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In re M.H.

California Court of Appeals, First District, Fifth Division
Feb 7, 2011
No. A128511 (Cal. Ct. App. Feb. 7, 2011)

Opinion


In re M.H., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. TAMMY H., Defendant and Appellant. A128511 California Court of Appeal, First District, Fifth Division February 7, 2011

NOT TO BE PUBLISHED

Contra Costa County Super. Ct. No. J08-01620.

SIMONS, J.

Tammy H. (Mother) appeals an order terminating her parental rights over her son M.H. (Minor), born in November 2005. (Welf. & Inst. Code, § 366.26.) Mother contends the juvenile court’s finding that Minor was adoptable is not supported by substantial evidence, and the court erred in failing to apply the continuing beneficial relationship exception to parental termination (§ 366.26, subd. (c)(1)(B)(i)). We reject these contentions and affirm.

All undesignated section references are to the Welfare and Institutions Code.

BACKGROUND

In October 2008, Minor was declared a dependent of the juvenile court. After initially being returned to Mother, Minor was placed in foster care with 12 months of reunification services to Mother. As of December 2009, Mother had not participated in required domestic violence/anger management classes, general counseling, parenting education, and drug testing, and had not completed a residential or outpatient drug treatment program.

The court sustained the dependency petition pursuant to section 300, subdivision (b) (failure to protect) based on an allegation that on September 27, 2008, Mother left Minor in the care of a male friend and was seven hours late in retrieving Minor.

Reunification services were terminated in January 2010. At the hearing, Mother testified she did not want to remove Minor from his foster family, needed a family to adopt him and “would love [to have] a family adopt us into their life.” A section 366.26 permanency planning hearing (.26 hearing) was set for April 26, 2010.

.26 Report

The “366.26 WIC Report” by Contra Costa County Children & Family Services Bureau (Bureau) social worker Monica Cummings recommended termination of Mother’s parental rights and adoption as the permanent plan. The report stated the following: Minor’s speech was developmentally delayed but he had no mental or emotional problems warranting intervention. He was happy, well-adjusted and thriving in his foster home. Following termination of reunification, Mother was granted one hour of visitation per month. She had been consistent in maintaining visits with Minor, but no visit occurred in February 2010. She contacted the Brueau social worker in early March to arrange visitation and interacted appropriately with Minor during visits. “Although [Minor] is able to identify his mother there is not a parent-child relationship that would outweigh the benefits of legal permanence for this child through adoption.” Under a heading of “Analysis of the Likelihood of Adoption and Proposed Permanent Plan, ” the report stated: “[Minor] is a four-year-old African American child who is petite in terms of size. He is a friendly child who presents quiet and reserved at times. He is a healthy child with no known medical conditions. He does have some developmental delays in the area of speech. He does not present with any behavioral problems. He is a lovable child that needs a home that could provide him with the love, nurturance and guidance he needs to continue to thrive. He is an adoptable child in general. Given his age, the Bureau would have no problems with identifying a home for him.” The report also noted the search for a prospective adoptive parent had been delayed to determine if Minor had any delays, no prospective adoptive parent had yet been identified, and the Bureau was conducting an extensive search to find a family to meet his needs. It recommended that any future visitation with Mother be at the discretion of the adopting parents.

The record does not reveal why no visit occurred in February 2010.

.26 Hearing

Mother did not appear at the.26 hearing. Cummings testified that Minor, then four years old, had been in his current/fourth foster placement since July 16, 2009, but the foster family was not planning to adopt him. Cummings said he was removed from his first foster placement because he reunified with Mother. On May 26, 2009, he was moved to his third foster placement, and on July 7, the third foster parents gave a “seven-day notice.” Cummings said the second and third foster families requested Minor’s removal, but she did not know why.

That reunification lasted two months.

Cummings also testified that, in August 2009, Minor was diagnosed with mixed receptive expressive language disorder and developmental coordination disorder, and it was recommended he be evaluated to determine his learning disabilities and have occupational therapy for his coordination disorder. He attends a therapeutic playschool where he is doing very well. She conceded that an August 2009 Bureau report noted that the second foster family reported that Minor had episodes of “spacing out, ” did not eat, was not toilet trained and had some behavioral problems. Cummings conceded that the August 2009 Bureau report noted that a February 2009 medical assessment indicated that Minor might be suffering from “PTSD.” However, Cummings did not know whether there had been any follow-up for that. Cummings stated that the Bureau had been looking for a permanent home for Minor for the past two months, was assessing home studies, and hoped to soon find a suitable match for Minor. She testified that Mother is homeless. She also said that Minor is bonded to Mother, meaning he knows who she is, goes up to her, and “they have a loving relationship.”

Cummings testified that after a March 2010 visit, Minor did not cry or cling to Mother after they said goodbye. The foster mother said that sometimes he asks about Mother. Cummings said Mother does not have a parental relationship with Minor since he has been out of her care for more than a year, does not look to her for daily care or comfort, and Mother plays more of a “visitor” role than a parental role in his life. Cummings testified that Minor’s current caretakers said he had made substantial progress, including being more social, speaking more, being toilet trained, and having no behavioral problems. She opined that he was adoptable because, other than his speech delays, he had no severe medical issues, was engaging and loveable, had no known behavioral problems, and there were no major concerns or delays that would prevent a family from adopting him. Cummings said that within a reasonable amount of time she had been able to successfully place children with medical and developmental conditions similar to those of Minor.

At the conclusion of the hearing the court found Minor adoptable by clear and convincing evidence and terminated Mother’s parental rights.

The court also terminated the parental rights of alleged fathers David W. and Terrell B. They are not parties to this appeal.

DISCUSSION

I. The Finding of Adoptability

Mother contends the court’s finding that Minor was adoptable is not supported by substantial evidence. She argues the Department did not address: why Minor had been in four different foster placements, his possible behavioral or medical issues, and whether any adoptive homes had been found for him. She asserts that, with only “vague and speculative” evidence of adoptability, the court’s adoptability finding was “premature at best.”

The juvenile court may terminate parental rights only after determining by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) In determining adoptability, the focus is on whether a child’s age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 378.)

We review a finding of adoptability for substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061.) In doing so we review the record in the light most favorable to the court’s findings and draw all evidentiary inferences that support the court’s determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

Mother asserts that the fact Minor was in four different foster placements is relevant to whether he is generally adoptable. Cummings testified Minor was removed from his first foster placement when he briefly reunified with Mother. Minor resided in the second foster placement for approximately six months. Although his second foster family noted that he had episodes of “spacing out, ” was not toilet trained, did not eat, and had some behavioral problems, there was no evidence that he was removed from that placement due to any behavioral problems. Minor resided in the third foster placement for approximately two months. No evidence was presented as to why he was transferred to the fourth foster placement. At the time of the.26 hearing, Minor had resided in his fourth foster placement for 10 months. Although those foster parents were not planning to adopt him, they reported that Minor had made substantial progress. He was more social, was speaking more, was toilet trained, had no behavior problems, and appeared to get along with others. Based on the record before us, it would be speculative to conclude that Minor was not adoptable based on his having been in four foster placements.

Mother also argues that the Bureau failed to address whether Minor was receiving follow-up therapy for PTSD and whether his developmental issues were being adequately addressed and would affect a potential adoptive placement.

Minor was never diagnosed with PTSD, so Mother’s concern about follow-up for that diagnosis is misplaced. An August 2009 developmental assessment report by Dr. Patrick Maher diagnosed Minor as having a “Mixed Receptive-Expressive Language Disorder” and “Developmental Coordination Disorder.” The assessment ruled out Minor’s suffering from autism, recommended a psycho-educational evaluation to rule out any learning disabilities, and occupational therapy for his developmental coordination disorder. A July 2009 occupational therapy evaluation noted that Minor had difficulties with postural stability and control and “with motor planning for timing, sequencing and body organization, ” and recommended that Minor participate in sensory integration activities. A speech and language assessment indicated that Minor’s expressive language skills were age appropriate and his receptive language skills were mildly delayed. Based on his test results he was not eligible for special education services. Cummings discussed all of the testing results with Dr. Maher and it was agreed that Minor would continue participating in the therapeutic preschool program and would be retested prior to entering kindergarten. Dr. Maher opined it was not uncommon for children to test poorly and then progress when placed in a positive, nurturing environment. This evidence established that Minor’s developmental issues had been adequately addressed and did not appear to affect a potential adoptive placement.

Finally, Mother argues Minor was not adoptable since he was not in a preadoptive placement and no adoptive families had been identified. However, to be considered adoptable, “a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent ‘ “waiting in the wings.” ’ [Citation.]” (In re R.C. (2008) 169 Cal.App.4th 486, 491.) As we noted previously, the focus is on whether a child’s age, physical condition and emotional state will create difficulty in locating a family willing to adopt. Substantial evidence supports the court’s finding that based on his age, physical condition and emotional state, Minor is generally adoptable. He was thriving in his foster placement and at school and presented with no mental or emotional problems that warranted intervention. There was no evidence that his language and coordination disorders would make him difficult to adopt. Moreover, “The possibility [Minor] may have future problems does not preclude a finding he is likely to be adopted. [Citations.]” (Id. at p. 492.)

Substantial evidence supports the court’s adoptability finding.

II. The Continuing Beneficial Relationship Exception

Mother contends the juvenile court erred in failing to conclude that the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(B)(i)) applies to prevent termination of her parental rights over Minor.

Section 366.26, subdivision (c)(1), provides that if the juvenile court finds the child adoptable, “the court shall terminate parental rights” and order the child placed for adoption unless: “ (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

At a.26 hearing, where possible, adoption is the permanent plan preferred by the Legislature. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the minor under one of six enumerated exceptions. (§ 366.26, subd. (c)(1)(B); see In re L. Y. L., at p. 947.) It is the parent’s burden to establish the existence of one of the exceptions to termination. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)

In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the beneficial relationship exception to mean “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 the 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 parent’s rights are not terminated.” (Id. at p. 575.) The child’s age, the portion of the child’s life spent in the parent’s custody, the effect of the interaction between the parent and child, and the child’s particular needs, are factors which may be considered by the court in considering the applicability of the beneficial relationship exception. (Id. at pp. 575-576.)

Although the beneficial relationship exception does not require proof that the minor has a “ ‘primary attachment’ ” to the noncustodial parent or “that the noncustodial parent has maintained day-to-day contact” with the minor (In re S.B. (2008) 164 Cal.App.4th 289, 300), “the relationship must be such that the child would suffer detriment from its termination” (In re Angel B. (2002) 97 Cal.App.4th 454, 467). The parent must show more than “ ‘frequent and loving contact’ [citation], and be more to the child than a mere ‘friendly visitor or friendly nonparent relative.’ [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)

A trial court’s determination regarding the beneficial relationship exception is affirmed if supported by substantial evidence. (In re S.B, supra, 164 Cal.App.4th at p. 297; In re B.D. (2008) 159 Cal.App.4th 1218, 1235.) We review the evidence most favorably to the prevailing party and indulge in all legitimate and reasonable inferences to uphold the court’s ruling. (In re S.B., at p. 297.)

The major issue here is the second prong of the continuing beneficial relationship exception-whether Minor would benefit from continuing his parental relationship with Mother. We conclude that substantial evidence supports the court’s finding that Mother failed to establish a parent-child relationship sufficient to qualify for section 366.26, subdivision (c)(1)(B)(i), as interpreted by In re Autumn H., supra, 27 Cal.App.4th 567, and its progeny. First, Minor, now five years old, has resided outside of Mother’s custody since he was three years old. Second, although Minor knows who Mother is and they have a loving relationship, he does not look to her for daily care or comfort. She visits him one hour per month and plays more of a “visitor” role than a parental role in his life. Third, at the time of the.26 report, Mother was homeless and at the time reunification services were terminated she had not fulfilled her case plan requirements.

DISPOSITION

The order is affirmed.

We concur. JONES, P.J., NEEDHAM, J.


Summaries of

In re M.H.

California Court of Appeals, First District, Fifth Division
Feb 7, 2011
No. A128511 (Cal. Ct. App. Feb. 7, 2011)
Case details for

In re M.H.

Case Details

Full title:In re M.H., a Person Coming Under the Juvenile Court Law. CONTRA COSTA…

Court:California Court of Appeals, First District, Fifth Division

Date published: Feb 7, 2011

Citations

No. A128511 (Cal. Ct. App. Feb. 7, 2011)