Opinion
B231487
09-01-2011
In re F.P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. F.G., Defendant and Appellant.
Cristina G. Lechman, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK77094)
APPEAL from an order of the Superior Court of Los Angeles County. Marilyn H. Mackel, Temporary Judge. Affirmed.
Cristina G. Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
F.G. (mother) appeals from an order terminating her parental rights as to F.P. (born June 2005). Mother raises a single issue on appeal, namely, that the juvenile court erred when it found the Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) exception to adoption (beneficial parental relationship) did not apply and terminated her parental rights. Stephen P., father of the child, is not a party to this appeal. Because the juvenile court's ruling was supported by substantial evidence, we affirm the order terminating parental rights.
All further statutory references shall be to the Welfare and Institutions Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
This case first came to the attention of the Department of Children and Family Services (DCFS) in February 2009, as a result of allegations that F.P. was being neglected. According to the DCFS detention report, police were notified on several occasions by F.P.'s daycare facility that he was not being picked up on time by mother, who would drop him off as early as 7:00 a.m. and pick him up as late as 8:00 p.m. F.P. went to school wearing the same clothes as the day before, sometimes without underwear, and appeared tired to his teachers. F.P. was enrolled in special education classes because he was linguistically delayed due to lack of stimulation resulting in limited or no language skills.
The DCFS social worker assigned to the case (CSW) had difficulty locating mother because she had no valid contact information. The Urban Education Partnership agency who paid for F.P.'s school and had been providing assistance to F.P. and mother since 2007, had previously found a housing opportunity for mother, but she failed to follow through and the opportunity was lost. When provided with living arrangements, mother never stayed in the same place for more than a week and always returned to F.P.'s father's residence.
When the CSW finally located mother, effective communication was very difficult because mother is deaf and has limited sign language skills so that the assistance of sign language interpreters was of minimal help. Mother did not provide information about F.P.'s father and refused to provide information about any other family members. Mother claimed that F.P.'s father threw her and F.P. out of the apartment they had shared and told the CSW that she had no food to feed F.P., no home, and no money. It was the CSW's opinion that mother was not cooperative or truthful in providing information that could help provide care for F.P., and he was removed from mother's custody.
On May 1, 2009, DCFS filed a dependency petition (§ 300, subds. (a), (b) and (g)) on behalf of F.P. The petition alleged that there were incidents of domestic violence between the parents, and mother's inability to provide stable housing for the child placed him at risk of physical and emotional harm. The juvenile court ordered that F.P. be detained, and vested custody with DCFS who placed him with Serenity FFA (Foster Family Agency). The juvenile court ordered family reunification services and supervised visitation.
The DCFS report prepared for the pretrial resolution hearing on June 9, 2009, contained a medical assessment of F.P. which showed his development to be that of an 18-month old, even though he was almost four years old. He was delayed in the areas of gross motor skills, language, fine motor skills and personal-social development. In May 2009, F.P. was hospitalized for one week because of fever, a lymph node infection in his groin area, and a staph infection.
A report for July 22, 2009, stated that mother and her boyfriend visited F.P. twice a week. Mother was told not to give F.P. too many snacks as he had been sick from overeating after previous visits.
The juvenile court appointed Dr. Daniel Kramon pursuant to Evidence Code section 730. He performed psychological assessments of mother, father and F.P. and submitted his report on August 6, 2009. Mother did not understand many of the questions presented to her despite the assistance of two sign language interpreters. Dr. Kramon found mother to be "profoundly cognitively impaired" and found that her impairment was "exacerbated by [her] extraordinarily limited expressive and receptive sign language skills to the point of significantly affecting her ability to express and receive information." He also found mother's insight and judgment to be very limited. Mother did not understand F.P.'s medical issues and he concluded that it would not be safe for F.P. to be in mother's care on an unmonitored basis.
DCFS submitted a report for the September 22, 2009 hearing. It stated that because of mother's limited communication skills, the instructor for the parenting classes mother attended issued a certificate of attendance rather than a certificate of completion. During a visit between mother and F.P. on August 31, 2009, the foster mother found F.P. on the floor playing with his toys, while mother and her boyfriend were asleep on the couch. Mother failed to appear for visits on September 14 and September 15, 2009, and claimed the city cancelled the bus line she relied on for transportation to visitation. On September 22, 2009, the juvenile court sustained an amended petition under section 300, subdivisions (b) and (g), and struck the allegation under subdivision (a) concerning domestic violence.
At the disposition hearing on December 18, 2009, the juvenile court took custody of F.P. pursuant to section 361, subdivision (b), and placed him in the care of DCFS. The juvenile court ordered family reunification services, and mother was ordered to participate in parenting classes for special needs parents and individual counseling to address appropriate parenting in consideration of F.P.'s medical needs. As a result of mother's limited ability to communicate, her lack of money and medical insurance to cover the cost of therapy sessions, and no known no-cost or low-cost options available to her, she did not comply with the juvenile court orders.
A DCFS interim review report dated February 5, 2010, recorded that overnight weekend visits with F.P.'s maternal aunt and her husband had a positive impact on F.P. F.P.'s maternal aunt and her husband considered adopting F.P. but did not want to interact with mother or facilitate her visits with F.P. The FFA social worker did not believe reunification with mother was likely and she recommended that F.P. be placed with his maternal aunt and her husband or "an adoptive home be located immediately" stressing that "[F.P.] needs to form a bond with a caretaker who is willing to provide a long-term, stable, adoptive home."
The interim report also indicated that mother's living arrangements with her boyfriend were unstable and they continued to bounce from one home to the next. Mother had no income to support herself and because she and her boyfriend were both undocumented, they were unable to get welfare benefits or food stamps. Mother missed one month of visitation from December 8, 2009, to January 11, 2010, without any contact or communication to the foster agency as to her absences. When mother did visit, F.P. became frustrated when he could not communicate his needs and desires to her. Mother would bring an adult size hamburger, French fries and a large Cola to F.P. which were inappropriate for a 9:30 a.m. visit. During the January 19, 2010 visit, F.P. was crying because mother was trying to force him to eat. F.P. had already eaten breakfast and refused to eat any more food, but was frustrated because he was not able to communicate this to mother. Mother refused to release F.P. so that he could be consoled. Mother wanted to take him home and accused the CSW of stealing F.P.
A status report for June 17, 2010, reported that F.P. completed 24 weeks of therapy to deal with behavioral issues including his inability to engage with his peers, and his lack of interpersonal communication skills. F.P.'s special education teacher reported that he was performing below grade level in his school, but he had positive grades and "positive citizenship." F.P. also got along well with his peers, had no behavioral problems, and was making progress with language skills. F.P.'s therapist reported that he was controlling and angry with his mother and visits with her increased his acting out behavior. The therapist noticed that F.P. did not have any desire to connect with mother, and that mother's cognitive impairments and deafness affected her ability to communicate with F.P. The therapist opined that F.P. appeared to communicate less with his mother now than he did in the past. The juvenile court continued the matter to August 9, 2010 for a combined review/permanency hearing pursuant to sections 366.21, subdivisions (e) and (f).
The DCFS report prepared for the hearing on August 9, 2010, stated that F.P. was placed in a new foster home, and had quickly bonded with his foster parents. F.P. was excited whenever he saw his foster parents and liked to jump into his foster father's arms, whom he referred to as "Daddy Jack."
Mother continued to visit F.P. once a week for two hours. Mother was asked to bring healthier food such as milk, juices and fruits, because F.P. had been sick from eating junk food. Mother continued to bring one liter sodas and chips and cookies to the visits. F.P. sat on the opposite side of the room from mother and told the social worker he did not want to play with her but wanted to be with "Daddy Jack," his foster father. The quarterly report from F.P.'s foster family agency stated: "This social worker has concerns regarding [F.P.] possibly returning to his birth mom since his communication with his birth mom is very limited and [F.P.] is unable to express his needs and his wants to his birth mom during visitation."
On August 9, 2010, the juvenile court terminated family reunification services. The juvenile court stated that mother did not have "the capability to respond appropriately to services such that the child can be returned to her care and custody." A section 366.26 permanency planning hearing was scheduled for December 6, 2010.
The DCFS report for December 6, 2010 stated that F.P. was very attached to his foster father, and was relaxed and content in his foster home. The foster parents were committed to providing F.P. with a permanent home and wanted to adopt him. It was the CSW's opinion that F.P. was emotionally connected to his foster parents and that they went "above and beyond what they were asked to do to provide for [F.P.'s] emotional and physical well-beings." DCFS recommended adoption by the foster parents as the permanent plan for F.P.
Mother continued to visit F.P. once a week. F.P.'s therapist stated that F.P. exhibited aggressive and controlling behavior during visits with mother. Due to the negative impact mother's visits had on F.P., DCFS recommended that her visits be limited to one per month, and that her parental rights be terminated. F.P. repeatedly stated he was happy living with his new foster parents and his therapist believed permanent placement with them would be appropriate. With regard to placement with them she stated: "The consistent, structured, supportive, and loving environment seems to have helped [F.P.] continue to improve developmentally, interpersonally, academically, and emotionally."
The matter was continued to February 7, 2011. A status report for that date stated that F.P.'s demeanor changed when he went from his foster parents to mother. When he was with his foster parents, F.P. talked more and was "engaging, playful," and had "a calm sense of self." With mother, he appeared "quieter and [to have a] sense of separation when in play." Mother did not interact with F.P. unless prompted to do so by the social workers. The matter was continued to March 1, 2011. A review report stated that F.P.'s prospective adoptive parents would not commit to an open adoption agreement, but would consider exchanging letters and sending photographs of F.P. to his birth parents.
At the permanency planning hearing on March 1, 2011, the juvenile court terminated parental rights. Mother timely appealed.
DISCUSSION
Mother contends that the beneficial parental relationship exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(i), applies in this case, and it was error for the juvenile court to terminate her parental rights.
"'After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child's interest in a "placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]"'" (In re Jason J. (2009) 175 Cal.App.4th 922, 935.) Under section 366.26, subdivision (c)(1), parental rights may be terminated if there is clear and convincing evidence of adoptability, which is the preferred plan. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) An exception to adoption exists where a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "A beneficial relationship is one that '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.' [Citation.]" (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.)
Mother has the burden to prove the benefit exception. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) On appeal we look for substantial evidence, viewing it "most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.]" (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.) Mother did not meet her burden below and substantial evidence supports that conclusion.
Mother contends she met the first prong required by the benefit exception by having "regular, consistent, positive and appropriate weekly visitation" with F.P. throughout dependency. Mother argues that DCFS's failure to discuss the issue of visitation in its brief is a concession that the requirement was met. The juvenile court reviewed numerous interim and status reports throughout the time F.P. was in the custody of the DCFS before reaching its decision that mother's visits were not consistent enough to meet the first prong of the exception to adoption. In general, the DCFS reported that mother rarely missed her appointments but the record indicates that mother missed visits on September 14, and 15, 2009 because of confusion over bus schedules, failed to visit on November 2, 2009, and then failed to appear for eight consecutive visits between December 8, 2009, and January 11, 2010. While mother visited F.P. consistently in the latter stages of the dependency proceeding prior to the termination of parental rights, her failure to show up for 11 visits with F.P. during his first six to seven months of foster care adequately support the juvenile court's finding of overall inconsistency.
In any event, mother's argument is unavailing because the statute requires mother to show "there has been regular contact and 'the minor would benefit from continuing the relationship.'" (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.) To satisfy the other requirement of the statute, mother must show that her 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.' [Citation.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) There must be "more than frequent and loving contact or pleasant visits. [Citation.] . . . . 'The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.]'" (In re Mary G. (2007) 151 Cal.App.4th 184, 207, fn. omitted.)
Mother focuses on the favorable relationship she has with F.P., stressing the positive aspects of her visits. She maintains she "made sure that F.P. used the restroom," "brought snacks for him," and "lovingly interacted" with him. Selectively citing the record, she claims that it shows that she played and interacted with F.P. and that he enjoyed the attention. But the record contains contrary evidence of mother's lack of parenting skills and failure to be able to communicate with F.P. on which the juvenile court relied. F.P.'s medical needs had not been attended to and he required hospitalization. Mother became combative when F.P. refused to eat food she brought to the visit. Mother would watch movies with F.P., or sit and watch him play by himself and have to be prompted by the social worker to interact with him.
Mother claims that F.P. enjoys her visits and would benefit from continuation of the close relationship she has maintained with him throughout the dependency action because he calls her "Mommy" and hugs her. But the evidence shows that any benefit that F.P. would derive from a continued relationship with mother is far outweighed by the benefit of a permanent adoptive home. Mother's relationship with F.P. is more like that of a close relative, which is not sufficient to impede adoption. (See In re Helen W. (2007) 150 Cal.App.4th 71, 81 [despite children calling mother "Mom" and her love for children, nothing showed only she could meet children's needs]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416, 1419-1420 [pleasant visits and child addressing parent as "mommy" are not sufficient evidence of a parental role but showed relationship was more that of one with family member].)
Mother essentially argues that because there is some evidence supporting her position then that implies there was insufficient evidence to support the juvenile court's finding. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) But it is not our function to retry the case. (Ibid.)"[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citation.]" (Ibid.) "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.)
Mother relies on In re S.B., supra, 164 Cal.App.4th 289, to show that a child's relationship with a parent that has a disability merits preservation. There, the father was in poor health, had been diagnosed with posttraumatic stress disorder, and was unable to care for S.B. The juvenile court found father had maintained, consistent and appropriate visitation with his daughter throughout the dependency proceedings and they shared an emotionally significant relationship. (Id. at p. 298.) The father had been S.B.'s primary caretaker for three years and, when she was removed from his custody, the father complied with every aspect of his case plan. (Ibid.) The record showed that "S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits." (Id. at pp. 300-301.) An expert who had conducted a bonding study of father and daughter testified that, due to their "fairly strong" bond, "there was a potential for harm to S.B. were she to lose the parent-child relationship." (Id. at pp. 295, 296.) The appellate court concluded that "[b]ased on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [the father]. [Citation.]" (Id. at p. 301.)
The court that decided In re S.B. explained in In re Jason J. (2009) 175 Cal.App.4th 922 that "[t]he S.B. opinion must be viewed in light of its particular facts." (Id. at p. 937.) The same court again revisited the In re S.B. decision two years later in In re C.F. (2011) 193 Cal.App.4th 549 and specifically disavowed the language in its prior decision that implied that all a parent had to show to establish the exception was that the child derived "'some measure of benefit'" from the relationship. (In re C.F., supra, at p. 558.) The court emphasized that "S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact." (Id. at pp. 558-559)
In In re C.B. (2010) 190 Cal.App.4th 102, a mother appealed from an order terminating her parental rights and relied on In re S.B.to support her position. (In re C.B., supra, at p. 124). In distinguishing In re S.B. because it contained a bonding study that supported appellant's position, the court stated: "In this case, . . . unlike In re S.B., there was no testimony from a psychological expert, no less one who had conducted a bonding study, that termination of parental rights would be detrimental to the children." (In re C.B., supra, at p. 125.)
Here, mother has failed to show that F.P. would derive a sufficient measure of benefit from maintaining parental contact. In In re S.B. the court found that the father shared "an emotionally significant relationship" with his daughter (In re S.B., supra, 164 Cal.App.4th at p. 296) and the appellate court found that relationship to be "amply supported by the record" (Id. at p. 298). Such a relationship here is non-existent. And, unlike In re S.B. but similar to In re C.B., there was no bonding study or any testimony from psychological experts in the juvenile court to support mother's contention that the beneficial parental relationship exception should apply. To the contrary, the evidence showed that social workers and therapists familiar with the case stated that there were serious communication problems between mother and F.P. and they recommended that F.P. be adopted.
We are not persuaded by mother's contention that her relationship with F.P. should be allowed to continue because F.P. would suffer a detriment should he lose his connection to the "deaf world." F.P. may have children with congenital deafness due to the fact that F.P.'s father has some deaf relatives on his side, and for that reason mother argues that F.P. should continue to be exposed to the deaf world in a loving context.
Mother had the burden of proving that the benefit F.P. derived from his relationship with her was so beneficial that termination of her parental rights would cause him great harm. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A showing of some incidental benefit is not sufficient. (Ibid.)The record indicates that F.P. is not deaf but is able to sign, while mother has very limited sign language skills and has great difficulty communicating with F.P. and interpreters. There is nothing in the record to suggest that F.P. will be denied the appropriate connections and exposure to the deaf world by his adoptive parents. The possible benefit to be derived from maintaining her relationship with F.P. has to be viewed in light of all the evidence. Maintaining the parental relationship for this reason would not promote F.P.'s well-being to such a degree as to outweigh the well-being he would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, at p. 575)
DISPOSITION
The order terminating mother's parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____, Acting P. J.
DOI TODD
We concur:
____, J.
ASHMANN-GERST
____, J.
CHAVEZ