Opinion
F051688
5-16-2007
In re X. C., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CONSUELO G. Defendant and Appellant.
Mary R. Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Peter D. Moock, County Counsel, and Laura J. Bakker, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Cornell, J., and Kane, J.
Consuelo G. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, X. Appellant contends the court erred by rejecting her claim that termination would be detrimental to X. based on their parent/child relationship. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In July 2005, 18-month-old X., wearing only a soiled diaper, was found crawling on a public street, unsupervised. When it appeared he might crawl into traffic, a stranger picked him up and another person called the police. At the time, X. had multiple abrasions, scratches, and bug bites across his body. He was also extremely filthy; dirt was embedded in his skin and feces were caked on his buttocks. Once appellant and the childs father were located, the police arrested them on child endangerment charges. Respondent Kings County Human Services Agency (the agency) in turn detained X., along with his five older siblings, and initiated these dependency proceedings. Underlying the abject neglect X. and his siblings suffered was their parents drug abuse and the resulting chaos of their lifestyle. Notably, only a month before X. was born, the parents regained custody of the five older children, who had been juvenile court dependents for approximately two years as a result of the parents long-term drug abuse.
In August 2005, the Kings County Superior Court adjudged X. and his siblings dependent children of the court and removed them from parental custody. Due to the large size of the family, the siblings could not be placed together. As of October 2005, the agency placed X. in a separate foster home, where he has remained ever since.
As part of its August 2005 disposition, the court also ordered reunification services for each parent. Relevant to this appeal, the court-ordered service plan included weekly, one-hour supervised visitation.
Due to the parents incarceration, they saw each of their children in effect every other week. According to jailhouse visitation rules, only three children could visit a detainee each week. Thus, the children rotated their weekly visits with each parent in groups of three, with one group visiting one parent while the other group visiting the other parent. Overall, those visits were good. The parents remained in custody through September 2005.
Following their release, the parents were at best in partial compliance with their service plans. As to visitation with their children, they were "somewhat consistent." Apparently, the parents failed, on more than one occasion, to let their social worker know they would not be attending a visit. This led to disappointment and tears on the childrens part. As a result, the agency required the parents to call ahead on the day of their visits to reconfirm their attendance.
During visits in October and November 2005, appellant appeared to be distant with her children and interacted very little with them. She demonstrated very poor parenting skills in that she chose to observe and not participate. Sometime later, she showed a marked improvement in her interactions.
Initially, the agency treated X. as being part of a sibling group. As a result and despite the parents lack of compliance and progress in their service plans, the agency recommended in a February 2006 status review report that the court continue reunification efforts for the entire family. The childrens counsel however objected and requested a contested hearing.
The agency investigated the matter further and submitted an addendum report in late March 2006. In it, the agency recommended that because none of the older children were placed with X. and there was no likelihood that any of them would be placed with him, there was no basis for terminating services for the older children. However, in X.s case, despite the fact he was part of a sibling group, he had not formed an attachment to or bond with his older siblings. Consequently and given that he was under the age of three when he was detained, the agency recommended the court terminate reunification efforts as to X. and set a section 366.26 hearing in his case (setting order).
Following a contested, evidentiary hearing in early April 2006, the court adopted the agencys recommendations. Having issued its setting order, the court also reduced the parents visitation from once-a-week to once-a-month. Appellant last visited with X. the following month in May 2006.
In advance of the section 366.26 hearing, a social worker with the California Department of Social Services (CDSS) prepared a report for the court including a permanency planning assessment. The CDSS social worker, Jenny Young-Cortez, recommended the court find X. was likely to be adopted and order the termination of parental rights.
According to the CDSS assessment, X. was in good physical and developmental health. He appeared to be happy and thriving in his foster care placement. CDSS had identified the foster parents as X.s prospective adoptive parents in that they were committed to adopting him and he appeared to have a close, nurturing and loving attachment to them.
Relevant to this appeal, Young-Cortez reported on the history of contacts between X. and his family. She commenced by acknowledging that she had never observed any visits between X. and appellant, his father or his siblings. However, she had access to the agencys case record narratives regarding the familys supervised visits as well as its court reports. In addition, she had discussions with the current agency social worker who was assigned to X.s case after the setting order. Young-Cortez summarized the narratives, case reports and her discussions with the current agency social worker in her report.
Apparently, most of the narratives until April 2006 contained few specific references to X.s interaction with either of his parents. The narratives were of the entire familys visits. Those that did specifically mention X. and his parents described pleasant experiences. A December 2005 narrative stated X. asked for his father when he arrived and did not appear interested in being with appellant. A January 2006 narrative characterized appellant and X. as having a "very good time drawing and writing on the chalkboard." A narrative from the following month stated the mother helped X. during a family game.
After the setting order, two visits were scheduled for April 2006. Appellant did not show up for the first visit and was so late to the second visit that X. had already gone home. At an early May visit, appellant appeared distant towards and overwhelmed by the children. The agency scheduled a second visit in May at which appellant wished to hold X. but he wanted to run around and play.
Young-Cortez also recited the current agency social workers summary of the contacts he had witnessed between X. and his parents. Their interactions were appropriate. Appellant always told X. she loved him and the two would run to each other at the start of visits. She appeared more excited to see X. At the end of their visits, X. did not cry. Instead, he would go easily to his prospective adoptive mother whom he was very happy to see. X. appeared more excited to see his prospective adoptive mother than he was to see appellant. By contrast, she was very sad when she separated from X. at the end of their visits.
At the section 366.26 hearing conducted in late September 2006, each of the parents testified, along with CDSS social worker Young-Cortez. Young-Cortez, called by appellants trial attorney, was the first to testify. When asked to characterize the relationship between appellant and X. based on all she had learned, Young-Cortez replied "It seems like he is familiar with her." When asked whether X. had a parent/child relationship with appellant, she replied "I read the narratives, and it seems that he had a stronger relationship with his care providers." With regards to the prospective adoptive parents, Young-Cortez was queried about whether she had discussed with them the possibility of being X.s guardians. She replied that although she did discuss it with them, they did not want to consider being his guardians. They wanted to adopt him.
Appellant testified next and described her one-hour visits with X. She described X. as very happy and playful. He was comfortable with her and called her "Mom." He also understood and knew who his mother is. When visits were over, X. "looked a little sad" to her. She thought they shared a mother and child bond but acknowledged "maybe I am more attached to him than he is to me." During visits which the older children, also attended between February and June, appellant testified X. just wanted to be left to play with his siblings. She also did not believe X. should be freed for adoption. When asked if that was because she thought it would be better for the child not to be adopted, she replied: "No. I just feel I should be given a chance."
On cross-examination, appellant acknowledged her visits with X. throughout the case were supervised. She also did not remember if she gave X. a gift for his birthday, nor did she know what his favorite toy, TV show, or cartoon was.
Last, the father took the stand. He claimed he had a father/child relationship with X. as well as his belief he could give X. love and attention that no one else could. He also wanted X. to be united with his family, rather than adopted.
Following closing arguments, the court found X. adoptable and terminated parental rights. In response to the parents arguments that it should not terminate their rights based on their parent-child relationships, the court found X. would not be harmed or injured by termination. While there were some benefits to the relationship, X. had the same kind of benefit from many relationships, not just with his parents.
DISCUSSION
Appellant contends the court erred when it declined to find termination would be detrimental to X.s best interests. She claims she was entitled to such a finding because she presented evidence that she had maintained regular visitation and contact with her son and the child would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(A)).
Once reunification services are ordered terminated, the focus shifts to the dependent childs needs for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental according to one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we conclude there was no abuse of discretion.
To begin, we will assume for the sake of appellants argument under section 366.26, subdivision (c)(1)(A), that she maintained regular visitation and contact with X. throughout his dependency. Nevertheless, other than from appellants own testimony that she shared a mother and child bond with X., there was no evidence that such a relationship even existed. The significant attachment of child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Such a relationship characteristically arises from day-to-day interaction, companionship and shared experiences. (Ibid.)
X. had lived in appellants home for the first 18 months of his life. However, appellants attention to X.s needs during those months was doubtful given the neglect the infant suffered. Thereafter, based on that profound neglect and appellants subsequent failure to address her underlying problems, appellant had very restricted contact with X. Over the following year, she received first weekly and later monthly one-hour supervised visits with X., as well as her five older children. The fact that X. appeared to recognize appellant as "Mom" and interacted with her during those relatively few occasions did not necessarily establish a significant attachment.
Further, the fact that X. seemed to enjoy his visits with his family did not compel the juvenile court to find that termination would be detrimental to X. As explained in In Beatrice M. (1994) 29 Cal. App. 4th 1411, 1420, the childs relationship must transcend the kind of relationship the child would enjoy with another relative or family friend. Here there was conflicting evidence on this issue.
Finally,
"[t]he exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: `balance[] 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. (Id. at p. 575.)" (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)
Here, no such evidence was introduced. There was neither proof of some benefit X. would receive if rights were not terminated nor evidence of any harm if rights were terminated. Indeed, when asked, even taking into account the mothers evidence of her claimed relationship with X., there was no proof of such a substantial, positive emotional attachment between them such that X. would be greatly harmed by adoption. When asked by her own attorney, whether she believed it would be better for the child not to be adopted, appellant candidly replied: "No. I just feel I should be given a chance."
On the other hand, there was evidence X.s need for stability and permanence would be jeopardized if the court did not terminate parental rights. As previously noted, X. shared a warm, nurturing and loving relationship with his prospective adoptive parents. If the court had not freed him for adoption, he would have lost that relationship given the prospective adoptive parents interest only in providing him a permanent home through adoption.
Under all of these circumstances, we conclude the trial court properly determined there was no compelling reason for finding termination would be detrimental to X. (In re Celine R., supra, 31 Cal.4th at p. 53.)
DISPOSITION
The order terminating parental rights is affirmed.