Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County Nos. 509228, 509229, Nancy B. Williamsen, Commissioner.
Mary R. Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Kane, J.
A.G. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her two sons, M. and E. She contends the superior court erred when it rejected her claim that termination would be detrimental to the children based on their parent-child relationship. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant also argued if this court reversed the termination orders as to the father and his appeal, we should reverse them as well for her benefit. We have simultaneously reviewed the father’s appeal, In re M.R, et al. F056099, and have affirmed.
PROCEDURAL AND FACTUAL HISTORY
M. and E. were victims of their parents’ domestic violence. For instance, when appellant was pregnant with E., she held a knife to M.’s throat and asked the children’s father how he would like it if she hurt M. M. was less than a year old at the time. Appellant claimed she had no intention of hurting M. but wanted to make a point with the father. Later during appellant’s pregnancy, the father got into an argument with appellant while he drove a car and threatened to crash the car and kill the whole family. Over time, separations, restraining orders, and reconciliations became a routine aspect of appellant’s relationship with the father.
In June 2005, E. was born with spina bifida and hydrocephalus. As a result, he has no feeling below the waist and requires constant care. Respondent Stanislaus County Community Services Agency (agency) initiated these dependency proceedings after infant E. sustained a series of unexplained injuries. Those injuries included fractured ribs in December 2005, a bite mark on E’s right forearm, bleeding toes, and fingerprint-shaped bruises on both sides of his mouth a few months later, and a new fractured rib in May 2006.
Reunification Phase
As of the summer of 2006, the Stanislaus County Superior Court exercised its dependency jurisdiction, formally removed the children from parental custody, and ordered reunification services for both parents. Over the next 18 months, the agency provided a range of services which both parents largely completed. However, neither of them could provide an explanation for E.’s injuries despite the opportunity to do so; this was considered critical to either parent regaining custody. Appellant also exhibited traits of various personality disorders which had implications for her ability to parent. In particular, there was appellant’s lack of concern about E.’s injuries and her denial that she or the father caused them. She minimized the severity of E.’s injuries and focused more on her needs and less on the children’s needs. Without overt concern about her child’s past hurts, a psychologist opined it was unclear whether appellant would be able to act on her child’s behalf.
Meanwhile, the parents’ violent relationship continued throughout the remainder of these proceedings even though they divorced in January 2007. Also, the children were still exposed to the parents’ violence. During a May 2007 visit, the father apparently slapped appellant’s face in front of the children. During a September 2007 visit, the father was arrested on charges of kidnapping and falsely imprisoning appellant. The children witnessed a police officer interview appellant while the father sat in a police car following his arrest.
Visitation
The court initially ordered supervised, weekly visits between the children and their parents. The parents regularly visited, during which they played age appropriate games. The children appeared to enjoy their visits.
According to a September 2006 report, M., the older of the two children, cried when visits ended and would “also sometimes tantrum.” By the end of 2006, he was receiving mental health services to deal with behavior concerns, including the “tantruming and dealing with the aftermath of visits.” Around the same time, appellant was counseled about her statements to the children to the effect she was their only mother and they were coming home soon. Both parents also attended most of the children’s medical appointments as well.
In December 2006, the court changed the weekly visits from supervised to monitored. Monitored visits meant a social worker only quickly passed by the room where the visits occurred and rarely stayed for longer than five minutes. According to the next status review report, the parents visited the children together and visits were appropriate until the May 2007 incident, as mentioned above.
The following status review report for late 2007 disclosed the parents were separately visiting the children on a weekly basis. The parents brought snacks and sometimes toys for the children and were loving and playful with them. For the most part, the children were happy to see the parents and showed no distress after visits. However, the week after the children witnessed a police officer interview M. did not want to visit with appellant or even look at her. By the end of the visit, he was again interacting with appellant.
An April 2008 status review report revealed appellant continued to visit regularly each week with the children. By this time, the court had terminated services for the father and restricted his visits to once a month. As in the past, the report stated both parents brought snacks and sometimes toys and were loving and playful with the children. The children and the parents were happy to see each other. However, appellant often wept at the end of the visits. For the most part, appellant also attended doctor appointments and therapy sessions for the children. Although the children continued to show no distress after visits, each was more aggressive than normal with other children, especially after visits with the parents. M. continued to receive counseling services.
The Need for Permanency Planning
In May 2008, the superior court ruled the children would be at a substantial risk of harm if returned to either parent’s custody. The court in turn terminated reunification services for each parent and set a section 366.26 hearing to select and implement a permanent plan for each child. It also reduced appellant’s visits to once a month and denied her attorney’s request for a bonding study.
Appellant challenged the superior court’s decision to continue the children’s out-of-home placement and terminate reunification services by way of writ petition to this court. She did not challenge either the court’s order reducing her visits or its denial of her bonding study request.
In our opinion upholding the superior court’s ruling, we observed appellant minimized the severity of E.’s injuries and lied about the nature of her contacts with the father. Also, despite knowing the father’s violent nature and claiming her own fear of him, appellant was not certain she needed to protect the children from him. Further, her history of maintaining a relationship with the father portended the children’s exposure to future abuse. (A[.]G. v. Superior Court, F055324, slip op. p. 7.)
In advance of the permanency planning hearing, the agency submitted a “366.26 WIC Report” in which it recommended the court find the children adoptable and terminate parental rights. The report which included an assessment of each child’s physical condition and emotional state revealed, in relevant part, that the older child continued to receive counseling services. He also continued to be aggressive with his peers, especially after visits with the parents. The foster mother reported he did not want his caregivers out of his sight for days after visits with the parents. The parents were separately visiting the children once a month. The report contained the identical description of their earlier visits, namely: both parents brought snacks and sometimes toys for the children and were loving and playful with them; and the children and parents were happy to visit each other and the children showed no distress after visits.
According to an adoption specialist, the children were likely to be adopted in that they had been with the same foster caregivers for two years and were extremely bonded to them. The caregivers, both of whom were school teachers, excelled at meeting the children’s educational and medical needs, especially those of the younger child. The couple had expressed their interest in adopting the children since the very beginning.
The foster caregivers also had an approved adoption home study. Further, the children indicated to the adoption specialist that they were happy and, having expressed some understanding of adoption, wanted to be adopted.
Permanency Planning Hearing
At the start of the permanency planning hearing, attorneys for the agency and the children had no evidence to introduce besides that contained in the 366.26 WIC Report. Appellant took the stand in opposition to the agency’s recommendation and also called the social worker who first supervised and later monitored her visits with children.
Appellant testified the children knew her as their mommy and loved her. Appellant, who was Spanish-speaking and required the aid of an interpreter, mentioned her children did not speak Spanish. Nonetheless, they talked and played with her. She knew that love was greater than language and that the children felt happy when they saw her. She believed they needed her and would be affected if she could no longer see them. They would remember who she was.
The social worker acknowledged she could see a bond between appellant and the children and that the children would be affected the same as any children who lose their parents would be. However, she did not think the children would suffer long-term detriment if appellant had no further contact with them. She had observed the children were also bonded to their foster parents.
Appellant’s attorney questioned the social worker generally about when a child starts to bond with a parent. According to the social worker, who was admittedly not an expert, the first year was the most essential and the first five years were very important. If a child had substantial bonding issues, such issues could possibly affect the child for life. It was also very helpful to children when they had positive models, i.e. other adults who take on the role of caregiver.
On cross-examination, the agency’s attorney asked the social worker if she could describe the children’s relationship with the foster parents. Counsel for both parents objected on relevance grounds. The agency’s attorney argued it was relevant given the inquiry by appellant’s counsel regarding bonding and the effect severing parental rights could have on a child. The court overruled the objection and announced it would consider the evidence regarding whether or not the benefit of a continued relationship with the parent outweighs the benefit that the children might receive from the permanency of adoption.
The social worker in turn testified based on what she observed when she went to the foster parents’ home. The children were very comfortable playing and the foster mom was very attentive. The social worker had seen this as well at visits. The children were fine going to visit the parents and fine returning to the foster mom. The social worker had not seen any less of a bond with the foster mom than with the parents. In her opinion, the children had formed a healthy bond with their foster parents.
In questioning by the children’s attorney, the social worker testified that since the time the court reduced visits between appellant and the children to once a month, the children did not exhibit any distress, grief or change in behavior. In general, though, the children and the older one in particular, had a hard time both before and after visits.
During closing arguments, appellant’s counsel urged the court to find it would be detrimental to terminate parental rights based on her client’s relationship with the children and the social worker’s testimony regarding early bonding when the children were in appellant’s care. The father’s attorney made a similar claim.
Upon submission, the court found each child was likely to be adopted and terminated parental rights. In the process, the court addressed the parents’ requested detriment finding.
“I have no doubt of the love that exists, but in order to avoid terminating parental rights there must be a showing that the benefit of continuing that relationship that is so substantial and positive that it outweighs the benefit the permanency and stability for these children. That is a very difficult threshold to meet.
“The Court finds that that threshold was not met here and that there has not been enough showing that there would be any detriment at all to these children if parental rights were to be terminated.
“So the court finds that termination of parental rights would not be detrimental to these children.”
DISCUSSION
Appellant contends the court erred by rejecting her argument that termination would be detrimental to the children. In her view, the court’s decision was not supported by substantial evidence and the court erroneously focused on the social worker’s testimony about the children’s bond with their foster caregivers and determined that bond would mitigate the detriment the children would experience. We disagree, as discussed below.
Once the court terminated reunification services, the law required the court to shift its focus to the children’s needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Furthermore, because the children were likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically-designated circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
In this case, appellant claimed she maintained regular visitation with the children who would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) She consequently bore the evidentiary burden of establishing termination would be detrimental. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) This is a critical point appellant appears to overlook. For instance, she criticizes the agency for the lack of detail in its reports regarding her visits with the children. We see no need for such criticism, however, given that it was her evidentiary burden, not the agency’s, to establish the beneficial aspects of the visits. In addition, due to the court’s order for monitored visits starting in 2007, the agency’s social worker did not supervise the majority of visits over the course of the children’s dependency.
As the trial court ruled, she failed to carry her burden and show that there would be any detriment at all, other than what any child might experience from losing a parent. Although it was undisputed appellant maintained regular visitation with the children, she failed to produce any evidence, let alone compelling evidence, that the children would benefit from a continued relationship such that it would be detrimental to terminate the parental rights. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Since contact between parent and child generally confers some benefit on a child, the parent must demonstrate more than pleasant visits or frequent and loving contact to show detriment. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
On appeal, she also relies on early evidence in the record about the older child’s emotional response when visits ended and his positive interaction with both parents during his fall 2006 evaluation for early start services. While we have noted this evidence in our review of the record, we cannot ignore the fact that permanency planning occurred roughly two years later by which point the child showed no distress after visits but was aggressive with his peers. We do not pick and choose evidence from the record in conducting our review. (In re A.A. (2008)167 Cal.App.4th 1292, 1313.)
Nonetheless, appellant claims the court erred because there was insufficient evidence to support its finding that termination would not be detrimental to the children. Although the court here found termination would not be detrimental, its finding was not a prerequisite to the termination of parental rights. (In re A.A., supra, 167 Cal.App.4th at p. 1321.) Instead, the law required the court to terminate appellant’s parental rights, unless she provided a compelling reason for the court to find that termination of parental rights would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.) The Legislature demands an express finding on the issue of detriment only when the trial court determines detriment exists and relies upon it to refuse to enter an otherwise proper termination order. (§ 366.26, subd. (c)(1)(B); In re A.A., supra, 167 Cal.App.4th at p. 1321.)
Otherwise, when a parent, such as appellant, fails to carry her burden and persuade the court to find she has made a compelling case of detriment, we review the court’s decision for abuse of discretion, not for substantial evidence of a negative finding as she urges. (In re A.A., supra, 167 Cal.App.4th at p. 1321, citing In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Having completed that review as summarized above, we conclude the court did not abuse its discretion in rejecting appellant’s detriment claim.
Not only did appellant fail to produce evidence that the children would be greatly harmed by termination, the record reveals affirmative evidence that visits were having a harmful affect on the children in terms of the aggressive behaviors they displayed toward other children coincidental to the visits and the lack of any negative change in their behavior once visits were reduced to once a month.
In addition, the court did not have to ignore the fact that appellant’s children were very young. Without termination, the children faced the prospect of tenuous placements for the bulk of their childhoods which would run counter to their protected interests in permanence and stability.
Last, appellant contends the court erred by erroneously focusing on the social worker’s testimony about the children’s bond with their foster caregivers and determining that bond would alleviate or mitigate the detriment the children would experience. She relies on the recent decision in In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). This contention fails for at least two reasons.
One, to reiterate our previous observation, appellant failed to show her children would suffer any detriment, much less that they would be greatly harmed by termination of appellant’s rights. At most, there was evidence that her children shared a bond with her, had pleasant visits, and would be affected like any children who lose their parents. Given the lack of a detriment showing, the court never had to balance whether the parent/child relationship would promote the children’s well-being to such a degree that it outweighs the well-being the children would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Thus, appellant’s claim that the trial court determined the children’s bond with their foster parents would mitigate the detriment the children would experience is groundless.
Two, appellant’s reliance on S.B. is misplaced. As summarized below, neither the issue nor the facts in S.B. bear any significant comparison to the case before us.
The juvenile court in S.B., found a six-year-old child had an emotionally significant relationship with her father, but declined to find an exception to adoption because the relationship was not “parental.” (S.B., supra, 164 Cal.App.4th at p. 296, 298.) Rather, the child looked to her grandparents for her daily needs and nurturing. (Id. at pp. 296-297.)
In reversing the juvenile court’s decision, the appellate court held application of the benefit exception did not depend on the child’s primary attachment. (S.B., supra, 164 Cal.App.4th at pp. 298-300.) Also, the appellate court concluded the only reasonable inference that could be drawn from the evidence was the child would be greatly harmed by the loss of her significant, positive relationship with the father. (Id. at pp. 300-301.)
According to that evidence, the father had been the child’s primary caregiver for three years before her detention due to the parents’ drug abuse. (S.B., supra, 164 Cal.App.4th at p. 298 .) Thereafter, the father complied with every aspect of his case plan, including maintaining his sobriety and consistently visiting the child three times a week. (Id. at p. 293.) However, his emotional and physical health interfered with his ability to reunify and care for the child full time. (Id. at p. 294.) A bonding study revealed a potential for harm to the child because the father/daughter bond was fairly strong. (Id. at pp. 295-296.) The social worker even admitted there would be some detriment to the child if parental rights were terminated. (Id. at p. 295.) Further, the child loved her father, wanted their relationship to continue, became upset when the visits ended, and wanted to leave with her father. (Id. at p. 294.) She derived comfort, affection, love, stimulation and guidance from her continued relationship with her father. (Id. at p. 300.)
It was against this backdrop the S.B. court stated it was “troubled” by an argument that time and the child’s strong relationship with her grandmother would eventually ameliorate any detriment to the child. (S.B., supra, 164 Cal.App.4th at p. 299.) In the appellate court’s view, the child’s strong relationship with her grandmother did not negate the harm she would experience from the loss of her relationship with her father. (Id. at p. 300.) According to appellant, S.B. therefore excludes evidence of a dependent child’s bond with foster caregivers as irrelevant to a detriment determination under section 366.26, subdivision (c)(1)(B)(i). Nothing in our reading of the opinion supports such a broad interpretation. Rather it appears S.B. speaks to the compelling evidentiary showing the father made. Such a showing was missing in appellant’s case.
DISPOSITION
The orders terminating parental rights are affirmed.