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In re T.B.

California Court of Appeals, Fourth District, First Division
Apr 14, 2009
No. D053992 (Cal. Ct. App. Apr. 14, 2009)

Opinion


In re T.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.B., Defendant and Appellant. D053992 California Court of Appeal, Fourth District, First Division April 14, 2009

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of San Diego County No. SJ11689A-B, Garry G. Haehnle, Judge.

NARES, J.

T.B. (the mother) appeals judgments terminating her parental rights to her children, T.B. and L.H. (the children). She contends no substantial evidence supports the court's finding the children were likely to be adopted if parental rights were terminated, and the court erred by not finding the beneficial parent-child relationship exception to termination of parental rights and adoption applied in this case. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

The children were taken into protective custody on September 19, 2006, when the mother was arrested on drug charges. The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of five-year-old T.B. and four-year-old L.H. under Welfare and Institutions Code section 300, subdivision (b), alleging they were at risk because the mother had been arrested, she used marijuana in the home, and drugs and drug paraphernalia were found there.

Statutory references are to the Welfare and Institutions Code.

The mother's history with child protective services included numerous incidents of neglect and abuse between 2001 and 2006, but she refused voluntary services. T.B. said the mother and the mother's boyfriend smoked weed and slapped her when she misbehaved. L.H. said there was drinking and fighting in the home. The court ordered the children detained.

The mother had been abused and molested as a child. She was diagnosed as bipolar/schizophrenic. She had left school after the ninth grade, and had never held a job. She tested positive for methamphetamine, but denied using the drug.

On November 6, 2006, the mother submitted to amended petitions. The court found the allegations of the petitions true, ordered the mother to participate in the Substance Abuse Recovery Management System (SARMS), and ordered supervised visits with the children.

The mother struggled to comply with SARMS requirements. She missed some SARMS group meetings and tested positive for drugs. At the disposition hearing on January 18, 2007, the court declared the children dependent children of the juvenile court and ordered them placed in foster care. It ordered the mother to comply with her services plan.

The social worker reported the mother attended counseling and mental health services and had made some progress. She visited the children and they had enjoyable visits together. The children's counselor was helping them to learn coping skills and improve their behavior.

The psychologist who evaluated the mother said she was very motivated to comply with reunification services and had the capacity to learn basic parenting skills, but she had a significant mental illness with evidence of paranoid thinking and a thought disorder. At the six-month review hearing on May 8, 2007, the court continued services.

Subsequently, the mother began unsupervised visits with the children. She enrolled in a dual diagnosis recovery program and participated in SARMS, but she had some positive drug tests and missed some group meetings.

For the 12-month review hearing, the social worker reported the mother had stopped seeing her therapist because she did not like him. She had some positive drug tests and refused residential drug treatment.

At the 12-month hearing on January 8, 2008, the court found the mother had not made substantive progress, and there was no substantial probability the children could be returned safely to her care within six months. It terminated reunification services and set a section 366.26 hearing to determine permanent plans for the children.

For the section 366.26 hearing, the social worker reported the children had pleasant visits with the mother, but were not distressed when visits ended. The mother was often late, missed some visits, and made promises to the children she did not keep. The children were healthy and doing well in foster care. T.B. had mild developmental delays in speech and communication skills, but she was doing well in school. She could be overly passive. L.H. had normal development, but he acted out and was sometimes aggressive. The social worker assessed the children as adoptable. There were no families in San Diego County willing to adopt two children with their characteristics, but 42 families outside the county were available to adopt two children like them. The Agency had located an appropriate adoptive family outside of the county for the children, and in August 2008 they were placed with this family. The children adjusted well and the family wanted to adopt them. The social worker recommended terminating parental rights.

At the section 366.26 hearing on October 21, 2008, the social worker testified the children were generally adoptable and, if they were freed for adoption, it was very likely their current foster family would adopt them. She said they did not have beneficial parent-child relationships with the mother.

The court found the children were adoptable and the beneficial parent-child relationship exception to termination of parental rights and adoption was not present. It terminated parental rights and referred the case for adoption.

DISCUSSION

I. ADOPTABILITY

The mother contends there was no substantial evidence to support the court's finding the children were likely to be adopted. She argues they were not generally or specifically adoptable.

A. Applicable Legal Principles

Before a court frees a child for adoption it must determine by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child--whether his age [or her age], physical condition and emotional state make it difficult to find a person willing to adopt him [or her]." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.) The fact that children are with families who want to adopt them supports a finding they are generally adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) "On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) The appellant bears the burden to show that the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B. Application

The evidence presented at the time of the hearing supported the court's finding the children were generally and specifically adoptable. The social worker described T.B. as a sweet and healthy seven year old, who is adoptable although she has mild developmental delays and enuresis. T.B.'s speech and comprehension were mildly developmentally delayed at the time she was removed from the mother in September 2006, but by the hearing in January 2008 her speech therapist reported she was making good progress, had met her speech and language goals, and was setting new goals. Although she remained placed in a special day class, she was being mainstreamed into general education classes. She had some problems with enuresis, but after she was placed in the prospective adoptive home, this problem stopped except for one incident after the mother told the children they were going to be returned to her home.

L.H. had been reported to be very aggressive toward his sister and other girls in his foster home. However, by the May 2008 report his therapist reported he had made great progress. When he was placed in his adoptive home, he was at times defiant and had temper tantrums, but his caregivers and his teacher were working with him and he appeared to be trying to control his behavior. He began receiving medication for his attention deficit problems. Although he had had two incidents of sexually acting out in the adoptive home, his therapist had talked with him about this, and since that time there had been no further incidents. The social worker said he is a healthy, happy-go-lucky and funny five year old, and, although he has some behavioral problems, he is adoptable.

In addition to being generally adoptable, the children were in a home with approved adoptive parents who had adopted several children and were experienced in being the parents for children with special needs. They wanted to adopt T.B. and L.H. Substantial evidence supports the court's finding the children were likely to be adopted.

II. BENEFICIAL PARENT-CHILD

RELATIONSHIP EXCEPTION

The mother asserts the court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply in this case. She argues she attended weekly visits, the children were happy to see her, and they enjoyed the visits. She claims the social worker failed to take into consideration the fact that by the time the social worker observed visits, the children had been out of her care for two years and were accustomed to visiting her and then returning to the foster home.

A. Applicable Legal Principles

Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the parent is required to show that terminating parental rights would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just 'frequent and loving contact' to establish the requisite benefit for [the] exception."

In reviewing whether there is sufficient evidence to support the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

B. Application

Substantial evidence supports the court's finding the mother did not meet either requirement of the statute to show the beneficial parent-child relationship exception. From the time the children were removed in September 2006 until May 2008, the mother missed 30 percent of scheduled visits. After that time she continued to miss visits and to disappoint the children when she would promise to see them and then not follow through. She was offered reunification services, including participation in SARMS for 16 months, yet she did not successfully deal with her drug addiction. She tested positive for methamphetamine from time to time throughout the dependency period and refused residential drug treatment. She missed appointments with her psychiatrist and did not take her medication. Her therapist said she was unaware of the effects of her drug use on herself and her children. She and the children did not share beneficial parent-child bonds. The children's therapist said T.B.'s flat affect and L.H.'s lack of emotion when talking about the mother showed neither child had a strong attachment to her. The social worker opined the children needed the stability and permanency of an adoptive home and would benefit more from adoption than from maintaining a relationship with the mother. Substantial evidence supports the court's finding the mother did not have a relationship with the children that was sufficiently beneficial to outweigh the benefits to them of being adopted into a stable home.

DISPOSITION

The judgments are affirmed.

WE CONCUR: McCONNELL, P. J., BENKE, J.


Summaries of

In re T.B.

California Court of Appeals, Fourth District, First Division
Apr 14, 2009
No. D053992 (Cal. Ct. App. Apr. 14, 2009)
Case details for

In re T.B.

Case Details

Full title:In re T.B. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO…

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

Date published: Apr 14, 2009

Citations

No. D053992 (Cal. Ct. App. Apr. 14, 2009)