thus, they are given effect after parental rights are terminated; they do not prevent such termination. (Id. at p. 414.) A kinship adoption agreement will be approved by a court only if it is in the best interests of the minor when the adoption petition is granted. (§ 8616.5, subd. (b)(1).)
When a dependent child is the subject of the adoption, dependency jurisdiction is terminated when the adoption petition is granted and the order of adoption issues. Enforcement of the kinship adoption agreement is through the court that granted the petition of adoption. (§ 8616.5, subd. (f).)
Father was in prison and his expected release date was January 6, 2008. Mothers visits with the minor (coming to the MGFs home to assist in Marissas care), continued to be inconsistent. The Department recommended that Mothers visits with the minor be monitored and that the court find adoption as the permanent plan for Marissa.
At the August 2, 2007 section 366.26 hearing, Mother requested a contest on the issue of a permanent plan. The court put the section 366.26 hearing over to October 4, 2007.
b. October 4, 2007
On September 21, 2007, Mother told the social worker she was working part time as an accounting assistant. She stated she completed her domestic violence classes at YWCA Wings in May or June 2007 but had not had a chance to pick up her completion certificate and she would have the certificate by the October 4, 2007 court hearing. Mother also told the social worker that since August 2007 she was in individual counseling with a Dr. Shester at Shester Counseling Services and she sees Dr. Shester once or twice a month. She stated she would sign a release of information form that same day (September 21) so that Dr. Shester could provide the social worker with a report. The social worker indicated in her report to the court that she would forward Dr. Shesters report to the court when it was received.
By October 4, 2007, the adoption home study for the MGF was approved. Marissa was five years old at the time and attending kindergarten. She was reported to be achieving above grade level, interacting appropriately with her peers, and not presenting behavior problems at school. She was observed to be happy, healthy and thriving in the MGFs home. She told the social worker she was happy living there.
Mother told the social worker she was against the MGF adopting Marissa. Father did not make himself available for a statement regarding a permanent plan. However, he sent a letter to the Department asking what he needed to do to regain custody of the minor.
The MGF reported that Mothers visits with Marissa and assistance with her care had increased since March 2007 when she only came to his home four or five times. However, she was still inconsistent in that from April through July 2007 she had only assisted him 12 to 14 times each of those months. Moreover, although after the initial section 366.26 hearing on August 2, 2007 Mother had been more consistent with assisting him in the mornings preparing the minor for school and in the evenings preparing her for bed, Mother still did not have a fixed schedule and she tended to come to his house when she pleased. The MGF stated he wished to adopt Marissa and was hopeful the court would make an order for adoption or legal guardianship so that he and the minor could get on with their lives.
At the October 4, 2007 section 366.26 hearing, the court continued the case again because Mothers prior attorney had retired and the new attorney had just met Mother and been given the Departments report. The new hearing date was November 15, 2007.
c. November 15, 2007
The November 15, 2007 section 366.26 hearing was held in the afternoon. Mothers attorney represented to the court that Mothers pants had ripped during the lunch hour, and although Mother had gone home to change her clothing she was not yet back in court for the afternoon hearing. The court indicated it was 2:00 p.m. and it had to hear the case at that time because it was also scheduled to hear "several custodies that have to be out of here."
Mothers attorney represented to the court that Mother was visiting Marissa almost daily, was integral in her daily care, and "apparently is almost the primary caregiver for the child on a daily basis." The court stated that the attorneys description of Mothers interest in the minor was "not indicated in the reports," and Mothers attorney replied that the October 4 report was not indicative of recent events. The court observed that the October 4 report was only a month old, and it asked the attorney from whom she had received information that Mother was at the MGFs home almost every day. The attorney stated the information came from Mother and from the MGM and the maternal aunt, but the court asked whether the aunt lived with the MGF and the attorney acknowledged the aunt did not. The PGM spoke to the court but acknowledged that she did not go the MGFs house, and the court concluded that she "cant say what goes on in that house."
The MGF told the court that Mothers visits continued to be inconsistent, and in August through October Mother came to his home 12 to 14 times each month. The court noted November was half finished, and the MGF stated Mother had come to his home four or five times since the beginning of November. He stated that in October 2007, Mother began picking up Marissa from school every day, but because she had recently started a new job he would resume picking up Marissa from school. He stated Mother does not stay at his home when she picks Marissa up, she just takes the child to his house. Mothers attorney stated Mother told her that Mothers not picking up Marissa from school that time in July 2007 was a misunderstanding in that it was Mothers understanding that she was not the person to pick up the minor from school that day.
The court asked Mothers attorney why Mother had not filed a section 388 petition to have the minor returned to her care if Mother was caring for Marissa all the time. The attorney stated she (the attorney) had sent the matter out for investigation but the investigation was not completed. The court responded that an investigation is not needed to file a section 388 petition.
Marissas attorney indicated she was in agreement with the Department that the adoption should go forward. She stated the MGF had "shown no indication that he will thwart a continued relationship with the mother in the future."
After these discussions, Mother appeared for the hearing. The court admonished Mother that she should not have been late for the hearing, and it gave Mothers attorney an opportunity to speak with her. After speaking with Mother, the attorney indicated Mother told her that she gets Marissa ready for school every morning and takes her to school and when her job permits, she picks the minor up from school, and additionally, she is the person who gets the child ready for bed.
The court indicated the MGF does not dispute that Mother assists him but does dispute that Mother comes to his house daily to care for the minor. The court further indicated that even if it were true that Mother is always the person who gets Marissa ready for school, drops her off, and then picks her up from school and gets her ready for bed, the reality is that Mother has never taken responsibility for Marissa "and as a result, the childs home is with [the MGF]." The court stated that Mothers who are interested in having their children returned to them "file petitions and make that request. And this mother hasnt done it." Mother replied: "Your Honor, I didnt have any petitions. As soon as I did, I did print out the beginning of the 388 and started to fill that out." However, the court observed that Mother had not demonstrated that she is in a position in her life where she is able to care for a child and thus after two years of dependency court intervention the minor remained with the MGF. Later in the proceeding, the court stated its belief that Mother "ha[s] been comfortable with the situation as it is."
In analyzing the section 366.26, subdivision (c) (1) (B) (i) exception to termination of parental rights (see fn. 2, ante), the court noted that Mother visits the minor on a regular basis and assists in doing things a parent does for her child, and that the minor would receive a benefit from continuing Mothers position as a parent. However, the court stated that when presented with the question whether the benefit that Marissa would receive from continuing that relationship with Mother is outweighed by the stability the minor would receive from having a life with the MGF in the home that she has known for a substantial portion of her life, the court found that it was in the minors best interests to have the uninterrupted permanence of an adoption rather than be placed in a less than permanent living arrangement and face the "roller coaster" possibility that her life would be interrupted by Mother seeking placement of the child with her. The court further noted that Marissa is happy in the MGFs home. Regarding Father, the court found that there is also no section 366.26, subdivision (c)(1)(B)(i) exception as to him.
The court terminated the parents parental rights and immediately thereafter, Mother spoke up and asserted that (1) Marissa spends a few nights of every week at the MGMs home, (2) it is Mother and the MGM who pay for all of Marissas expenses, not the MGF, and (3) the MGF is not able to care for Marissa on his own and if he adopts her someone will need to assist him with Marissas care. The court asked the MGF if these things were true and the MGF stated they were not. Then Mother asserted that it is really she who raises Marissa, not the MGF, and that Marissas school stated that the minor is doing better now that Mother and the MGM "are there" and the school does not agree with the adoption.
The court observed that Mother had produced new information despite the fact that she had over a month since the case was last continued to consult with her attorney and prepare to present proof of such things to the court to dispute the Departments reports. The court asked the minors attorney for information, and the attorney indicated she had an investigator investigate the MGFs home and see the minor and the MGF, and the investigator also spoke with the MGM. Marissa told the investigator she plays with Mother. The investigator stated Marissa knows her home as the home of the MGF and is happy with her toys at her home. Mother disputed that and asserted the minor child means the home of the MGM when she talks about her house, and Mother asserted the social worker always visits the minor at her school and had not been to the MGFs home in months. The MGF stated the social worker was at his home at the end of September, and the court observed that the social workers report states the social worker was visiting the minor and the MGF monthly, and further, the adoption home study of the MGFs home was approved.
After the hearing was concluded, the parents filed timely notices of appeal.
DISCUSSION
1. Parental Burden of Proof in Claiming a Statutory Exception to Termination of Parental Rights
If a dependent child is likely to be adopted (and here, the parents do not contend that Marissa is not likely to be adopted), then termination of parental rights and an order for adoption of the minor is the Legislatures preferred plan at section 366.26 hearings. (§ 366.26, subd. (b)(1); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) At that point in time, reunification services have been terminated and thus "the parents interest in reunification is no longer an issue and the childs interest in a stable and permanent placement is paramount." (In re Jasmine D., at p. 1348.)
Parents who claim a section 366.26, subdivision (c) (1) exception to termination of parental rights and adoption of their child have the burden of proof on the issue. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) They must demonstrate to the trial court that the exception applies to their child. As noted in footnote 2, the parental relationship exception to termination of parental rights, which the parents in this case assert applies to Mothers relationship with Marissa, provides that parental rights should not be terminated if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to . . . [¶] (i) [t]he parent[] hav[ing] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
To establish the applicability of that exception, a parent must show more than "`frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.]. Rather, the parents must show that they occupy `a parental role in the childs life. [Citation.]" In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The parental relationship exception to termination of parental rights has been interpreted to mean that "the relationship 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575, italics added.) The evidence of a childs relationship with a parent is considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
2. Standard of Review
Appellate courts have utilized both the substantial evidence test and the abuse of discretion test in reviewing determinations made by trial courts on the applicability of the section 366.26, subdivision (c) (1) statutory exceptions to termination of parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) The Jasmine D. court observed that "[t]he practical differences between the two standards of review are not significant. `[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "`if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he [or she] did. . . ." [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a `compelling reason for determining that termination would be detrimental to the child. [Citation.] That is a quintessentially discretionary determination. The juvenile courts opportunity to observe the witnesses and generally get `the feel of the case warrants a high degree of appellate court deference. [Citation.]" (Ibid.)
3. Analysis of the Parents Claim of the Parental Relationship Exception
The instant case is a most interesting one for determining whether the trial court abused its discretion when it did not apply the parental relationship exception in Mothers favor. The facts are not ordinary.
Here, Mother had an ideal situation for a parent in dependency court. She was not addicted to drugs. She already had a mother-child relationship with Marissa when the dependency petition was filed. She had very substantial support from her family for herself, and the minors grandparents were willing to care for the minor. Mother also had an abundance of time to engage in her programs because she did not work, she was not attending school, and the minor child was in preschool. Moreover, the MGF insured that Mother would be in a situation where she could prove her dedication to Marissa because he permitted Mother and Marissa to live at his home. That enabled Mother to easily participate in caring for Marissa while the child was not at preschool, and Mother could use her substantial free time to begin and complete her case plan programs when the child was at school and when the MGF was at home to tend to Marissa. Yet, despite these very, very favorable circumstances, by the time the court had to decide whether to terminate her parental rights, Mother had not completed her entire case plan (indeed, it took her nearly two years to complete even a substantial part of it), and she had developed a pattern of coming to the MGFs home to care for Marissa only when it suited her.
While Mother was spending her time not completing her case plan and not demonstrating an interest in the daily care of Marissa, Marissas prior life with Mother was being replaced with her life in the MGFs home. On October 4, 2005, when she had just turned three years old, Marissa was removed from the only home she had ever known—the home of her MGM, where she was living with the MGM, Mother and Father. Almost immediately Marissa was placed in her MGFs home and she continued to live there through the November 15, 2007 section 366.26 hearing when the parents parental rights were terminated. Although initially Marissa lived at the MGFs home under Mothers custody, after a year that custody order was vacated (in November 2006), and custody was placed with the MGF, which occurred because of the parents not having complied with their case plans and the home of parent order for Mother not having been effective to protect Marissa. Although Mother could have remained living in the MGFs home with him and Marissa, she moved back to the MGMs house and began coming to the MGFs home to assist with Marissas care in the morning and evening. However, the time that Mother spent at the MGFs home visiting with the minor and assisting with the minors care was never a daily, or even near daily, event.
The MGF reported that Mother came to him home to assist him with caring for Marissa 12-14 times in December 2006 and January 2007, and the number of her visits to his home declined significantly over the course of the next three months to the point where Mother had only come to the MGFs home four or five times in March 2006. Although Mothers assistance with the minor at the MGFs home increased beginning in April 2007 when the court terminated family reunification services and set the section 366.26 hearing (and the prospect of losing parental rights was upon Mother), Mother still did not go to the MGFs home on a daily basis to care for Marissa even though daily care for the minor in Mothers custody was what Mother asserted that she wanted. The trial courts observation that Mother felt comfortable participating in Marissas life in that uncommitted fashion is born out by the evidence presented by the Department, and by the fact that after two years in the system Mother had not filed a section 388 petition to regain custody of Marissa.
Additionally, none of the Departments reports indicate that Marissa was suffering from not having consistent contact with Mother, including during those months when Mother only assisted the MGF with Marissa a few times a month. Marissa was always reported to be happy and doing well in all aspects of her life at the MGFs home and at preschool and then kindergarten, and she was reported to be attached to the MGF and happy to be living with him. She considered his home her home. None of the reports indicated Marissa was concerned that Mother had absented herself from the minors life to a great extent. While Mother absented herself from Marissas life more and more, Marissa continued to bond with the MGF and view her life in his home as the norm. Moreover, at the November 15, 2007 section 366.26 hearing, the MGF never refuted the assertions by the Department and the court that he would permit Mother to have a relationship with Marissa and participate in the minors care after her parental rights were terminated.
As for Father, he ceased being a consistent part of Marissas life when he was twice convicted of violating his parole and twice sentenced to prison.
It was under those circumstances that the trial court had to determine whether there was a compelling reason for determining that terminating the parents parental rights would be so detrimental to Marissa that the rights should not be terminated, that is, whether "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) And under the circumstances of this case, we cannot say the trial court abused its discretion when it (1) considered the good that would come to Marissa from having a permanent home with the MGF—the home she had come to know as her home, (2) factored in that (a) the MGF never indicated that the relationship between Mother and Marissa would end if Mothers parental rights were terminated and (b) the MGF always welcomed Mothers participation in the care of Marissa, and (3) came to the conclusion that the parental relationship exception does not apply here. Moreover, applying the alternative substantial evidence test, there is sufficient evidence that termination of Mothers parental rights would not deprive Marissa of her substantial emotional attachment to Mother. The record shows that raising Marissa is a family affair.
DISPOSITION
The order from which the parents have appealed is affirmed.
WE CONCUR:
KITCHING, J.
ALDRICH, J.