Opinion
H033822
6-29-2009
In re S. R., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. T. L., Defendant and Appellant.
Not to be Published in Official Reports
T. L., mother of S. R., appeals from an order terminating her parental rights under Welfare and Institutions Code section 366.26. Ms. L. contends that she and S. R. had a beneficial relationship that warranted preservation. We find no error and affirm the order.
All further statutory references are to the Welfare and Institutions Code.
I. Statement of Facts
Pursuant to Evidence Code section 452, subdivision (d), this court has taken judicial notice of the record from the prior appeal In re S. R. (April 4, 2009, H033202) [nonpub. opn.].
In May 2006, the Monterey County Department of Social and Employment Services (Department) filed a juvenile dependency petition, alleging that S. R. came within section 300, subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). The petition stated that three of Ms. L.s four other children were dependents of the juvenile court due to her extensive criminal and substance abuse history. S. R. was born while Ms. L. was incarcerated in county jail in May 2006.
One of the children lives with her father.
Julius R., S. R.s father, is not a party to this appeal.
In the report prepared for the jurisdictional and dispositional hearings, the social worker recommended that the juvenile court sustain the petition under section 300, subdivisions (b) and (g), adjudge S. R. a dependent of the court, remove her from Ms. L.s custody, and deny reunification services for Ms. L. The report also outlined Ms. L.s criminal history, including numerous arrests, convictions, and parole violations, between 1988 and 2005. The social worker further noted that Ms. L.s parental rights had been terminated as to A. M. (age 11 months) in June 2006 and that the section 366.26 hearing for A. G. (age 15) and V. R. (age 10) was set for August 2006.
In July 2006, the social worker filed a family mental health assessment. Ms. L. told the evaluator that she began abusing drugs in 1988, and that her attempts at drug treatment were always unsuccessful. The evaluator did not express an opinion as to Ms. L.s prognosis for overcoming her substance abuse problems, but noted that Ms. L. had only been able to maintain her sobriety when she was incarcerated.
Following a contested jurisdictional hearing, the juvenile court adjudged S. R. a dependent child, placed her in foster care, and denied reunification services to Ms. L. The court also ordered that there be no visitation with Ms. L. until the Department determined that it would be safe for S. R. or until further court order.
In the report prepared for the six-month review hearing, the social worker stated that A. G. and V. R. were dependents under the permanent plan of long term foster care. Ms. L. was currently in a substance abuse program at the California Rehabilitation Center, and she had not had visitation with S. R. for five months. S. R.s foster parents were willing to adopt her.
During the summer of 2007, the Department began having concerns regarding S. R.s foster parents. In November 2007, the Department moved S. R. from the foster parents home. Meanwhile, Ms. L. was transferred from state prison to the drug and alcohol treatment program at Walden House in San Francisco.
In the report for the section 366.26 hearing, the social worker recommended the termination of Ms. L.s parental rights and approval of adoption as the permanent plan. The social worker stated that S. R. initially experienced some difficulties with her new prospective adoptive parents, but was becoming increasingly attached to them. The social worker also reported that there was not a solid bond between S. R. and Ms. L. At their visit in December 2007, S. R. did not recognize Ms. L. and she was "very anxious and scared."
In March 2008, Ms. L. filed a modification petition under section 388, and sought return of S. R. to her. The following month, the social worker filed addendum reports in which he provided information about Ms. L.s progress at Walden House. Though the social worker recognized that Ms. L. was doing well in the program, he concluded that she was not ready to parent S. R. on her own based on her lengthy substance abuse and criminal history. He further noted that Ms. L. had never successfully parented any of her five children for any extended period of time and had visited S. R. only seven times in two years.
In May 2008, the juvenile court began the hearing on the section 388 petition. Dr. Joseph Greene, a child and adolescent psychiatrist, testified that he had reviewed various social worker reports and service logs. About a month earlier, Dr. Greene observed Ms. L. and S. R. at their sixth visit. The foster father was also present. Ms. L.s interaction with S. R. was appropriate, but the foster parent was the psychological parent to whom S. R. was attached. In his view, S. R. was anxious about her attachment to the current foster parents, because she had been removed from the prior foster parents custody, and thus it would be harmful to S. R. if her current placement was changed. Dr. Greene found it sad that S. R. had not been placed with Ms. L. in a highly supervised environment in November 2007. However, Dr. Greene did not review any of Ms. L.s psychiatric records, and he did not know much about her substance abuse history. The matter was then continued until July 2008. After further testimony was presented, the trial court denied the section 388 petition. The trial court found that it would not be in S. R.s best interests to reunify with Ms. L., because S. R. was over two years old and had bonded with her current foster parents.
In October 2008, the social worker filed an addendum report for the section 366.26 hearing. The social worker noted that S. R. was bonding with her current caregivers and she was thriving in her current foster home. Ms. L. had been attending monthly supervised visits with S. R. since December 2007. However, it was only in the last four months that S. R. had shown signs that she was becoming more comfortable with Ms. L. S. R. did not seek reassurance from her foster parents during these visits, and she no longer exhibited defiant behaviors or anxiety either before or after the visits. The social worker attached a report from the Kinship Center, which stated that S. R.s "development has flourished in this home, particularly in the area of emotional growth and verbal skills." The social worker continued to recommend adoption as the permanent plan.
In November 2008, the social worker filed a supplemental report in which he stated his observations of Ms. L.s last three visits with S. R. At the August 2008 visit, S. R. appeared to be enjoying the visit less, because her sister, A. M., was not present. When A. M. eventually arrived, S. R. became more involved with A. M. than Ms. L. S. R. also resisted Ms. L.s requests for a kiss and a hug at the end of the visit. At the September 2008 visit, A. M. was present. There was minimal verbal communication between Ms. L. and S. R. When Ms. L. asked for a hug and a kiss, S. R. appeared distressed. Ms. L. also did not intervene when the two girls ran towards the street. At the October 2008 visit, Ms. L. was more actively involved with S. R. S. R.s response to Ms. L. was "much like that of a playmate, a big sister or friend." Thus, when S. R. was hurt, she sought comfort from her foster mother. The social worker also noted that Ms. L.s interest in S. R. did not extend beyond the visits, that is, she did not ask about S. R.s life with her foster parents or her progress with other service providers.
The social worker described S. R. as a healthy toddler who did not exhibit any delays in her development. The social worker also noted that S. R. had made significant emotional and developmental progress while in the current foster parents home. S. R. had been fully integrated into the foster family, and the foster parents were doing an excellent job of parenting S. R. The social worker further noted that the foster parents would like Ms. L. to continue visiting S. R. if Ms. L. maintained her sobriety,
The social worker included a report from the Kinship Center that documented the social workers assessment of S. R.s progress and strong bond to the foster family.
On November 17, 2008, the court began the contested section 366.26 hearing. Two exhibits, including a summary of all contacts, services, and visits by Sharon Gold, the former social worker, and a summary of her attempts to determine S. R.s Indian heritage, were filed with the court. Ms. L. then indicated that S. R.s father had Choctaw Indian heritage. After Gold testified regarding compliance with the Indian Child Welfare Act (ICWA), the juvenile court ordered the Department to send notice to the Choctaw tribe. The Department then submitted on the documents that had been filed, and the juvenile court found by clear and convincing evidence that S. R. was adoptable and was likely to be adopted, and gave Ms. L. the opportunity to establish the beneficial parental relationship exception to the termination of parental rights. Ms. L. described her monthly visits with S. R. She read to her and played with her on the swings. When they parted, S. R. always refused a kiss, and, according to Ms. L., her refusal was a game between them. She also stated that she asked the social worker for increased visits and visits alone with S. R., but he refused to arrange them. The juvenile court admitted the prior testimony of Dr. Greene. The matter was then continued until January 2009 for a determination of compliance with the ICWA, any further evidence, and closing arguments.
The Department filed various documents relating to compliance with the ICWA.
On January 28, 2009, the juvenile court held the continued section 366.26 hearing. Following argument, the juvenile court found that ICWA did not apply, that S. R. was adoptable, and that Ms. L. failed to meet her burden of proof that the benefits of retaining the parent-child relationship outweighed the benefits of adoption. The juvenile then selected adoption as the permanent plan and terminated Ms. L.s parental rights.
II. Discussion
Ms. L. contends that she and S. R. had a beneficial relationship, and the loss of that relationship will be detrimental to S. R.
Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the "court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] . . . The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(B)(i).)
This court interpreted the beneficial parental relationship exception to the termination of parental rights in In re Beatrice M. (1994) 29 Cal.App.4th 1411 (Beatrice M.). "Although the kind of parent/child relationship which must exist in order to trigger the application of section 366.26 . . . is not defined in the statute, it must be sufficiently strong that the child would suffer detriment from its termination. In In re Autumn H. (1994) 27 Cal.App.4th 567, 576, the Fourth Appellate District defined the `benefit from continuing such a relationship as follows: `In the context of the dependency scheme prescribed by the Legislature, we interpret the "benefit from continuing the [parent/child] relationship" exception to mean the relationship 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. 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 parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)" (Beatrice M., at p. 1418, italics omitted.)
In In re Brittany C. (1999) 76 Cal.App.4th 847 (Brittany C.), this court also stated that "Autumn H.s requirement that the parent prove that the child would be greatly harmed by termination of parental rights must be seen in context. Where a parent has failed to reunify with his or her child, and the juvenile court has found that the child is likely to be adopted, then the burden shifts to the parent to show exceptional circumstances. (In re Brian R., supra, 2 Cal.App.4th 904, 923-924.) To require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law, that is, the protection of `children who are physically, sexually or emotionally abused, neglected or exploited. (§ 300.) Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. [Citations.] (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) Thus we agree with the analysis of Autumn H. and Beatrice M." (Brittany C., at p. 853.)
On appeal, the juvenile courts finding is subject to review for sufficiency of the evidence. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
Here, there was no evidence that S. R. would benefit from continuing her relationship with Ms. L. Ms. L. never functioned as a parent to S. R. Since Ms. L. was incarcerated and then transferred to a residential drug treatment program, she had no contact with S. R. between S. R.s birth in May 2006 and December 2007. Between December 2007 and January 2009, Ms. L.s only contact with S. R. was monthly one-hour supervised visits. During those visits, S. R. did not exhibit a "substantial, positive emotional attachment" to Ms. L. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Though S. R. no longer sought reassurance from the foster parents during the visits and had stopped exhibiting defiant behavior or anxiety before and after her visits with Ms. L., the change in S. R.s behavior was the result of her developmental and emotional progress in the foster parents home rather than her contact with Ms. L. Since S. R. was thriving in the prospective adoptive parents care, there was substantial evidence to support the juvenile courts finding that the benefit to S. R. of a permanent adoptive home outweighed any benefit from her relationship with Ms. L.
Ms. L. relies on In re S. B. (2008) 164 Cal.App.4th 289 (S. B.) and In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), to support her position. Both cases are factually distinguishable. In S. B., the father was the primary caretaker for the child until she was three years old, he visited her three times a week during the dependency, the child wanted to leave with her father at the end of the visits, and the father conceded that health problems prevented him from caring for the child full-time. (S. B., at pp. 292, 294.) The reviewing court held that the trial court erred when it terminated parental rights. (S. B., at p. 301.) In Brandon C., the reviewing court held that there was substantial evidence to support the order selecting guardianship as the permanent plan. (Brandon C., at p. 1532.) In that case, the paternal grandmother, who was appointed the childrens legal guardian, testified that the mother had visited the children weekly during the dependency, that the children looked forward to her visits, they had a good relationship with her and seemed to love her, and they referred to her as " `Mommy. " (Brandon C., at p. 1536.) The paternal grandmother also testified that it would not be in the childrens best interests to terminate the mothers parental rights. (Brandon C., at pp. 1536-1537.) In contrast to the parent-child relationships in S. B. and Brandon C., Ms. L. did not have a significant relationship with S. R.
III. Disposition
The order is affirmed.
We concur:
Bamattre-Manoukian, Acting P. J.
Duffy, J.