Opinion
B231119
01-24-2012
In re G.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, G.B. et al., Appellants and Minors, v. F.B. et al., Defendants and Respondents.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Appellants and Minors. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Appellant Los Angeles County Department of Children and Family Services. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Respondent F.B. Roni Keller, under appointment by the Court of Appeal, for Defendant and Respondent C.N.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .
(Los Angeles County Super. Ct. No. CK75805)
APPEAL from a judgment of the Superior Court of Los Angeles County. Donna Levin, Juvenile Court Referee. Reversed.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Appellants and Minors.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Appellant Los Angeles County Department of Children and Family Services.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Respondent F.B.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Respondent C.N.
The Department of Children and Family Services ("DCFS") appeals the permanent plans ordered by the juvenile court with respect to minors G.B. (born December 22, 1999), H.B. (born May 2001), C.N. (born February 2005) and P.B. (born August 2008); counsel for the minor children join in the appeal. We find no substantial evidence for the juvenile court's finding that the so-called benefit-from-continuing-the-relationship exception found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) precluded the children's adoption by their foster parents. Accordingly, we reverse the permanent plans ordered by the juvenile court.
FACTUAL AND PROCEDURAL SUMMARY
A Welfare and Institutions Code section 300 petition was filed with respect to these four minor children on January 2, 2009. The oldest child, G.B., had hydrocephalus, was developmentally delayed, and was possibly autistic. The second child, H.B., was autistic and had cerebral palsy, was non-verbal and non-ambulatory. The third child, C.N., also autistic, did not speak or appear to understand when spoken to. The youngest child, P.B., was four months old at the time the section 300 petition was filed.
Further statutory references are to this code.
At the time of initial contact with the DCFS in December 2008, father had been recently released from custody in Nevada and faced pending criminal charges for failure to register as a sex offender, forgery, burglary and theft. Mother, a suspected drug addict, was living with the children in the home of the paternal grandmother, who expressed concern for the children's health and welfare. The children were not attending school, and appeared to require medical attention. The children were detained by the emergency response social worker, which detention the juvenile court later sanctioned. Shortly thereafter, the two younger children were hospitalized for respiratory ailments.
An amended petition was sustained in April 2009, based on the following allegations: H.B. had been medically neglected; mother had a history of illicit drug use and had used marijuana while pregnant with P.B.; the parents had left the minors in the paternal grandmother's custody without information as to their special needs, including H.B.'s need for an appropriate apparatus to enable her to walk; and the parents had failed to enroll the minors in school and to attend to their educational needs. Reunification services, including monitored visits, were ordered.
In its October 29, 2009 report for the six-month review hearing, DCFS reported that the minors were placed in two prospective adoptive homes: the boys (G.B. and P.B.) were placed in one home and the girls (H.B. and C.N.) in the other. All of the children were doing well in their respective foster homes. The girls had established a loving relationship with their foster mother, who was described as patient, supportive, and consistent. G.B. was enrolled in school, where his scholastic skills improved considerably. He did, however, miss his parents, and wanted to live with them. The prospective adoptive mothers were sisters, making frequent contact between all of the siblings possible. The parents lived together in a homeless shelter and were unemployed. They visited the children sporadically, and made minimal progress in their case plans. At the continued six-month review hearing, the court found that the parents had only partially complied with the case plan, but that there was a substantial probability that the children would be returned home within the next review period; family reunification services were continued.
The court convened on March 30, 2010 for the 12-month review hearing. DCFS reported that mother had failed to enroll in an after-care drug-treatment program and had missed a drug test, and that the parents had failed to attend the children's medical appointments, and had missed four sessions of a 20-week parenting class. The children continued to thrive in their foster placements. G.B. received occupational therapy and was showing signs of Attention Deficit Disorder and mild mental retardation. He continued to miss his parents. H.B. had highly specialized needs. C.N. was diagnosed with seizures, chronic lung disease, and developmental delays. The baby, P.B., also appeared to have developmental delays for which he was being assessed.
In an updated report submitted in June 2010, DCFS stated that the parents' progress remained minimal. Father had been diagnosed with Schizoaffective Disorder. The parents remained homeless with no financial means. They attended their scheduled Sunday visits with the children, but regularly missed their Monday and Friday visits. Both parents completed the regular parenting course, but had not yet enrolled in classes for parents of children with special needs. Despite this less-than-stellar report, the court granted father unsupervised visits with the children for three hours per week, but prohibited mother from being present during those visits.
At a combined 12/18-month review hearing on August 31, 2010, the juvenile court terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan. The court permitted mother to visit monthly on a monitored basis. Because father appeared to have trouble caring for all four children concurrently, the court ordered unmonitored visits for father twice per month with two children at a time.
In its December 21, 2010 report, DCFS reported that the minors remained placed in two separate prospective adoptive homes, and that the foster parents were committed to adopting the minors. The prospective adoptive mother of the minor girls, a registered nurse, had fostered many children during the preceding 20 years; she also raised to adulthood two biological children and two former foster children whom she had adopted. The prospective adoptive parents of the minor boys also had substantial fostering experience, having fostered eight children over the previous 10 years. They also had an adult son. DCFS reported that the parents' visits during the previous three months had been sporadic.
On December 21, 2010, the juvenile court set the matter for a contested section 366.26 hearing on February 14, 2011. The court authorized father to procure a bonding study, and ordered him to file the resulting report with the court by February 4, 2011.
On February 3, 2011, the parents filed section 388 petitions, which the court ordered to be heard on February 14, 2011, prior to the contested permanent plan hearing. In the report prepared for the latter hearing, the DCFS reported that the minors appeared to be comfortable and bonded with both mother and father. Mother was busy during visits meeting the minors' needs. The parents fed the children; mother took the children to the restroom and changed P.B.'s diapers. G.B. (the only child who could speak) stated that he enjoyed the visits with his parents. The social worker observed that both parents had a loving bond with the minors.
The DCFS report stated that father continued to hope that his family would reunify, although he acknowledged that he did not have and could not obtain suitable housing for the family, and had no expectation that the housing situation would change in the future. After detailing the significant special needs of these children, the report states: "These concerns would be a great challenge for a family with appropriate housing, a strong support group, a wealth of resources, good income and knowledgeable parents/caregivers with a firm grasp of the medical concerns for the children. Unfortunately, that does not appear to be the case with mother [N.] and father [B.]. . . .
. . . Under the current situation, it is this writer's assessment that returning the children home to their parents would be detrimental to their well-being and would cause an unnecessary safety risk to children that are being appropriately cared for by the current prospective adoptive caregivers." The DCFS recommended termination of parental rights.
At the February 14, 2011 hearing, father called the social worker as a witness in connection with his section 388 petition. The social worker, who had been working with the family for a year and a half, testified that mother appeared to be sober, appeared to be more engaged with the children than she had been earlier in the dependency, and that there was a bond between mother and the children. The social worker also testified that father had fully completed his case plan, had taken an interest in the children's medical care and accompanied them to medical appointments, and had consistently availed himself of the three hours per week of unmonitored visits which the juvenile court had allowed him. The social worker confirmed that the foster parents reported that there were no issues regarding these visits.
In argument on the section 388 petitions, the children's counsel reported that G.B. indicated his desire to return home to be with his parents, and remarked that "I don't think anyone in this courtroom doubts, you know, the love between these children and the parents . . . ."
The juvenile court denied both section 388 petitions. The court then took evidence with respect to the permanent plan. At the hearing, G.B. testified that he enjoyed his visits with his parents, when they would talk and spend time together. He liked his mother's hugs. She would ask him how he was doing and share things with him. G.B. wanted to continue spending time with his parents. G.B. also testified that he missed his parents when he did not see them. He also missed his siblings, whom he loved and wanted to live with. G.B. said he wanted to live with his mother, that he would be sad if he could not see her again, and that he would shed a lot of tears. G.B. also stated that he wanted to live with his father and would be sad if he could not.
Father did not obtain a bonding study, and so there was no expert evidence concerning the strength of the parent/child bond or the likely effect on the minors of termination of the parent/child relationship.
After hearing G.B.'s testimony, the juvenile court stated: "I think it's very clear here from listening to what [G.B.] had to say, and even reading the report from the worker, about the loving bond that the parents do have with the children, that it would be detrimental to terminate parental rights. I won't do it at this time."
DCFS and the minors' counsel timely appealed, maintaining that the finding of detriment was not supported by substantial evidence.
DISCUSSION
It is undisputed that, absent the court's finding here under review, respondents' parental rights would have been terminated at the section 366.26 hearing, and the children would have been adopted by their foster parents. Thus, the sole question for this court is whether the evidence presented below establishes an exception to adoption under section 366.26, subdivision (c)(1)(B). Our review of that finding requires that we examine the whole record in the light most favorable to the findings and conclusions of the juvenile court to determine whether there is substantial evidence, contradicted or uncontradicted, that supports the juvenile court's order, resolving all conflicts in support of that determination and indulging all legitimate inferences to uphold the lower court's ruling. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
Section 366.26, subdivision (c)(1)(B)(i) permits a court to forego adoption in favor of a less permanent plan where the parent "ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The nature of the parent/child relationship, and the extent of the benefit to the child, sufficient to invoke this exception has been repeatedly addressed by the appellate courts during the past decade or more, and thus we begin with an analysis of those cases.
In re Autumn H. (1994) 27 Cal.App.4th 567 was the first appellate opinion to interpret the benefit-from-continuing-the-relationship exception to termination of parental rights. The court first noted the legislative directive that, when parents fail to reunify with their children, adoption is the preferred permanent plan. (Id. at p. 573.) "Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child's best interests are other, less permanent plans, such as guardianship or long-term foster care considered." (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Said the court: "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 parent's rights are not terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The Autumn H. court went on to observe 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, . . . [and] arises from day-to-day interaction, companionship and shared experiences." (Id. at p. 575, internal citation omitted.) In addition, the court noted that "[t]he exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. 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 parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (Id. at p. 576.)
In re Beatrice M. (1994) 29 Cal.App.4th 1411 also addressed the "benefit from continuing the relationship" exception of section 366.26. Agreeing with In re Autumn H., supra, the court rejected the notion that evidence of regular visits and a beneficial, bonded relationship ("frequent and loving contact" in "a loving and happy relationship," in the words of the court) is sufficient to establish the exception to adoption. Rather, the court stated that the parent/child relationship "must be sufficiently strong that the child would suffer detriment from its termination." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Moreover, "[t]o overcome the statutory preference for adoption, the parent must prove that he or she occupies a parental role in the child's life resulting in a significant, positive emotional attachment of the child to the parent." (In re B.D. (2008) 159 Cal.App.4th 1218, 1234; In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
The evidence presented at the section 366.26 hearing, consisting of the DCFS reports and G.B.'s testimony, establishes that the children and their parents shared a warm and loving bond. Indeed, in arguments to the court, the minors' counsel stated: "I don't think anyone in this courtroom doubts, you know, the love between these children and the parents . . . ." If a loving bond were sufficient to satisfy the benefits exception to termination of parental rights, then this record would amply support the juvenile's court determination. As the case law provides, however, the benefits exception applies only if the juvenile court finds that termination of parental rights would be detrimental to the children. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1417.) The evidence in this case simply does not support such a finding.
There was no evidence of any detriment at all with respect to the three youngest children. To the contrary, the two girls, H.B. and C.N., were thriving in their foster home, with no reports of any ill-effects from being separated from their parents. And P.B., who was only four months old when he was detained, had spent the majority of his life in the care of his foster family. Indeed, in arguments to the court, father's counsel relied on G.B.'s testimony to argue that all of the children would benefit from continuing the relationship, without pointing to evidence of any particular benefit to anyone other than G.B.
G.B. is the only minor able to verbally communicate his thoughts and feelings. At 11 years of age, he had been cared for by his parents for a substantial portion of his life; clearly, termination of parental rights would have the most significant effect on him. And indeed, G.B. testified that he loves his parents, would miss them, and would feel sad if he did not see them again. However, experiencing sadness does not equate to suffering detriment. We do not wish to underestimate the emotional toll termination of the parent/child relationship may have on G.B. We cannot, however, ignore the fact that the record is devoid of any evidence that G.B. will be traumatized by the termination of his relationship with his parents.
In this respect, the evidence here contrasts sharply with that presented in In re Scott B. (2010) 188 Cal.App.4th 452. That case, too, concerned a child with special needs who was raised by his mother for his first 9 years, and was 11 at the time of the section 366.26 hearing. Scott was diagnosed with ADHD and autism, and had behavioral problems. Mother and child had "a very close relationship but Mother was overwhelmed with the child's special needs and was not able to provide him with the type of care and supervision he require[d]." (Id. at p. 456.) After several unsuccessful placements, Scott adjusted well in his foster home and enjoyed his foster family, although he wanted to live with his mother, whom he missed. The foster parents were able to provide the support and guidance which his mother could not.
Scott "made it clear that he did not want to be adopted and if the adoption were to occur he would run away." (In re Scott B., supra, 188 Cal.App.4th at p. 462.) He insisted that he only wanted to live with his mother, and attempted to run away. At the time, mother was confronting serious medical issues. Scott's court-appointed special advocate (CASA) "observed that Mother and Scott have an 'extremely close bond' and the stress of the adoption and Mother's medical condition could be overwhelming him . . . ." (Id. at p. 463.) The foster mother recognized Scott's love for his mother, and his need to have her in his life. Due to Scott's feelings, the DCFS requested more time to investigate whether adoption was the best permanent plan for Scott.
At the time of the section 366.26 hearing, the foster mother reported that Scott was adjusting to the idea of adoption, and that she told him that, if she adopted him, he would continue to see his mother regularly. The CASA opined that "it is imperative that when Scott is adopted he maintain contact with Mother as it is clear that Mother and Scott are extremely close and it would be detrimental for their relationship to be disrupted." (In re Scott B., supra, 188 Cal.App.4th at p. 465.)
Mother argued for the benefit-from-continuing-the-relationship exception to termination of parental rights. The juvenile court found that mother played a parental role with Scott, and had visited consistently during the two year dependency (she had missed a single visit), but "found that Mother's parental role and relationship with Scott do not outweigh the benefit and permanence of adoption." (In re Scott B., supra, 188 Cal.App.4th at p. 468.)
The Court of Appeal disagreed: "It is . . . clear from the record that Scott's emotional makeup will not enable him to endure interruption of his long-standing frequent visits with Mother." (In re Scott B., supra, 188 Cal.App.4th at p. 471.) The court based this conclusion on the CASA's statements in her reports throughout the dependency that mother and child had a very close relationship, the disruption of which would be detrimental to Scott. "The mother-child relationship in the instant case, coupled with Scott's continued emotional instability and his repeated insistence that his preference would be to live with Mother, presents a compelling reason for finding that termination of parental rights is detrimental to the minor." (Ibid.) Because adoption by the foster mother would jeopardize Scott's continuing contact with his mother, the appellate court reversed the juvenile court's order.
The instant record contains no equivalent evidence regarding the detriment to G.B. if the parent-child relationship is terminated. For example, while G.B. and his parents had a loving bond, there was no evidence of a "very close relationship" or "extremely close bond" between G.B. and either of his parents which provided stability to the minor and protected him from emotional and developmental setbacks, as was the case in In re Scott B., supra, 188 Cal.App.4th at page 472. Nor was there evidence, as in Scott B., that G.B. would be unequipped emotionally to endure the cessation of parental visits. In short, while G.B. and his siblings clearly love their parents and enjoy visiting with them, the evidence in this case does not present a compelling reason for finding that termination of parental rights would be detrimental to the children.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.