Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County No. CK61254. Marilyn Mackel, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Veronica V.
Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant Jaime G.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Appellant.
MALLANO, P. J.
Jaime G. (Father) and Veronica V. (Mother) appeal from a June 20, 2007 order terminating their parental rights to Sabrina G., born in December 2004. Because substantial evidence supports the trial court’s rejection of the beneficial relationship exception to termination of parental rights, we affirm the order.
We take the background up to December 2006 from our prior opinion denying Father’s petition for an extraordinary writ challenging a December 11, 2006 dispositional order denying family reunification services. (Jaime G. v. Superior Court (Mar. 21, 2007, B195924) [nonpub. opn.].)
On October 21, 2005, when Sabrina was 10 months old, she was detained at the hospital after her mother, Veronica V. (Mother), reported that Sabrina had stopped breathing. Late in the evening of October 19, 2005, Mother awakened Father and told him that Sabrina was not breathing. Father performed CPR and they took Sabrina outside for some fresh air. After Sabrina was resuscitated, Father went back to sleep. Mother woke him up again because Sabrina was not breathing. The parents called 911, and paramedics took Sabrina to the hospital at 1:40 a.m. on October 20.
According to Mother, Sabrina stopped breathing on several occasions beginning in August 2005 and Mother took Sabrina to three different hospitals, where she was diagnosed with acid reflux and was prescribed medication. But Mother did not fill the medication prescription immediately because she had no medical coverage and could not afford the medication. Mother also admitted that upon Sabrina’s discharge from a hospital in early October, she failed to follow up on a return appointment for an EEG.
When Sabrina was in the hospital on October 20, she did not show any signs of difficult breathing or vomiting. However, Sabrina was diagnosed with pulmonary edema (fluid accumulation and swelling in the lungs), a small retinal hemorrhage in her left eye, and a lot of bloody mucus in the back of her throat. Hospital workers noted that Mother had a “flat affect.” When Mother was asked to hold an oxygen mask over Sabrina’s face, Mother pushed the mask hard onto the child’s face.
Mother told the hospital staff that two years earlier, in November 2003, when Father was at work, their two-month-old daughter, Melanie, had died after exhibiting the same symptoms as Sabrina. The coroner who had performed the autopsy on Melanie told the social worker for the Department of Children and Family Services (DCFS) that Melanie had some blood and a “small amount of pneumonia in her lungs,” but he could not determine if Melanie died from pneumonia or from being smothered.
The emergency room physician who treated Sabrina on October 20 was concerned that Sabrina may have been suffocated or had suffered some kind of abuse, and that Mother had Munchausen’s syndrome by proxy. Munchausen’s syndrome by proxy, also known as “Fabricated and Induced Illness,” implies a psychiatric disorder of Mother. According to the detention report prepared by DCFS, “because of the findings from the physical examination, retinal hemorrhage and the blood in the back of [Sabrina’s] throat, mom not acting appropriately; the physician’s assumption is that this could be Munchausen By Proxy or some type of child abuse.”
Munchausen’s syndrome by proxy is “a condition whereby a parent secretly causes the child’s illness in order to attract attention or sympathy.” (Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 120.)
On October 26, 2005, the juvenile court ordered that Sabrina be detained, that the parents submit to an Evidence Code section 730 evaluation, and that the parents’ visitation be “closely monitored.” DCFS was ordered to provide reunification services to the parents, including individual counseling and parenting classes. In November 2005, Sabrina was placed with her godmother, Luz V., where she remains. Luz V., a paternal cousin, is Sabrina’s prospective adoptive parent. While living with Luz V., Sabrina experienced no episodes of choking or breathing problems. By April 2006, Sabrina was not taking any prescribed medications.
In November 2005, the parents separated. In April 2006, Mother was arrested on felony charges arising out of Melanie’s death, but Mother was released two days later, with her criminal case remaining under investigation.
On September 21, 2006, the juvenile court sustained a second amended petition, determining that Sabrina was a dependent of the court pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (severe physical abuse of a child under age five), (f) (causing another child’s death through abuse or neglect), and (i) (cruelty). (Unspecified statutory references are to the Welf. & Inst. Code.)
The foregoing determinations were based on the following findings: When Sabrina was hospitalized in October 2005, her symptoms were abnormal for pneumonia but consistent with suffocation; her younger sister died from undetermined causes consistent with pneumonia, suffocation and smothering; Mother brought Sabrina to six different hospitals and reported different histories to medical personnel, causing Sabrina to undergo numerous repetitive tests and procedures, with all tests returning as normal; Mother also had subjected Melanie to numerous hospital visits and medical tests and procedures; while in the hospital and out of Mother’s care, Sabrina would not suffer from the symptoms reported by Mother and Sabrina’s condition would improve; Father knew or reasonably should have known of Mother’s acts of abuse and failed to take action to protect Sabrina; and Sabrina’s detrimental condition would not ordinarily occur except as the result of unreasonable or neglectful acts and omissions by her parents.
Between November 2005 and December 2006, Father visited Sabrina regularly for two hours each Saturday and Sunday, but he did not complete any court-ordered counseling or parenting classes. Mother’s visits were sporadic and she did not appear at the December 11, 2006 disposition hearing or for the court-ordered Evidence Code section 730 examination with psychologist Michael Ward.
Over the course of the case, the juvenile court obtained the opinions of two doctors who reviewed the medical records of Melanie and Sabrina. A May 2006 report by Dr. English stated that English felt “completely inadequate” to make the determination as to whether “there was an intentional or deliberate effort to harm the children by either parent.” But English believed that “the competence of [Mother] to care for Sabrina is adequately questionable at this time to justify continued placement of Sabrina . . . .” A July 2006 report from Dr. Ticson stated that the circumstances of Melanie’s death were highly suspicious for suffocation but the coroner’s report listed the cause of death as “indeterminate because there was no history [of] suspected child abuse” and no foul play or trauma was suspected by the law enforcement agency. Dr. Ticson also wrote that the “clinical pictures” of Melanie and Sabrina were mirrors of each other, only separated by two years, and “are consistent with intentional suffocation.” The circumstances also very strongly suggested that Mother had the psychiatric disorder of Munchausen’s syndrome by proxy.
Dr. Ward’s December 2006 report of his psychological evaluation of Father stated that Father admitted that he found it hard to believe that Mother would suffocate her child and manufacture illnesses. Ward wrote: “To be frank and blunt, I would have to say that the father does not seem to understand the seriousness of the situation, although I believe that would be quite true of most fathers involved in this kind of a very unusual situation . . . . We have to keep in mind that even the average sophisticated lay person would have a hard time understanding the complex, psychological dynamics of something like a Munchausen Syndrome by Proxy. This is a very rare and unusual disorder, to the degree it does apply in this case. Accordingly, we really cannot greatly fault the father for not having a good understanding of this whole situation, which has to be very confusing for him. Nevertheless, he also emphasized that if the Court said it happened, then he had to believe the Court.”
Dr. Ward also noted that because Father understood that a failure to follow court orders would jeopardize his relationship with Sabrina, “it is reasonable and appropriate to begin increasing and liberalizing his contact with his daughter and to move forward with the reunification process.” Dr. Ward also believed that Father should participate in counseling “to give him at least a little better understanding of [his situation], both in the sense of some of the complex psychological dynamics involved in something like a Munchausen Syndrome by Proxy, but also how, despite the unusual and complex nature of such a disorder, he simply may not have been attentive enough to his daughters’ problems and how the mother was dealing with them, so that appropriate intervention could have occurred much earlier. In other words, it appears he simply let the mother take care of all of these medical issues, and did not question her enough about what is going on, . . . such that there might have been a possibility of him questioning what was happening, even though I recognize that this was a very complex and I’m sure confusing situation to him. When he has completed the programs he was ordered to do, there could then be consideration of completing the reunification process.”
At the disposition hearing on December 11, 2006, the juvenile court found there was no reasonable means to protect Sabrina without removal from her parents’ custody and that there was no substantial probability that she would be returned within six months. A permanent plan hearing was set for May 14, 2007. The juvenile court also denied reunification services to the parents under section 361.5, subdivision (b)(4) and (5).
Section 361.5, subdivision (b) provides in pertinent part: “Reunification services need not be provided to a parent or guardian . . . when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (4) That the parent or guardian of the child has caused the death of another child through abuse or neglect. [¶] (5) That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.”
The court stated that “[t]he most poignant reason for denying formal reunification services lies in the existence of reunification-like services since the inception of the case back in October, 2005, and the reasons that existed when the case came in . . . . [¶] And those services were ordered by the court and . . . we have records of the Father’s participation in [visitation], but he has done nothing else to indicate that if he would be granted further services for a six month period of time that would be in the child’s best interest, and would result in successful reunification services, given that he has done nothing since over a year. [¶] . . . [¶] The child is deserving of permanency and stability and the findings of the court under [section 300, subdivisions (a), (b), (e) and (f)] are supportive of ordering no reunification services for the father. [¶] [H]e has had well beyond the statutory requirement for reunification for a child under the age of three years and has not succeeded in even bringing to the court possible arguments for liberalizing his visits today which is where he should be under the circumstances . . . .”
Father, in propria persona, filed a petition for an extraordinary writ, seeking to vacate the order setting the permanent plan hearing and the order denying reunification services. We denied the petition. (Jaime G. v. Superior Court, supra, B195924 [nonpub. opn.] p. 10.)
A May 14, 2007 section 366.26 report stated that Luz V.’s homestudy was approved in May 2007. According to a May 14, 2007 status review report, Father was consistent in his monthly monitored visits and sometimes visited more than once a month. After December 2006, the foster mother had conflicts with Mother’s inconsistency with visitation and Mother’s insistence that she visit Sabrina on both days of the weekend, so DCFS required that Mother arrange her visits through DCFS and that the visits take place at the DCFS office every other week. After DCFS informed Mother about the new procedures for visits, Mother did not call DCFS and did not visit Sabrina until May 25, 2007. Mother told DCFS that because no reunification services were offered to her, she will not continue with her classes. At a hearing in May 2007, the juvenile court ordered that Sabrina be enrolled in play therapy.
In its June 20, 2007 interim review report, DCFS noted that Father told the social worker that he was enrolled in parenting and counseling classes, but he had not provided any documentation or details about where he was attending classes. The parents had monitored visits for about one and one-quarter hours with Sabrina in a DCFS office on May 25 and June 7, 2007, but Father got lost and was 15 minutes late for both visits. Mother arrived at the May 25 visit first; Sabrina looked at Mother, who told Sabrina to come and sit beside her so that Mother could read her a book. Sabrina obeyed and seemed interested in the book. When Father arrived at the visit, Sabrina ran to his arms and screamed “‘papa,’” “‘papa.’” Sabrina enjoyed playing with Father, and after Father arrived, Mother did not interact much with Sabrina. At the June 7 visit, Sabrina hugged Mother and they played together until Father arrived, when Sabrina played with Father. Father told DCFS that he wanted Sabrina placed in his care.
At the section 366.26 hearing on June 20, 2007, Father’s attorney stated that he was submitting on the issue of whether or not there was an exception to termination of parental rights under section 366.26, subdivision (c)(1)(a). Mother’s attorney also objected to the termination of parental rights. Attorneys for both Sabrina and DCFS argued in favor of termination of parental rights and that neither parent had established the exception under section 366.26, subdivision (c)(1)(a). The juvenile court found that Sabrina was adoptable and terminated parental rights. Each parent appealed from the order. However, Mother’s opening brief set forth no arguments and she only joined in the arguments made in Father’s opening brief.
DISCUSSION
Section 366.26, subdivision (c)(1)(A) affords an exception to termination of parental rights if “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) 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 adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of a beneficial relationship is determined by considering the age of the child, the portion of the child’s life spent in the parent’s custody, the positive or negative effect of interaction between the parent and the child, and the child’s particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) We review the juvenile court’s order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
Assuming that the parents maintained regular visitation, we conclude that substantial evidence supports the juvenile court’s order declining to find the exception because substantial evidence supports the implied finding that a permanent and secure home with an adoptive family promotes Sabrina’s best interest so as to outweigh the benefits of maintaining parental ties in a more tenuous placement. Father argues that terminating his parental relationship was detrimental to Sabrina, but there is no evidence of such in the record.
At the time of the June 20, 2007 hearing, two-and-a-half-year-old Sabrina had been living with her prospective adoptive family for the majority of her life. During the time that Sabrina was detained and removed from parental custody, neither parent voluntarily completed any counseling programs to deal with the issues which brought Sabrina under juvenile court jurisdiction and neither parent progressed beyond closely monitored visitation. There was no evidence at the June 20, 2007 hearing that the preservation of the parental relationship outweighed the benefits to Sabrina of adoption into a loving, secure home. Accordingly, the order terminating parental rights is supported by substantial evidence.
DISPOSITION
The order of June 20, 2007 is affirmed.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 300, subdivision (e) provides in part that a child is within the jurisdiction of the juvenile court if “[t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. . . .”