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In re P.J.

California Court of Appeals, Fourth District, Third Division
Mar 5, 2008
No. G039000 (Cal. Ct. App. Mar. 5, 2008)

Opinion


In re P. J., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ASTOU C., Defendant and Appellant. G039000 California Court of Appeal, Fourth District, Third Division March 5, 2008

NOT TO BE PUBLISHED

Appeal from a postjudgment order of the Superior Court No. DP009807 of Orange County, Caryl Lee, Judge.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

OPINION

RYLAARSDAM, ACTING P. J.

Astou C., mother of a now four-year-old child, appeals from an order terminating her parental rights, claiming the court erred in failing to apply the benefit exception under Welfare and Institutions Code section 366.26, subdivison (c)(1)(B)(i) (formerly § 366.26, subd. (c)(1)(A); all further statutory references are to this code). Although the record shows mother loved the child, there was insufficient evidence the exception applied. Therefore, we affirm.

FACTS

This is the second time this case has come before us. Originally, mother filed a petition for writ of mandate challenging the order terminating reunification services and setting a permanency hearing under section 366.26. We granted the petition and ordered an additional six months of services in Astou C. v. Superior Court (Dec. 12, 2005, G035880) (nonpub. opn.). That opinion states the relevant facts up through the time of those proceedings; we will not repeat them here.

After the writ petition was filed, mother, diagnosed with schizophrenia, was again hospitalized in October 2005, this time for almost five months. As noted in a status report filed by the Orange County Social Services Agency (SSA), this was at least mother’s fifth hospital stay since 2002. The duration of her hospitalizations increased each time and “each psychotic break appears to have resulted in an increased display of violent behavior . . . .”

The incident leading to the 2005 involuntary hospitalization involved mother inflicting seven 1-inch knife wounds on her forearms and wrists. Responding to a 911 call, police found mother severely bleeding; she was holding her female landlord, whom she had tied at the wrists, by the hair. After mother was ordered to release her and failed to do so, police had to taser her twice until she let go. Mother then began screaming, “You’re gonna to die.” During the first few days of her detention, mother alluded to killing both herself and the SSA supervisor. Just a few weeks prior mother had told her social worker, “Me and my children are not afraid to die.”

When mother left the hospital in February 2006 the discharge report stated mother’s prognosis “is poor” because she “‘has no understanding of her mental illness or the need for treatment.’” According to mother’s therapist, primarily because of her mental illness mother “does not have the insight required to internalize concepts needed to function as a parent in a safe and effective manner . . . to parent the child . . . on a daily basis.” A case manager at the Orange County Health Care agency reported “[t]here is no way [mother] is capable of parenting.”

Despite her generally consistent visitation except during periods of hospitalization, mother failed to progress beyond monitored visitation. In addition, as the social worker noted, the quality of visits never improved but actually “deteriorated.” Mother did not discipline child or set boundaries, commenting she did not “want to upset” the child. Mother sometimes fell asleep during visits, stepped out of the visitation area for periods of time, or left visits early. At one visit, after telling the child to kick her instead of a door, when the child did so, mother raised an arm and tried to hit the child. When the social worker intervened to stop her, mother asked, “Well, what else am I going to do?”

The child had negative reactions to visits, including hyperactivity, inattention, aggression, mood swings, depression, fear, and anxiety. At times she lost her appetite and could not control her bowels. At least once she asked to leave a visit early, another time she cried “[n]o, [n]o” when beginning a visit, and she was happy to leave visits. Shortly before the 18-month review hearing, when the child’s therapist asked about a visit with mother, she replied, “I don’t like my visits [with her] and don’t ask me again.” A couple of weeks later the child “had to be ‘carried screaming and crying to the car . . . because she did not want to go to her visit . . . .”

The child did not want physical contact with mother, saying, “no,” “Don’t touch me,” or “I don’t like that.” At a visit a month before the permanency hearing, when mother told the child she was her mother, the child responded, “No mommy is at home, you are Astou.” She then hit mother, who reacted by “look[ing] into space.” SSA concluded that “the child has clearly demonstrated through her actions and her words that [she] is rejecting [mother] as a parental figure.”

In ruling after the permanency hearing, the court found “beyond a shadow of a doubt that . . . mother loves this child.” It also found that mother’s mental illness was “a huge factor” in the case. As to the benefit exception, it stated that when mother was not hospitalized she regularly and consistently visited the child, but that “[m]erely consistently keeping the schedule is not enough.” The judge found that the quality of the visitation was poor, with “multiple accounts of . . . troubled visitation.” The child, who often did not want to visit with mother, suffered physical and emotional problems as a result of visits. Additionally, mother did not demonstrate she had sufficient parenting skills to control the child. The court terminated parental rights, found that child was adoptable, and made all other necessary related findings.

Additional facts are set out in the discussion.

DISCUSSION

Under section 366.26, subdivision (c)(1), parental rights may be terminated if there is clear and convincing evidence of adoptability. But an exception exists where a parent has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “A beneficial relationship is one that ‘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.’ [Citation.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) To come within this exception a parent has the burden of proof to show she has a “‘parental role’ in the child’s life. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Mother did not satisfy her burden.

The extent of the evidence mother presented as to her parental role with the child is her testimony that, during visitation they played games, she brought food, she regularly bathed the child, and she supervised child’s visits to the bathroom. The child also liked mother to hold her, kissed and hugged her at all visits, and told mother just weeks before the hearing that she loved her. Mother explained that only one time had the child refused to be touched. She also testified that, although the child had called mother Astou for a period of time, by the last couple of months before the hearing she called her “mommy.”

Regarding mother’s testimony, the court noted her “belief about the relationship is certainly a different one [than that presented by SSA.] The court is not going to go so far as to say mother is lying. I would not say that at all. I believe that her belief or her own evaluation of the relationship is quite different, and I believe she sees it that way. [¶] . . . I think she spoke from the heart, but I think that her view of the evidence was different.”

The court did not find mother credible. It could not “ignore the multiple accounts of the troubled visitation and the effects on the child physically and emotionally . . . .” There was ample evidence of the poor quality of the visits.

Moreover, although she has not consistently maintained this position, mother at least one time acknowledged that it is in the child’s best interest not to stay in her care and stated she would like her to stay with her prospective adoptive parents who have already adopted the child’s half sister, Fiona. (We affirmed termination of mother’s parental rights to Fiona in In re Fiona G. (Apr. 17, 2006, G036130) [nonpub.opn.].)

The SSA report also states the child is happy and “thriving” with and loves the prospective parents, who “are providing a loving, stable, and safe environment . . . .” The child’s therapist reported that the child “has a great attachment with her foster parents . . . and . . . feels safe with them. The child has said, “Mommy is Brook[] and her Daddy is Dan” and “she is ‘very happy with [them].’”

In addition, mother did not overcome the substantial evidence of her inability to understand and fulfill the role of a parent. Nor did she discuss her severe mental illness, which is a significant factor in her ability to parent. We commend her attempts to deal with this condition but they have not been sufficient to outweigh the benefit to the child to be adopted and live in a safe, secure home.

In considering the benefit exception, “‘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.’ [Citation.] [¶] The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Mother has not satisfied these factors.

Mother emphasizes her desire to teach the child about the heritage of her African culture and her extended family. If parental rights are terminated, mother contends, the child will never know this information. This argument lacks merit.

First, there is no evidence the child will not be taught about African culture if adopted. Second, in every adoption there is the possibility that the child will not learn of his or her biological family. This cannot be used as a basis to block an otherwise proper adoption. We understand mother’s concern but on balance the child’s overall well-being if adopted far outweighs this factor.

We are not persuaded by mother’s comparison of the facts of this case with those she characterizes as “more troubling” in In re Amber M. (2002) 103 Cal.App.4th 681, where the court held the benefit exception did apply. Contrary to the facts in Amber M., here there is no evidence the child has “‘a primary attachment’” to mother or that mother has a “‘primary maternal relationship’” with her, as a psychologist in Amber M. concluded. (Id. at p. 689.) In addition, the Amber M. court did not find the benefit exception applied; it merely reversed for a new hearing to determine whether it had been proven. (Id. at p. 691.) Where, as here, substantial evidence supports the ruling, we will not substitute our judgment for that of the juvenile court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)

DISPOSITION

The order is affirmed.

WE CONCUR: O’LEARY, J., FYBEL, J.


Summaries of

In re P.J.

California Court of Appeals, Fourth District, Third Division
Mar 5, 2008
No. G039000 (Cal. Ct. App. Mar. 5, 2008)
Case details for

In re P.J.

Case Details

Full title:ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ASTOU…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 5, 2008

Citations

No. G039000 (Cal. Ct. App. Mar. 5, 2008)