Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK73642, Terry Truong, Juvenile Court Referee.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant April C. appeals from an order terminating her parental rights with respect to T.B., made pursuant to Welfare and Institutions Code section 366.26. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
April C. (Mother) and her 10-month old daughter, T.B., were brought to the attention of the Department of Children and Family Services (DCFS) on June 26, 2008, by a referral caller who alleged that T.B. was a victim of general neglect and emotional abuse by Mother. The caller also stated that Mother had some mental health issues and was supposed to be on medication.
Later that day, a children’s social worker (CSW) interviewed R.P., who was T.B.’s maternal step-grandmother. R.P. reported Mother had been admitted to a hospital on June 17 due to a psychiatric emergency and was prescribed psychotropic medications, which she had not been taking. R.P. further reported Mother began showing bizarre behavior, such as putting cooking oil on T.B.’s skin, putting canned peas in a bottle and making the hole larger to allow the baby to eat the peas, and putting bleach on the baby’s stomach to treat a rash. T.B. was with R.P., and the CSW assessed her. The CSW found a light spot on the baby’s stomach. The CSW also found a discoloration on the baby’s private area.
The CSW later learned from the maternal grandfather, A.R., and R.P. that Mother had previously been and, on July 1, 2008, was again, hospitalized for psychiatric evaluation and treatment; she had previously been prescribed related medication but refused to take it. A CSW confirmed Mother’s current hospitalization. After her release, Mother met with another CSW and reported she had been hospitalized for a week on the “barrier” side, where the people were really sick. Mother stated she was not sure why she was hospitalized. She said that the maternal grandfather had dropped her off there and she was released at first, but the police picked her up and raped her and took her back to the hospital. At a Family Team Decision Making (TDM) meeting on July 10, Mother provided DCFS with a copy of her hospitalization discharge summary, from which DCFS learned she had been diagnosed with schizoaffective disorder. Mother reported that she had her first episode of waking up in a mental hospital in December 2007 and was unable to remember what she was doing prior to hospitalization. At the close of the TDM meeting, DCFS detained T.B. and placed her in foster care with a foster mother, Ms. C.
During the pre-detention investigation, CSWs learned that Mother had recently moved with T.B. to Los Angeles from Georgia after losing her job and her home there. She was married to, but legally separated from, the father of her three older children, who reportedly were living with their father in Georgia. Mother said that T.B.’s father was J.B., and his whereabouts in Georgia were unknown.
On September 5, 2008, the court found that J.B. was T.B.’s alleged father. He is not a party to this appeal. Also, this appeal pertains only to T.B., and not to Mother’s three older children.
DCFS filed a section 300 petition on July 15, 2008. The petition alleged T.B. had suffered or was at substantial risk of suffering serious physical harm or illness as a result of Mother’s failure or inability to supervise or protect the child adequately and by Mother’s failure to provide the child with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b).) The specific allegations were that Mother had mental and emotional problems, but had not always taken her psychotropic medications, and due to her limitations, Mother was unable to provide regular care for T.B., placing her at risk of harm. The juvenile court ordered T.B. detained in shelter care but gave DCFS discretion to place the child with any appropriate relative or extended family member, and also discretion to release the child to Mother. The court granted Mother monitored visits.
This summary of the allegations is based upon the petition as amended by agreement of the parties in August 2008. The allegations in the petition as originally filed were slightly different.
According to the August 13, 2008 DCFS jurisdiction/disposition report, Mother said that she was experiencing rough times in Georgia and moved to Los Angeles at the encouragement of her father, A.R. A few months after she arrived in Los Angeles, her father drove her to a hospital for evaluation and she was discharged on June 17. She said that “[t]hey tried to put me on 5 different medications and were trying to say that I was schizoaffective and bipolar.” She was prescribed Seroquel but did not take it after she was discharged. Mother maintained that she had no mental or emotional problems.
At the jurisdiction/disposition hearing, the juvenile court acted in accordance with an agreement between Mother and DCFS to amend the section 300 petition and sustain the petition as amended. The court declared T.B. a dependent child of the court under section 300, subdivision (b), ordered her removed from Mother’s custody, and granted Mother visitation to be monitored by a DCFS approved monitor. The court ordered DCFS to provide family reunification services to Mother. The court ordered Mother to participate in individual and psychiatric counseling and parenting education, as well as to take all prescribed psychotropic medications.
As to J.B., the jurisdiction and disposition hearing and also subsequent proceedings were continued due to the necessity of completing a due diligence investigation to attempt to ascertain his location, in order to serve him and then to complete service on him by publication. As a result, dependency proceedings with respect to Mother extended for more than 18 months.
In its February 13, 2009 status review report for the six-month status review hearing, DCFS reported T.B. remained with Ms. C., and a completed adoption assessment had determined that T.B. was adoptable. Mother was participating in visitation, which was usually monitored by Ms. C. and held at DCFS offices. A CSW who was also present at some visits observed that T.B. would squirm in Mother’s care, but Mother often continued to hold her the entire visit. Mother appeared to be upset by T.B.’s struggle to get down and play, and interaction between Mother and T.B. appeared to be strained. T.B. appeared more comfortable with strangers than with Mother and also would cry when Ms. C. would leave the visiting room. On one visit, however, T.B. went willingly into Mother’s arms and Mother allowed her to get down and play on the floor.
Mother was in partial compliance with her case plan. She had completed 13 of 20 parenting education sessions. She was seen in July 2008 at a Department of Mental Health (DMH) clinic for an intake session, where she was prescribed Zoloft and given a follow-up appointment for August. She did not return to the clinic. Mother provided no information indicating she was participating in individual counseling. A CSW reported Mother randomly telephoned and cursed about how having her baby in the system was keeping her from her acting, modeling and singing career.
At the February 13, 2009 hearing, the juvenile court extended reunification services, finding that Mother had regularly visited T.B. and had made progress in resolving the problems that led to the child’s removal from her custody. The court ordered continuation of monitored visitation for no less than four hours per week.
In its August 13, 2009 report for the twelve-month review hearing, DCFS reported that the CSW observed Mother’s behavior was erratic during her visit with T.B. She often talked in a foreign language such as French or Spanish and would laugh out loud although nothing had been said. As a result, T.B. often appeared confused and went to sit on the foster mother’s lap for comfort. The CSW reported that Mother would bring arts and crafts projects to do with T.B. during visits. If Mother did not like what T.B. had painted, she would show the object to the CSW or the foster mother and say, “Which one is better? I was an arts and crafts teacher in Georgia, and I know what I’m doing.”
In addition, DCFS reported that Mother continued to be in partial compliance with her case plan. She completed a parenting course. She returned to the DMH clinic, where she was receiving individual counseling and was going to be referred to a psychiatrist. Mother still had not had a psychiatric evaluation and was noncompliant with regard to her medication. Mother continued to state that she did not have a psychiatric problem. She also said that she was in charge of psychiatric patients, she knew when people needed medication and she was not one of them. Mother had been employed as a telemarketer but was terminated for unknown reasons. She did not have stable housing and was residing with A.R. and R.P., but her behavior continued to cause chaos in the home.
At the August 13, 2009 hearing, the juvenile court ordered continuation of reunification services and found that Mother had consistently and regularly contacted and visited with T.B., had made significant progress in resolving the problems leading to T.B.’s detention, and had demonstrated the ability to complete the objectives of her case plan. The court ordered that a CSW meet with Mother and provide her in writing with what was necessary for Mother to be in compliance with her case plan.
For the January 15, 2010 18-month status review hearing, DCFS notified the court that the adoption home study for Ms. C. had been approved in December 2009. DCFS also reported that Mother continued regularly with her monitored visits with T.B. The foster mother, Ms. C., reported that Mother interacted appropriately with the child. In a December 2009 visit, a CSW was also present and suggested that Ms. C. leave the room so that the CSW could observe Mother visiting with T.B. without Ms. C. in the room. T.B. started screaming and crying when Ms. C. left the room, hanging onto her body to try to leave with her, and then yelling out for her repeatedly, referring to her as “mommy.” The CSW attempted to console T.B., showing her that she could see Ms. C. through the window, but T.B. continued crying and hyperventilating. Mother did not move to try to console T.B. until the CSW encouraged her to do so, and then Mother asked the CSW to allow Ms. C. to stay in the room, in that Mother did not like it when the child cried. On another visit, the CSW observed T.B. playing and dancing with Mother and appearing to be enjoying the visit. In general with respect to visits, the CSW had observed and Ms. C. had reported that Mother did not seem completely comfortable being with T.B. alone, and Mother had asked if Ms. C. would be willing to care for T.B. while “I get on my feet, get a place to stay and a job.”
As to Mother’s compliance with her case plan, DCFS chronicled several efforts from 2008 through 2009 by mental health professionals to provide medications to Mother, and Mother’s repeated refusal to comply with medication recommendations. In addition, Mother had seen a number of mental health therapists but had been sporadic in attending therapy appointments. DCFS confirmed that Mother received a psychiatric assessment in 2008, was diagnosed with bipolar disorder and schizoaffective disorder, and was prescribed a one-month supply of Zoloft, but she refused the doctor’s efforts to prescribe additional medication. Such information obtained by DCFS was not consistent with Mother’s claims that some doctors had told her that she did not need medication and she would not comply with medication regimens. DCFS confirmed Mother had completed parenting education as ordered in her plan.
DCFS further reported that Mother stated she was continuing to attend school for hypnotherapy and had been on job interviews but was not yet employed. Mother also said that she thought she would not be welcome in A.R.’s home for much longer.
At the January 15, 2010 hearing, the juvenile court set the matter for a section 366.22 contested hearing on March 3. The court requested DCFS to prepare a supplemental report on Mother’s compliance with her case plan.
The supplemental report for the March 3 hearing included a letter from a new individual therapist which stated that Mother had attended six sessions since she began therapy on February 8, 2010. The CSW reported inconsistencies in Mother’s recent statements about having an apartment and having a monthly income of $900 from her employment for the past year and a half with a talent scouting agency. Mother had frequently cited money as an issue affecting her ability to care for T.B. if she were returned to Mother’s custody. Mother also had said that she continued to attend school for hypnotherapy.
At the March 3 hearing, the juvenile court found Mother in partial compliance with the case plan, ruled that a permanent plan for T.B. to live with Ms. C. was appropriate and so ordered. It terminated Mother’s reunification services and set the matter for a section 366.26 permanency planning hearing in July 2010.
For the hearing, DCFS reported that from observation of some of Mother’s visits with T.B., the visitation was beneficial, appropriate and should be continued. T.B. called Mother “mommy, ” as well as Ms. C. The CSW observed two visits in which the CSW asked Ms. C. to leave the room so that the CSW could observe the interaction only between Mother and T.B. The first visit was described in a previous DCFS report. The second occasion occurred more recently. T.B. was playing nicely with Mother and did not appear to notice when Ms. C. slipped out of the room. When the child noticed, however, she asked where “mommy” went and looked somewhat worried as she kept moving her head side to side to look out of the visiting room window and then at the door. She did not react hysterically, however.
As to Mother’s compliance with her case plan, there appeared to be no significant changes; Mother had not complied any further with the plan. The CSW believed that Mother did not appear motivated to reunify with T.B. at that time. Ms. C. continued to provide good care for T.B. The child had a clear, seemingly healthy attachment to Ms. C. and was well adjusted to her placement. Ms. C. had affirmed that she loved T.B. and was happily awaiting the finalization of her adoption of T.B.
The juvenile court continued the section 366.26 hearing in order to complete due diligence in attempting to locate and serve T.B.’s father. In its August 26, 2010 status review report, DCFS reported there had been no significant changes and Mother had still not fully complied with her case plan with respect to the orders to complete individual counseling, comply with a psychiatric evaluation, and comply with medication as prescribed. At a hearing on October 7, 2010, the court set the matter for a contested hearing on November 24, 2010 with regard to termination of Mother’s parental rights pursuant to section 366.26.
By the time for the November 24 contested hearing, Mother had also filed a section 388 petition. In support of her petition, Mother submitted a report from her counselor for her individual counseling program. The counselor reported that Mother’s attendance had been sporadic and she had not attended therapy sessions after March 8, 2010 until the date of the letter, November 23, 2010. A discharge report dated August 19, 2010, from a mental health urgent care center, indicated Mother had been prescribed medications but did not have them, and her mental status exam showed abnormal results as to mood, affect, thought content, thought process, judgment, impulse control and other factors. As to symptoms and behavior of Mother, the report indicated “confused, ” “mistrustful, ” “inappropriate anger, ” “inability to maintain a job, ” and “non-compliance with prescribed medication.” After argument regarding whether the juvenile court should grant a hearing on the petition, the court found no changed circumstances and denied a hearing on the petition.
The court proceeded with the section 366.26 hearing. Mother alleged that her parental rights should not be terminated, in that the beneficial parent-child relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) She testified that she had consistently visited with T.B. for two hours every Wednesday and Friday since T.B.’s detention in 2008. The visits were monitored and occurred primarily at DCFS offices. Mother said that she usually brought new things, such as educational toys, to T.B. and, during the visits, she read to T.B., played games with her, wrote and colored with her and sometimes she would bring food to eat with T.B. She stated that T.B. called both her and Ms. C. “mother.” Mother testified she earned income as a certified hypnotist, having completed her college training in the field during the course of the dependency proceedings. She also said she made wigs, which were available upon order. Her father had arranged a place for her to live, and she was living in a studio apartment large enough to house herself and T.B.
When asked, Mother testified that she remembered the visit where T.B. started screaming and crying for Ms. C. when she left the room. Mother explained, “She sees this lady every day. This lady changes her, cleans her, and provides for her. She don’t see me every day. The bond that we had before she was taken is something totally different.” Mother acknowledged that Ms. C. had to come back to comfort T.B.
Counsel then asked Mother if she agreed Ms. C. provided good care for T.B. Mother responded, “I’m gonna say ‘yes, ’ and I’m gonna say ‘no.’” When asked to explain what was good about the care, Mother began to ramble about irrelevant matters. Counsel and the court attempted to help her get back on the point of what was positive about the care. Eventually, Mother answered, “Oh. Well, yeah.... I guess, because I’m a younger mother and [Ms. C.]’s—you know, I’m younger. So I’m more, you know, classier and hipper and stuff like that.”
After argument, the juvenile court ordered that Mother’s parental rights were terminated. Before doing so, the court found by clear and convincing evidence that T.B. was adoptable. The court ruled that Mother failed to meet her burden to establish a beneficial parent-child relationship exception to adoption that would constitute a compelling reason for finding that termination of Mother’s parental rights would be detrimental to T.B. The court recognized that Mother had visited T.B. on a relatively consistent basis but cited information from various DCFS reports which raised questions about the quality of the visits and the closeness of the relationship between Mother and T.B. The court stated, “I cannot find that the contact between [T.B.] and [Mother] rises to the level where I can find that there is a compelling reason for determining that terminating her parental rights... would be detrimental to [T.B.] I do not find that the child would benefit from the continued relationship with her mother at this time.”
DISCUSSION
Mother contends that the juvenile court committed reversible error in ruling that the beneficial parent-child relationship exception did not apply. Section 366.26, subdivision (c)(1), provides that if a juvenile court finds that it is likely a child will be adopted, the court must terminate parental rights and order the child placed for adoption unless one of the specified exceptions applies. To establish the beneficial parent-child relationship exception, Mother had the burden to prove two things: (1) She had “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, ” and (2) the nature of their relationship was such that it constituted “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B)(i); see In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [parent has burden of proving an exception].)
Section 366.26, subdivision (c)(1), provides: “If the court determines, based on... relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.... Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) 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: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
The legislative intent expressed in section 366.26, subdivision (c), is that “adoption should be ordered unless exceptional circumstances exist, [and pursuant to subdivision (c)(1)(B)(i), ] one of those exceptional circumstances [is] the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Thus, as another appellate court explained, “[i]n 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 parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) However, “[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Mother does not dispute the juvenile court’s finding that T.B. was likely to be adopted. Additionally, it is undisputed that Mother had maintained regular visitation and contact with T.B. The issue then is whether the juvenile court erred in ruling that Mother failed to establish that she had a parental relationship with T.B. that constituted “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B)(i).)
On appeal, if we determine that the juvenile court’s finding that the exception did not apply is supported by substantial evidence, we must affirm the finding. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Under the substantial evidence standard of review, “we must accept the evidence most favorable to the [finding] as true.” (In re Casey D., supra, 70 Cal.App.4th at p. 53.)
Most appellate courts, including this court, apply the substantial evidence standard of review when reviewing a juvenile court’s ruling on an exception. (In re Naomi P. (2005) 132 Cal.App.4th 808, 824; see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)We note, however, that the First Appellate District has adopted an abuse of discretion standard in at least one case. (Jasmine D., supra, at p. 1351.)
In this case, there is substantial evidence in the record to support the juvenile court’s finding that the beneficial parent-child relationship exception did not apply. In support of its finding, the court cited considerable evidence about the strength of T.B.’s relationships with Mother and other persons during Mother’s visits with T.B. As the court noted, the February 13, 2009 DCFS report indicated that, during visits, T.B. would squirm in Mother’s care, Mother appeared to be upset by the behavior, and interaction between Mother and the child appeared to be strained. The August 13, 2009 DCFS report stated that the CSW observed Mother’s behavior was erratic during a visit with T.B. She often talked in a foreign language and would laugh out loud although nothing had been said. T.B. often appeared confused and went to sit on Ms. C.’s lap for comfort. When Mother would bring arts and crafts projects to do with T.B. during visits, she acted as though she was in competition with T.B. as to who could do the better project. T.B. initially became hysterical when Ms. C. left the room during visitation. Later, she merely became anxious and asked where “mommy” was.
We note that, in her testimony at the contested hearing, Mother acknowledged that Ms. C.’s relationship with T.B. was different from hers, and Ms. C. filled the parental role in T.B.’s life. Mother said that T. B. “sees this lady [Ms. C.] every day. This lady changes her, cleans her, and provides for her. She don’t see me every day. The bond that we had before she was taken is something totally different.”
It has been acknowledged that “[i]nteraction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.]... The [beneficial parent-child relationship] exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) The evidence did not support a finding that Mother’s visits had “continued... a positive, emotional attachment from child to parent.” Although Mother previously had a parental relationship with T.B., it was in the first 10 months of T.B.’s life. At the time of the juvenile court’s ruling, T.B. was three years old and had been cared for by Ms. C. continuously since she was 10 months old.
Neither did the evidence support a finding that T.B. “developed a significant, positive, emotional attachment” to his Mother. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The relationship required under the beneficial parent-child relationship exception is “a continuing parental relationship; not one... when a parent has frequent contact with but does not stand in a parental role to the child.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
Substantial evidence, therefore, supports a finding that Mother’s relationship with T.B. did not “promote[] 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 [Ms. C. as her] adoptive parent[].” (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) We conclude that substantial evidence supports the juvenile court’s finding that Mother failed to establish that the beneficial parent-child relationship exception applied. Accordingly, we must affirm the court’s order terminating Mother’s parental rights. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
DISPOSITION
The order is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.