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In re M.W.

California Court of Appeals, First District, First Division
Jul 23, 2008
No. A120268 (Cal. Ct. App. Jul. 23, 2008)

Opinion


In re M.W., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO DEPARTMENT OF HUMAN RESOURCES, Plaintiff and Respondent, v. ANDREA B., Defendant and Appellant. A120268 California Court of Appeal, First District, First Division July 23, 2008

NOT TO BE PUBLISHED

San Francisco County Super. Ct. No. JD05-3031

Marchiano, P.J.

Appellant Andrea B. is the mother of 10-year-old M.W., a female dependent child of the juvenile court. Mother contends the juvenile court erred by terminating her parental rights. Specifically, she claims the court should have found applicable the “beneficial relationship” exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) We disagree because no such relationship exists on the facts of this case. Accordingly, we affirm the order terminating Mother’s parental rights.

Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.

I. FACTS

On February 1, 2005, when M.W. was seven, respondent San Francisco Department of Human Services (Department) filed a dependency petition alleging that Mother had failed to protect M.W. and was not able to care for her. (§ 300, subds. (b) & (g).)

The Department made a third allegation which was later deleted by amendment, and is not at issue on appeal.

The petition alleged the following. South San Francisco Police arrested Mother on January 29 on felony charges of burglary and conspiracy. M.W. was in the back seat of Mother’s car when Mother was arrested. Mother could not tell police a name of a relative to care for M.W. Mother told police she was a prostitute. Mother had a substance abuse problem requiring treatment. There were at least seven prior referrals to Children’s Emergency Services involving substance abuse, neglect and abandonment, prostitution, and domestic violence. Mother was currently incarcerated and unable to care for M.W.

M.W. was placed in shelter care. The February 1 detention report confirmed that Mother was incarcerated in San Mateo County and stated that M.W.’s father’s whereabouts were unknown. On February 2, the court detained M.W. in foster care and set a settlement conference on jurisdiction and disposition for March 9.

The March 4 disposition report indicated that Mother had a history with the Department dating back to 1997. She had a long history of substance abuse involving heroin and methamphetamine. Mother has an extensive arrest record and criminal convictions for robbery and grand theft. In 1999, Mother left M.W. with the paternal grandmother, but took M.W. back almost two years later when the grandmother filed for legal guardianship. M.W. has witnessed Mother being beaten by various male partners, who have also beat M.W. Mother left M.W. alone in the car frequently “while she went somewhere with various men.” M.W. was scared when she was left alone.

The Department concluded that Mother “appears to be very bonded to her daughter, but due to her addiction has exposed her daughter to domestic violence, substance [ab]use, neglect, and put the child at risk for sexual and physical abuse.” Mother continued to be incarcerated.

M.W. had responded “very positively” to her foster parents. The Department recommended reunification services for Mother, with jail visitation. The Department also recommended that M.W. be placed with a relative. One possibility was the paternal grandparents, because M.W. had lived with the paternal grandmother for almost two years “and has a close relationship” with her.

The dispositional report indicated that the father had been located. He is not a party to this appeal, so we do not discuss the juvenile court proceedings as they regard to him.

On March 9, the court approved jail visitation and relative placement. On March 15, the court approved a contact jail visit with Mother prior to M.W.’s anticipated placement with the paternal grandparents, who lived in Southern California. M.W. started living with her grandparents on March 28.

On April 14, the juvenile court amended the dependency petition and found the allegations true. The court declared M.W. a dependent child. On May 10, the court ordered M.W. placed with her paternal grandparents. The court also ordered reunification services and supervised visitation for Mother.

As amended, the petition essentially alleged that (1) Mother failed to protect M.W. because the child was in the backseat of Mother’s car when Mother was arrested, and that Mother had a substance abuse problem requiring treatment; and (2) Mother could not care for M.W. because she was incarcerated. The court deleted the petition’s references to prostitution and added that the seven prior referrals “were unsubstantiated.” The court also deleted the third allegation referred to in footnote 2, ante.

The September 20 six-month status review report noted that Mother had been sentenced to a five-year prison term. Her release date was April 19, 2009, but release in 2007 was possible if Mother participated in Fire Camp, a firefighter training course. Mother had not begun participating in most of the reunification services. She was attending weekly AA/NA meetings, but could not enter a substance abuse program because she had committed to attending Fire Camp. She planned to sign up for a parenting class.

Mother was exchanging letters with M.W. and had requested visits. The paternal grandmother had agreed to accompany M.W. to the prison and supervise visitation. Mother had been transferred to a prison closer to the grandparents’ home, and the grandmother had agreed to accompany M.W. to the prison “regularly . . . on the weekends.”

M.W. had some behavior problems in school, but was improving. She was “doing very well” in therapy, but her therapist believed that in the “long term, it was in [M.W.’s] best interest to remain with her [p]aternal [g]randparents.” M.W. wanted to visit Mother, but the therapist “has concerns about the emotional fall-out and the behaviors [M.W.] would exhibit after the visits” with Mother.

M.W. “had a strong bond” and “a close bond” with the grandparents, “who have been involved most of her life.” The grandparents are “committed, responsible, and attentive to her needs.” They have provided M.W. with “a caring and stable home” with “unwavering attention” and “unconditional love.” M.W. told her Department social worker “that she has never lived in a better place, wants to live with [her paternal grandparents] long-term, and wants them to be legally responsible for her.” The grandparents “consistently communicate and demonstrate their commitment to M.W. and state they are willing to accept legal responsibility for her.” The Department believed “this is the most appropriate plan and [is] in the best interest of [M.W.].”

The Department noted that M.W. and Mother “share a bond and should continue remaining in contact through letters and visits, as long as they are appropriate and not detrimental to [M.W.’s] well being.”

The Department recommended that the juvenile court terminate reunification services and approve long-term placement with the paternal grandparents as the permanent plan.

On November 12, M.W. visited Mother in prison.

On November 30, the juvenile court conducted the six-month review hearing and terminated reunification services.

On December 8, the court ordered at least one daytime prison visit every other month, in the prison visiting center. The court ordered the Department to facilitate visitation and transportation.

The next status review report, filed March 20, 2006, stated that Mother was still in prison. She was due to be released in April of 2009. She was participating in a parent training course. M.W., who had been in her grandparents’ home for almost a year, “continues to make improvements.” She “appears to be doing well in this home and has a very positive relationship with her grandparents.” Her school behavior continued to improve, but required additional work on certain issues. She was making some improvements with a new therapist.

Subsequent dates are in 2006 unless otherwise indicated.

The Department noted that M.W. visited Mother again on February 18. The grandmother took her to the prison and agreed to do so again in April.

The Department concluded that M.W. has gained stability in her grandparents’ home and “is surrounded by family members and has many people who love and support her in this home.” The social worker tried to speak to M.W., who was then eight, about adoption: M.W. replied that “she liked living there and would like to live there forever.” The social worker concluded that “it is in [M.W.’s] best interest to pursue adoption by her grandparents, and hopefully continue some kind of relationship with [Mother] while in the safety of her grandparents[’] home.”

On April 4, the court continued the placement with the grandparents.

M.W. visited Mother in July.

The September 15 status review report noted that Mother “remains incarcerated until 2009.” She had completed a parenting class. She requested more frequent visits with M.W. M.W. “has said she likes visiting her mom, but her grandmother reports that M.W. often has difficulty after the visits. She becomes more defiant, hyperactive, and has difficulty following directions.” Apparently, she also had nightmares after visits. The grandmother does not feel visits should be more frequent because visits “seem[] to negatively affect [M.W.]”

M.W. was doing well in her grandparents’ home, has made improvements, likes school and has many friends. She was making improvements in therapy. Her therapist reported that she “does have a lot of negative memories of her time with her mother. They involve drug use, being left alone, and being scared.” The therapist reported that “[M.W.] has grown very attached to her grandparents.”

The Department reported that the grandparents continued to want to adopt M.W., and that the Department, as well as the therapist, supported adoption. The grandparents were open to M.W. having continued contact with Mother.

On November 16, the Department filed an interim review report requesting a hearing under section 366.26 (.26 hearing) to modify the permanent plan from long-term placement to adoption. The Department had approved an adoptive home study and the grandparents continued to want to adopt M.W., who was “thriving.”

On January 23, 2007, after a contested hearing, the juvenile court set a .26 hearing for May 16, 2007, with the specific goal of adoption.

Subsequent dates are in 2007 unless otherwise indicated.

On February 28, at a hearing unrelated to the issue on appeal, the parties agreed there was “a bond” between Mother and M.W.

The April 19 report for the .26 hearing recommended that the juvenile court approve adoption as the permanent plan and terminate Mother’s parental rights. Mother remained incarcerated, and would not be released until 2009. M.W. had last visited her in January. Since that visit, M.W. has said that she no longer wants to visit Mother in prison. She also said she was “ ‘very busy in the 4th grade’ ” and does not have time to write Mother letters. She still spoke positively of Mother, and said she will visit Mother when she is released from prison.

M.W., now nine, continued to do well in her placement with her grandparents. She had lived with them now for over two years and was “talkative, bright, and active.” Her behavior had improved “tremendously.” Her primary attachment was to her paternal grandparents. Mother had not “provided day to day care of [M.W.] for a significant period of time.” The grandparents have “a loving, playful, and positive bond” with M.W. and “have helped stabilize [her] mental health by providing consistency and support.”

The .26 report concluded that M.W. was adoptable and stated that she “has expressed that she would like to be adopted.”

On August 22, the Department filed an addendum report. The Department adhered to its recommendation of adoption. The report noted that M.W. had visited Mother in May and now said she likes to visit her, but wants to visit Mother only twice per year.

On September 10, the court held a contested .26 hearing. Mother, being still in prison, was not present. The .26 hearing could not proceed unless the court had a written waiver of her presence. (Pen. Code, § 2625, subd. (d); see In re Jesusa V. (2004) 32 Cal.4th 588, 621-624.) After Mother’s counsel raised the issue, the court stated that it had been informed by the sheriff’s department that Mother had refused transportation from prison and signed a waiver of her appearance. The court said it was trying to get a copy faxed over, “but under the circumstances we’re going to proceed with the case.” Mother’s counsel said she had no reason to believe the sheriff’s department was mistaken, and “I am just going to submit to the Court. If the Court decides to proceed in her absence, no problem.”

The court proceeded. M.W.’s social worker was the only witness. At the conclusion of the social worker’s testimony, the juvenile court found M.W. to be adoptable, a finding which is not contested on appeal. The court further found that the “beneficial relationship” exception to adoption did not apply. Specifically, the court found, following the appropriate test set forth in In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), that there was no evidence “that severing the parent/child relationship would deprive this child of a substantial positive and emotional attachment.”

The court terminated Mother’s parental rights and ordered that adoption was the permanent plan for M.W.

The court ruled that “some visitation is appropriate” and spoke favorable of visits twice a year, apparently after Mother was released from prison.

The court filed its formal order on September 12.

On September 20, Mother filed an “Application for Rehearing.” The application, supported by a declaration of counsel, was limited to the issue of Mother’s absence from the .26 hearing on September 10. Counsel declared that Mother had intended to be present for the .26 hearing and never signed a waiver of her appearance.

On October 17, Mother filed a brief in which she argued from Penal Code section 2625, subdivision (d) that she had a right to be present, and requested rehearing on that sole basis.

M.W.’s counsel filed a brief in opposition to the motion.

On October 23, the court heard the matter, and treated the application for rehearing as a motion for reconsideration. The court granted reconsideration on the ground that the information regarding the appearance waiver was inaccurate, and set a continued hearing for December 14 so that Mother could be present and testify. The court made it clear it was not granting rehearing but “reconsideration,” telling Mother’s counsel the continued hearing was for her “to present any additional evidence that you feel was necessitated by the absence of your client.”

Meanwhile, M.W. turned 10 in late November.

Mother signed a waiver of her appearance for the December 14 hearing and was not present. The court adopted all of its previous orders, including its finding of adoptability, termination of parental rights, and a permanent plan of adoption. No one, particularly Mother’s counsel, raised the issue of whether M.W. was entitled to notice of the December 14 continued .26 hearing because she was now 10 years old. (§ 294, subd. (a)(3).)

On December 17, the court filed its final order. Mother filed her notice of appeal on December 20.

II. DISCUSSION

Mother contends that the juvenile court should have found applicable the beneficial relationship exception to adoption. We disagree because the court correctly found the exception was not supported by the evidence.

Once a juvenile court makes a finding of adoptability at a .26 hearing, the court must terminate parental rights and order that the child be adopted—unless the parent can prove one or more of five statutory exceptions to termination of parental rights. (In re Thomas R. (2006) 145 Cal.App.4th 726, 731 & fn. 2.) The exception at issue in this case is found in former section 366.26, subdivision (c)(1)(A): “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

Section 366.26 was amended in 2007. (Stats. 2007, ch. 583, § 28.5, p. 3919.) The amendment reconfigured the statute, such that subdivision (c)(1)(A) is now subdivision (c)(1)(B)(i). This change, and other relatively minor amendments to the statute, are inapplicable to this case as they did not come into effect until January 1, 2008—after the juvenile court’s rulings.

This exception means that the parent has continued to exercise a parental role (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419), and the benefit of continuing that parental role would outweigh the well-being the child would gain in a new adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.) “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.” (Ibid.)

“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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.)

That is not the case here. Indeed, this case is almost a classic example of the inapplicability of the beneficial relationship exception. Mother is in prison. M.W. did not always want to visit her there, or even write. M.W. had negative reactions to visits, apparently including nightmares. Mother’s lengthy history of crime and substance abuse exposed M.W. to negative conditions such as drug abuse, domestic violence, neglect, and the fright of being left alone at a young age in a car while Mother consorted with men. M.W. had been living with her paternal grandparents, who had always been a part of her life, for over two years. While she had “a bond” with Mother, she had a “strong” and “close” bond with the grandparents, who were providing her with a stable and loving home.

The juvenile court correctly found there was no evidence that severing the parent/child relationship would deprive M.W. of a substantial, positive emotional attachment.

Mother’s reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200 is misplaced. In that case, the mother was the only woman with whom the child was bonded. (Id. at p. 1207.) Here, M.W. has a deep and close bond with her paternal grandmother.

Mother also complains that M.W. was not given proper notice of the December 14 continued .26 hearing. Section 294, subdivision (a)(3) requires notice of a .26 hearing to the dependent child, if the child is 10 or older. Section 366.26, subdivision (h)(2), provides that if the child is 10 or older and is not present at the .26 hearing, “the court shall determine whether the minor was properly notified of . . . her right to attend the hearing and inquire as to the reason why the child is not present.”

Mother argues that the court did not properly consider the wishes of M.W. because M.W. was absent. Mother points to testimony of the social worker to the effect that M.W. was never specifically told that adoption meant she might never see Mother again. Apparently, Mother feels M.W.’s presence was required at the December 14 continued .26 hearing to explore this question.

But the issue of notice was never raised at the December 14 continued .26 hearing, or at any time below. In any case, the juvenile court’s orders were made after the evidentiary .26 hearing on September 10, when M.W. was nine and was not entitled to notice of that hearing. Reconsideration was granted solely on the question of Mother’s right to be present at the .26 hearing on September 10, and the December 14 continued hearing was held solely for the purpose of allowing Mother to be present and testify—a right she ended up declining after all the fuss of the motion for reconsideration. The December 14 continued .26 hearing was perfunctory and the court merely adopted its previous orders from September 10. It would elevate form over substance to now reverse for a lack of notice of a hearing that simply adopted previous findings with no new evidence or substantive argument, and which generated barely seven pages of reporter’s transcript.

In any case, the record is clear that the juvenile court carefully considered M.W.’s wishes, as conveyed in the Department’s reports and the testimony of the social worker. Indeed, the parties stipulated at the .26 hearing on September 10 that if M.W. were present, she would testify that “I want to continue to live with my paternal grandparents, and I want them to adopt me. I understand that my grandparents will become my parents, and I will not live with [M]other . . . again.” Mother’s counsel’s stipulation was qualified by her inability to cross-examine M.W.—but the court reminded Mother’s counsel that M.W. was not present at the .26 hearing on September 10 because Mother’s counsel failed to properly serve a subpoena on her.

III. DISPOSITION

The order terminating parental rights is affirmed.

We concur: Swager, J., Margulies, J.

Subsequent dates are in 2005 unless otherwise indicated.

Mother also claims the juvenile court made inconsistent rulings by finding no beneficial relationship, but allowing for visitation. There is no inconsistency.


Summaries of

In re M.W.

California Court of Appeals, First District, First Division
Jul 23, 2008
No. A120268 (Cal. Ct. App. Jul. 23, 2008)
Case details for

In re M.W.

Case Details

Full title:In re M.W., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO…

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

Date published: Jul 23, 2008

Citations

No. A120268 (Cal. Ct. App. Jul. 23, 2008)