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In re M.M.

Court of Appeal of California
Apr 23, 2009
No. A122925 (Cal. Ct. App. Apr. 23, 2009)

Opinion

A122925

4-23-2009

In re M.M., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. M.M., Defendant and Appellant.

Not to be Published in Official Reports


Mother appeals from an order terminating her parental rights. She says that guardianship, not adoption, was the best plan for her daughter. She also challenges the order on the bases that the court ordered termination in the mistaken belief that Mother would have post-termination visitation rights and there was no substantial evidence that her child was adoptable. We disagree. The termination order was within the courts discretion, and not conditional upon, or entered because, mother would have post-termination visits. There was also substantial evidence to support the courts conclusion that the child was adoptable. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

When Mother was 18 years old, her daughter M.M. was born. M.M. was placed in protective custody in March 2007, when she was eight months old. Her placement was "due to [Mother] habitually leaving her child with other people without their permission, [Mothers] admitted drug use[,] and prior contacts and referrals regarding [Mother]." The petition alleged M.M. was properly subject to dependency pursuant to Welfare and Institutions Code section 300, subdivision (b), because Mothers "failure to address her substance abuse places the minor, [M.M.], at substantial risk of harm." It was alleged that Mother left M.M. at various times in a convenience store, outside a coffee shop, and in the car, while she socialized and used illegal drugs with her friends. Mother had also failed to contact various service providers following her assessment for substance abuse and referrals to substance abuse treatment, parenting classes, and mental health services. The court sustained the allegations, and ordered supervised visitation and the provision of reunification services to Mother. M.M. was placed in the home of Amanda W., who was a friend of M.M.s maternal grandfather.

All further statutory references are to the Welfare and Institutions Code.

The case was briefly transferred to Kern County at Mothers request, but returned to Solano County after Mother changed her mind. Mother was provided referrals for services in both counties.

Amanda W. had known M.M. all her life, and had "cared for [her] on the weekends prior to the placement." Amanda W. had also known Mother since Mother was in middle school with Amanda W.s son, and Mother reportedly "had talked to her about guardianship on a few occasions prior to [child protective services] involvement." She was described in reports as "a non-relative extended family member."

In January 2008, the court designated Amanda W. to be M.M.s de facto parent. Following a contested six-month review hearing, the court found Mother had failed to participate in court-ordered treatment and services, and that M.M. would be at substantial risk of detriment if she were returned to Mother. The court terminated reunification services, and set a hearing pursuant to section 366.26 to terminate Mothers parental rights.

Mother reported that either of two men could be M.M.s father. The court found that Raymond L. was not M.M.s biological father, and dismissed him from the dependency proceeding. The court also declined to find that Alvin C. was M.M.s presumed father.

In August 2008, Mother sought to modify the order terminating her reunification services and filed a petition under section 388 asking that they be restored. Mothers petition alleged: "The minor and mother have visited more consistently and the parental bond is growing. The minor is excited to see the mother and disappointed when the visits end. The mother has engaged in services which ameliorate the conditions which brought the minor before the court." Mothers petition was to be heard on the same day as the section 366.26 proceeding to terminate her parental rights.

The Solano County Health and Social Services Departments report prepared for the termination hearing stated M.M. was in good health, with no developmental delays. She was described to be "a happy, well-adjusted child. She is very outgoing; she has a sweet disposition and a great personality." By that time M.M. had lived with Amanda W. for approximately 13 months, and had a strong attachment to her. Mother had visited M.M. with varying frequency, and reportedly played with her daughter but did not change her diaper, feed her, or "show much patience." Mother admitted that she used the computer during her visits with M.M., but told the social worker M.M. "had been sitting on her lap." M.M. was attached to her maternal grandfather and he regularly visited with her. Her maternal aunt also had several visits during the previous year that went well. Alleged father Alvin C. had lived with Mother for two or three months when M.M. was born, but he had had no contact with M.M. since then, other than a single visit on Halloween of 2007.

Mothers drug use began when she was 11 years old. In February 2007, she used Ecstasy on a daily basis and also drank alcohol, though she was not yet 21 years old. In July 2007, Mother told a social worker that she wanted Amanda W. to be M.M.s guardian because Mother wanted "to party with her friends" and "was too young to have a baby." Mother was unemployed and living with her mother, who also had children removed from her by child protective services. In April 2008, after she argued with Amanda W., Mother said she wanted her sister to be M.M.s guardian, even though she previously did not want M.M. placed with her sister because she did not get along with her.

Mother claimed that she was drug free since May 2007, and had been in a drug treatment program in Tehachapi for 10 months. She also claimed to have "almost completed a parenting program at the college in Tehachapi." But she did not provide any evidence to verify her claim that she completed any substance abuse program or was drug free. Amanda W. reported Mother was still using marijuana, Ecstasy, and alcohol at the time the report was prepared for the termination hearing. Neither did Mothers sister believe that Mother had remained clean and sober.

Mother had asked Alvin C. to come to court and intervene in the dependency proceedings. When he spoke with the social worker, he admitted a history of substance abuse, and said he knew M.M. was living with Amanda W. He had not previously asserted any interest in the proceedings or established any relationship with M.M. He told Mother he wanted M.M. to stay with Amanda W., and she could not be with him because he did not have stable housing or a job.

While Amanda W. was caring for M.M., she "had been hoping that [Mother] will grow up, get clean and sober, and that perhaps she may be able to raise [M.M.] in the future." Mother had changed her mind repeatedly about living in Vallejo or in Tehachapai, and about whether she wanted Amanda W. or her sister to have custody of M.M. Amanda W. herself "vacillated about adoption versus guardianship. After a great deal of conflict, threats and drama with [Mother] and [Mothers sister], [Amanda W.] decided that an open adoption would be the best permanent plan for [M.M.]." Amanda W., the Department, and M.M.s attorney did not want M.M. "bounced around from home to home" and were "in agreement that [a]doption is a better permanent plan for the child instead of [g]uardianship."

The Department assessed M.M. to be "highly adoptable [because] . . . due to her young age, she has all of her developmental and medical needs met, she is able to bond/attach to parental figures, and she has a caretaker that is willing to adopt her, if she is legally freed for adoption." There were "many families that would be willing to adopt [M.M.], if for an unforeseen reason, the placement did not work out." While Mothers sister had also expressed an interest in adopting M.M., the social worker did not recommend moving her because M.M. was attached to Amanda W. and not to her aunt. The report also said: "The Defacto Parent, Amanda W[.], has provided a loving and stable home for the child and she is committed to the Permanent Plan of Adoption." M.M. was "flourishing in her placement with [Amanda W.]." She was "happy, healthy, loved and she deserve[d] stability." The Department recommended that parental rights be terminated and adoption as the permanent plan.

The Department also recommended continued supervised visitation with Mother and "an open adoption." Mother and Amanda W. were "friends and they appear[ed] to have a good working relationship, which [was] very beneficial to [M.M.]." Mother "[had] stated that she knows that [Amanda W.] will not prevent her from visiting her daughter." The Department had already made a referral for mediation to complete a post-adoption contact agreement for Mother, the maternal grandfather, the maternal aunt, and Amanda W. The mediator later reported he had completed post-adoption contact agreements for the maternal grandfather and the maternal aunt, but was not able to complete an agreement with Mother. Amanda W. explained that Mother never returned the mediators phone calls. Mother could still participate in the mediation process if she decided to cooperate.

An addendum report prepared by the Department when the termination hearing was continued to September 2008 stated that Mother recently tested positive for cocaine metabolite and marijuana. Photos then obtained from Mothers MySpace web page depicted her "smoking marijuana with her friends, drinking alcohol, and rolling a joint." Amanda W. reported that Mother had recently cancelled a visit with M.M. when Mother rejected the visitation times Amanda W. suggested. On a recent unannounced visit by the social worker to the maternal grandfathers home, Mother was sleeping while the grandfather was watching M.M. During the two and a half hours the social worker was in the grandfathers home, Mother rarely interacted with her daughter. Instead, she complained to the social worker about Amanda W., and argued with her sister over the phone. Mother "did not interact with [M.M.] other than talking to her[,] . . . sat on the couch and talked about the court case and her problems[,], [and] had a friend come over during the visit." The social worker observed a strong attachment between M.M. and her grandfather. She sought his attention and physical affection. But M.M. displayed no strong attachment to Mother, who "talked to her daughter but . . . did not demonstrate good parenting skills."

In response to Mothers petition to restore services, the Department denied that Mother had visited M.M. more consistently or had a significant bond with her. Mother had not provided verification that she had completed a drug treatment program, and continued "to be in denial about her drug problem." Mother failed to participate in court ordered services, was unemployed, and was not attending school. Mother was then living with her mother, who was reportedly an alcoholic who left the home "for days at a time when she works as a carnival worker, and she leaves [Mother] in charge of her younger brothers. There is partying, drinking, and drug use in the home, and there is a lack of appropriate adult supervision in the home."

At the combined hearing in September 2008, Mother presented no witnesses or evidence in support of her section 388 petition to restore services, and the petition was denied. The parties then presented brief arguments and submitted the issue of termination of parental rights to the court. The court found by clear and convincing evidence that it was likely M.M. would be adopted, and terminated Mothers parental rights. M.M.s permanent plan was placement with Amanda W., with a specific goal of adoption. The courts order also stated "supervised visitation may be arranged between the caretaker, Amanda [W.] and [Mother], as approved by the Department." Visitation was also permitted as arranged between Amanda W. and the maternal grandfather and maternal aunt, who signed a post-adoption contact agreement. The court further noted: "The visitation and contact will occur pursuant to the post adoption contact agreement which sets out that visitation will be as they arrange. [Mother] has been referred to the Bay Area Consortium for Children for mediation for a post adoption contact agreement. [Mother] has not completed her mediation yet. [Mother] may have visitation contact at Amanda W[.]s discretion, as approved by the Department. Upon completion, [Mothers] visitation/contact with the child shall be allowed pursuant to the post adoption contact agreement." Mother timely appealed.

DISCUSSION

A. Guardianship

When parental reunification efforts are unsuccessful, termination of parental rights and adoption is the Legislatures expressed preference for children who are adjudged dependents of the juvenile court. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1107.) "Section 366.26, subdivision (c)(1)[], provides that if the juvenile court determines, by a clear and convincing standard, that it is likely a minor will be adopted, then it shall terminate parental rights and order the child placed for adoption unless the court finds a compelling reason for determining that termination would be detrimental to the child." (In re Angel B. (2002) 97 Cal.App.4th 454, 466; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.) It is the parents burden to show such a compelling reason. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the childs needs, it is only in an extraordinary case that preservation of the parents rights will prevail over the Legislatures preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We review the choice made by the juvenile court for an abuse of discretion. (Id. at p. 1351.)

Mother argues this case should never have resulted in termination of her parental rights because, with the exception of M.M.s counsel, all the parties involved in the proceedings preferred guardianship as the permanent plan. Not only is the record of the parties preferences more equivocal than Mother states, the preference of the parties is not the controlling criteria that is to guide the juvenile courts determination. Here, it was Mothers burden to demonstrate that termination would be detrimental to M.M. and guardianship would be the better plan than adoption.

Mother supports her argument that guardianship was the "most appropriate plan" for M.M. by saying that M.M.s caregiver "expressed her support for a guardianship during the dependency," the Department recommended guardianship in its initial report for the section 366.26 hearing, and that it was M.M.s counsel who first urged a permanent plan of adoption instead of guardianship. But Amanda W.s willingness to take guardianship of M.M. does not overcome the statutory preference for adoption. Mother does not argue that M.M. comes within any of the statutory exceptions to termination listed in section 366.26, subdivision (c), nor does the record support such an argument.

The juvenile courts passing comment that the matter could have been resolved in a probate guardianship is similarly tangential to the legal issues presented by this appeal. Nor has the Department conceded that the caregiver "was pressured into adopting," as argued in Mothers reply brief.

"The Legislature has . . . determined that, where possible, adoption is the first choice. `Adoption is the Legislatures first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker. [Citation.] `Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child." (In re Celine R., supra, 31 Cal.4th at p. 53.)

On this record we cannot say that Mother has met her burden of showing a compelling reason why guardianship was the preferred alternative in M.M.s best interest. The juvenile court did not abuse its discretion when it terminated parental rights and selected adoption as the permanent plan.

B. Post-Adoption Contact

Mother also argues that the termination order must be reversed because the juvenile court entered an unenforceable visitation order as part of the termination proceedings. She says that because the California dependency statutes do not allow for "open adoption," the juvenile courts attempts to allow for visitation were achievable only through a guardianship, not an adoption. Thus, she argues, the order for termination must be reversed. But the record of the termination hearing does not support Mothers characterization of the courts order.

During the hearing, the juvenile court told Mother, "the law leads me in inexorably to terminating parental rights and free[ing] [M.M.] up for adoption." The court went on to say that it was "very, very happy that adoption is apparently going to be with someone who has provided for you in the past, who cares about you, and that you not be one of those people who probably loses all contact with a biological child. And although this is not part of my decision now, I dont know where the post-adoption process might be or where it might lead to. But based on all of the information I have right now, I do need to terminate parental rights and free the minor up for adoption." The courts order went on to specify that it was up to Amanda W. to allow Mother visits as she saw fit until there was a post-adoption contact agreement and then Mother could visit as agreed upon.

The possible unenforceability of the visitation provisions in the juvenile courts termination order provides no basis to overturn the otherwise proper termination of Mothers parental rights. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420; see also In re Sylvia R. (1997) 55 Cal.App.4th 559, 563 [a parent whose rights have been terminated is not entitled to post-adoption visitation with her children] .) "[P]arental rights must [nevertheless] be terminated to free children to be adopted into a new, permanent family." (In re Beatrice M., supra, at p. 1420.) Mother cites no authority that holds a termination order is void simply because it contains provisions regarding post-termination visits. Moreover, it is clear from the record that the juvenile court did not improperly condition the termination of Mothers rights on her ability to have continuing contact with M.M. (Cf. In re S.B. (2008) 164 Cal.App.4th 289, 300-301 [juvenile court erred when it based its decision to terminate parental rights in part on the prospective adoptive parents willingness to allow father continued visitation].) The visitation provisions in the termination order do not compel reversal.

C. Adoptability

Finally, Mother argues the court erred when it terminated her parental rights, because there was no substantial evidence to support the finding that M.M. was adoptable. We disagree.

"We review the juvenile courts order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted, which was the basis for the courts termination of [the parents] parental rights." (In re Brian P. (2002) 99 Cal.App.4th 616, 623-624.) "We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) The record here contains ample evidence to support the trial courts finding of adoptability. M.M.s age, good health, well-adjusted personality, and ability to bond with parental figures "are all attributes indicating adoptability." (See ibid.; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651.) While the Department also noted Amanda W. was willing to adopt M.M., the childs own positive attributes fully support the Departments determination that M.M. was "highly adoptable" because there were "many families that would be willing to adopt [M.M.], if for an unforeseen reason, the placement [with Amanda W.] did not work out." (See In re Sarah M., supra, at p. 1651 [foster mothers willingness to adopt supported determination minors were likely to be adopted within a reasonable time, but her availability as a prospective adoptive parent was not essential to that conclusion].)

This is not a case where the child was "not otherwise adoptable if placement with the [prospective adoptive parent] were to fall through." (Cf. In re Thomas R. (2006) 145 Cal.App.4th 726, 734; In re Asia L. (2003) 107 Cal.App.4th 498, 510-512; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063.) Thus, specific questions about M.M.s prospective adoptive placement were not relevant to the determination of adoptability. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1651 ["where evidence of a minors adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parents suitability to adopt is irrelevant to the issue whether the minor is likely to be adopted"].) Moreover, the record does not support Mothers assertion that Amanda W. "did not want to adopt [M.M.]." While Amanda W. was supportive of Mothers attempts to grow up and stop using drugs with the hope that she might someday be able to care for M.M., and had previously said she did not want Mother to lose her parental rights, the updated section 366.26 report stated Amanda W. was committed to the permanent plan of adoption (rather than guardianship), and understood the responsibilities of her decision. Substantial evidence supports the juvenile courts finding of adoptability.

Moreover, as early as the November 2007 status review report, Amanda W. was said to be "willing to adopt should reunification with the mother not occur."

DISPOSITION

The orders of the juvenile court are affirmed.

We concur:

McGuiness, P.J.

Pollak, J.


Summaries of

In re M.M.

Court of Appeal of California
Apr 23, 2009
No. A122925 (Cal. Ct. App. Apr. 23, 2009)
Case details for

In re M.M.

Case Details

Full title:In re M.M., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY…

Court:Court of Appeal of California

Date published: Apr 23, 2009

Citations

No. A122925 (Cal. Ct. App. Apr. 23, 2009)