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In re A.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Apr 6, 2018
No. E068972 (Cal. Ct. App. Apr. 6, 2018)

Opinion

E068972

04-06-2018

In re A.L. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. L.C., Defendant and Appellant.

Neale B. Gold, by appointment of the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, Carole Nunes Fong, and Prabhath Stettigar, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ100927) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Neale B. Gold, by appointment of the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, Carole Nunes Fong, and Prabhath Stettigar, Deputy County Counsel, for Plaintiff and Respondent.

L.C. (mother) has eight children, who between them have been the subjects of six dependency petitions. In this appeal, she challenges an order terminating parental rights to three of the children. She contends that the juvenile court erred by finding that the "beneficial parental relationship" exception to termination did not apply. Finding no error, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

The mother herself was in foster care until she was 18. She has the following eight children:

One social worker reported that the mother had nine children, but that appears to be a mistake.

Initials

Short reference

Sex

Birth month

I.C.

I.

Girl

1/1997

E.C.

E.

Girl

10/1998

A.L.

A.

Girl

6/2006

A.C.-V.

An.

Boy

8/2008

D.J.

Da.

Boy

3/2010

D.J.

Do.

Girl

11/2013

A.F.-C.

Al.

Girl

12/2015

S.C.

S.

Boy

6/2017

This appeal involves only A., Do., and Al.

First Petition: In February 2001, E. and I. were found to be dirty; they had lice and rashes. There were also unspecified "domestic violence issues." E. and I. were detained and the Department filed a dependency petition as to them. In May 2001, they were declared dependents. In August 2002, they were returned to the mother's custody, and in February 2003, the dependency was terminated.

Second Petition: In November 2004, E. and I. were found to be "filthy," with "severe head lice." Once again, they were detained and the Department filed a dependency petition as to them. In January 2005, they were declared dependents. In September 2006, they were placed in a legal guardianship and the dependency was terminated.

Third Petition: In June 2006, A. was born, and in August 2008, An. was born. In December 2008, the home was found to be filthy; A. and An. were "unkempt and odoriferous." The mother admitted using methamphetamine. She also admitted that she had bipolar disorder and was not taking medication for it. A. and An. were detained and the Department filed a dependency petition as to them. In April 2009, they were declared dependents.

In August 2009, the guardianship over E. and I. was terminated and the dependency as to them was reinstated. In January 2010, all four children were placed back with the mother. In December 2010, the combined dependency was terminated.

Fourth Petition: In March 2010, Da. was born, and in November 2013, Do. was born. In January 2015, I. turned 18.

In July 2015, A., An., and Do. were found to be dirty. A.'s teeth were visibly decayed; An. and Da. could not remember ever going to a dentist. The home had "minimal" food; the stove was not working, and there was no hot water. The mother admitted using methamphetamine and marijuana. She also admitted having schizoaffective disorder, for which she was not taking medication.

E., A., An., Da., and Do. were detained and the Department filed a dependency petition as to them. In October 2015, they were declared dependents.

Fifth Petition: In December 2015, Al. was born. The mother admitted using opiates and marijuana during the pregnancy; she also admitted having "unresolved mental health issues." The Department detained Al. and filed a dependency petition as to her. In March 2016, she was declared a dependent.

In October 2016, E. turned 18.

In March 2017, the juvenile court held an 18-month review hearing. With regard to Da., it awarded sole physical custody to his father and terminated the dependency. With regard to A., An., Do., and Al., it terminated reunification services and set a section 366.26 hearing.

With respect to the then-youngest child, Al., it was a 12-month review hearing.

Sixth Petition: In June 2017, S. was born. The Department did not detain him but did file a dependency petition as to him. In August 2017, the juvenile court declared S. a dependent. It left him in the mother's custody under a family maintenance plan.

On the same date, the juvenile court held a section 366.26 hearing. With respect to An., it continued the hearing. With respect to A., Do., and Al., it found that the children were adoptable and that there was no applicable exception to termination. Accordingly, it terminated parental rights. The mother appeals from this order.

II

THE "BENEFICIAL PARENTAL RELATIONSHIP" EXCEPTION

The mother contends that the juvenile court erred by finding that the beneficial parental relationship exception to termination did not apply.

A. Additional Factual Background.

The evidence submitted at the section 366.26 hearing consisted of two specified social worker's reports, the mother's testimony, two written statements by the mother, and one exhibit.

At one point, the juvenile court stated that it was "tak[ing] judicial notice of the court's entire file." However, it appears to have done so solely in connection with the hearing on the mother's then-pending "changed circumstances" petition (Welf. & Inst. Code, § 388), and not in connection with the section 366.26 hearing that it held immediately afterward.

We consider only this evidence.

The mother has asked us also to consider information contained in earlier reports. She relies on the principle that "[i]n determining the sufficiency of the evidence, we review the whole record . . . ." (In re L.K. (2011) 199 Cal.App.4th 1438, 1446, italics added.) However, this begs the question of what constitutes the relevant "record."

In preparation for a section 366.26 hearing, the social worker must prepare a report, which must address certain specified topics. (Welf. & Inst. Code, §§ 361.5, subd. (g)(1), 366.21, subd. (i), 366.22, subd. (b), 366.25, subd. (b)(1); Cal. Rules of Court, rule 5.725(c).) At the hearing, the juvenile court "shall review th[is] report" and "shall receive other evidence that the parties may present . . . ." (Welf. & Inst. Code, § 366.26, subd. (b).) The juvenile court "must state on the record that the court has read and considered the report . . . and any other evidence . . . ." (Cal. Rules of Court, rule 5.725(d); see also Welf. & Inst. Code, § 366.26, subd. (b).) By negative implication, the juvenile court cannot consider any evidence other than the report prepared for the hearing unless it "receive[s]" it from a party and states on the record that it has considered it.

Accordingly, at the beginning of a dependency hearing, counsel for the social services agency typically offers particular reports (identified by date) into evidence and the juvenile court admits them. The juvenile court then asks the parties if they have any other evidence and admits that, too. The repetition of this ritual tends to numb the participants to its significance. But it is no meaningless formality. It allows everyone concerned — including this court — to focus on a shared and defined body of facts.

If the juvenile court were to base its decision, without any warning, on a fact that it happened to remember from a report filed years earlier, no doubt the parties would cry foul. (See In re George G. (1977) 68 Cal.App.3d 146, 156-159 [failure to provide parents with a copy of social worker's report violates due process].) By the same token, we cannot reverse an order simply because a fact found in a report filed years earlier undercuts it.

1. The mother's visitation.

Between October and November 2016, the mother had weekly supervised visits. The visits went well; the mother was "appropriate."

Between November 2016 and January 2017, the mother was allowed unsupervised visits, but only in public places and not at her home. The visits continued to go well. However, A. "said she feels uncomfortable and does not want to be part of the visitations anymore." The Department learned that the mother was bringing the children to her home; it made the visits supervised again. A. was then willing to continue to visit.

In March 2017, the juvenile court reduced the mother's visitation to twice a month, supervised. Generally, the visits went well. The mother was affectionate; she hugged the children and kissed them and said she missed them. She would play with them, brush and braid their hair, have snacks with them, and talk to them. According to the mother, when visits ended, Do. wanted to stay with her; Al. would hug her, and sometimes it was hard to pull Al. away.

A., however, had problems with the visits. Twice, she became upset when the mother discussed her then-unborn baby. Another time, A. got upset when the mother first gave her money and then asked her to give it back. A. chose not to attend several visits. According to the mother, however, A. told her at least twice "that she would like to come home with me and she wishes none of this was going on"; when visits ended, A. would hug her and say she loved her.

2. Life with the prospective adoptive parents.

As of the date of the section 366.26 hearing, A. was 11, Do. was 3., and Al. was 1. A. and Do. had had four placements; Al. had had five placements.

The children had been placed with the prospective adoptive parents since June 2016 (i.e., for 14 months). They "ha[d] adjusted well in the home and ha[d] established a close attachment to the foster family." "The prospective adoptive parents appear to have a healthy bond with the children. [They] have provided [the children] with a loving, safe and nurturing environment and they are meeting the children's needs."

In school, A. had "improved tremendously." She had been "nominated as most improved student and awarded at a school ceremony." A. "spoke highly" of the prospective adoptive parents "and indicated that she likes living in the home." She wanted to be adopted by them; "[s]he giggled that she wants it to happen as soon as possible."

After visits with her biological family, Do. "display[ed[] unusual behaviors." These included trouble sleeping, nightmares, and talking in her sleep. She had been diagnosed with Reactive Attachment Disorder.

"The essential feature of Reactive Attachment Disorder is markedly disturbed and developmentally inappropriate social relatedness in most contexts that begins before age 5 years and is associated with grossly pathological care [citation]." (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (4th ed., text rev., 2000) p. 127 (DSM-IV).)
"Considerable improvement or remission may occur if an appropriately supportive environment is provided. Otherwise, the disorder follows a continuous course." (DSM-IV, supra, at p. 129.)

Al. had been exposed to heroin and methadone before birth. When she was 14 months old, she was diagnosed as having gross motor delay and a lack of normal physical development. She suffered from "muscle tautness" in her left leg, presumably as a result of prenatal drug exposure. This gave her a "crablike crawl" and made it hard for her to learn to walk. Her neurologist suspected that she may have suffered a stroke in utero and scheduled her for an MRI. Thereafter, she had one or more seizures; she was diagnosed with epilepsy and prescribed antiseizure medication.

The timeline regarding the progress of Al.'s symptoms is confusing; it appears to contain duplicative or repetitive information and other errors.
We also note that the social worker's report contains suspiciously similar information regarding Do., including a weak left leg, a "crablike crawl," difficulty learning to walk, a suspected stroke in utero, a prescription for antiseizure medication, and an MRI scheduled for the same date. However, the same report also states that Do. "is quite steady on her feet and able to run easily." Moreover, the adoption social worker stated that Do. was in "good health" and had no "issues of concern." We can only conclude that the social worker mistakenly duplicated information about Al. under a heading pertaining to Do.

The two younger girls were too young to understand adoption. However, they were "very attached to the prospective adoptive parents, following them around and climbing into their laps for cuddles."

B. Additional Procedural Background.

At the section 366.26 hearing, the mother's counsel asked the juvenile court to select "a lesser plan of legal guardianship."

The juvenile court found that the children were adoptable. It then stated: "Where the court has determined that it is likely that the children will be adopted if parental rights are terminated, the party then seeking to show that termination of parental rights is detrimental to the child has the burden of proving the existence of one of the exceptions set forth under 366.26 by a preponderance of the evidence.

"And, here, counsel [for] mother . . . ha[s] argued for the beneficial-relationship exception. . . .

"[W]ith regards to . . . mother, the argument has been presented that these parents should fall within the beneficial relationship exception such that the court should choose a less[er] permanent plan, such as legal guardianship, rather than the termination of parental rights."

It found "that mother has exercised regular visitation and contact. . . . While she did have to cancel a few visits, she has pretty much consistently made them all up."

However, it also found that the benefit of maintaining the parent-child relationship did not outweigh the benefit of adoption, as follows.

With regard to A., it explained that, while A. "recognizes mother in that role," "the child has spent a considerable amount of her life in foster care away from mother based on mother's recurrent issues." She had been "frustrat[ed]" with the mother and had refused to visit her for a time. She had been exposed to the mother's domestic violence issues. Finally, she was "bonded" with the prospective adoptive parents and wanted to be adopted by them.

With regard to Do. and Al., it noted that the mother had "occupied a parental role" only briefly and only with Do. "Mother is effectively a friendly visitor . . . ." These two children were bonded with their sibling A., as well as with the prospective adoptive parents.

C. Forfeiture.

Preliminarily, the Department argues that the mother forfeited her contention by failing to raise it below.

"[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.]" (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Hence, ordinarily, the failure to raise the beneficial parental relationship exception in the juvenile court forfeits it as an issue on appeal. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295; see also In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [beneficial sibling relationship exception].)

Here, however, the trial court raised the beneficial parental relationship exception, apparently on its own. This was sufficient to preserve the issue for appeal. As mentioned, the rationale for requiring an appellant to have raised an issue below is to give the trial court an opportunity to correct the error. However, when, as here, the trial court has raised the issue on its own motion, it has had the necessary opportunity, and therefore the appellant can appropriately raise the issue on appeal. (People v. Stitely (2005) 35 Cal.4th 514, 537, fn. 12.)

The trial court remarked that the mother had raised the beneficial parental relationship exception. The Department argues that this is incorrect, because the mother's counsel never raised the exception on the record. However, it is possible that the mother's counsel did so in chambers or otherwise off the record.

D. The Record Supports the Juvenile Court's Finding.

"'At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child.' [Citation.] The court may order one of three alternatives: adoption, legal guardianship, or long-term foster care. [Citations.]" (In re D.O. (2016) 247 Cal.App.4th 166, 173.)

"'Adoption, where possible, is the permanent plan preferred by the Legislature.' [Citation.]" (In re D.O., supra, 247 Cal.App.4th at p. 173.) Thus, as a general rule, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must select adoption as the permanent plan and terminate parental rights. (Welf. & Inst. Code, § 366.26, subds. (b)(1) & (c)(1).) There is an exception to this rule, however, if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (id., subd. (c)(1)(B)) for one of six specified statutory reasons. (Id., subd. (c)(1)(B)(i)-(vi).) One such reason is that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)

"The 'benefit' prong of the exception requires the parent to prove his or her relationship with the child '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.' [Citations.]" (In re K.P. (2012) 203 Cal.App.4th 614, 621.)

"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.' [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.] Further, . . . the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.)

"In reviewing challenges to a trial court's decision as to the applicability of th[is] exception[], we . . . employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge. [Citation.] We . . . apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the child has a close and strong bond with a [parent]. [Citations.] However, a challenge to the trial court's determination of questions such as whether . . . there is a compelling reason for determining that termination of parental rights would be detrimental to the child '"is a quintessentially discretionary determination."' [Citation.] We review such decisions for abuse of discretion. [Citation.]" (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)

"'[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.' [Citation.]" (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.)

First, with respect to A., the mother did not have a beneficial relationship at all. Months before the section 366.26 hearing, A. said she did not want to visit anymore. The visits did continue, but only after they were changed from unsupervised to supervised. Even then, A. skipped some visits; when visits did occur, she repeatedly got upset with the mother. Meanwhile, A. was clearly bonded with the prospective adoptive parents. She was thriving in their care. She "spoke highly" of them, and she wanted to be adopted by them "as soon as possible."

The mother points out that, at least according to the mother's own testimony, at the end of visits, A. would hug her and tell her she loved her; twice, A. told her that she wanted to go home with her. However, at most, this created a factual issue regarding A.'s wishes that it was up to the trial court to resolve. A., aged 11, had lived with the mother most of her life. Almost any child in that position — even an abused child — would feel some affection for and loyalty to a parent. However, this did not conclusively demonstrate that a relationship with the mother would promote her well-being.

Second, with respect to Do. and Al., while the mother clearly had a better relationship with them than with A., the juvenile court could reasonably find that termination would not be detrimental. The mother argues that her conduct during visits with them was parental; however, coloring, hair-braiding, and sharing snacks are all things that a baby-sitter might do. As the trial court quite properly found, "Mother is effectively a friendly visitor."

The mother claims that she also breastfed Al., burped her, and changed her diapers. However, she cites reports that were not introduced into evidence at the section 366.26 hearing. In any event, these are still things a baby-sitter would do, with the minor distinction that a baby-sitter would use a bottle.

The mother also cites her own testimony that the children clung to her at the end of visits. After visits, however, Do. appeared to be disturbed, suffering from difficulty sleeping and nightmares. The trial court could reasonably find that the visits were actually detrimental to Do.

Significantly, Do. had been diagnosed with Reactive Attachment Disorder. This meant, by definition, that the mother had not managed to form a healthy bond with Do., and that Do. was in urgent need of the kind of permanent, stable parental relationship that the prospective adoptive parents could provide.

Unlike A. and Do., there was no evidence that visits were affirmatively detrimental to Al. At the same time, however, there was no evidence that termination would be detrimental to her, either. She was "attached" and "bonded" to the prospective adoptive parents. They were providing parental care for her difficulty walking and her seizures; the mother, visiting twice a month, could not.

Finally, the mother is critical of the supposed fact that the social worker never told the children that adoption meant that "their relationship with their mother would be forever severed." Apparently, the point is that A.'s expressed desire to be adopted was uninformed and unreliable. Actually, what the social worker said was that she had not discussed "the case plan" with the children. However, both the social worker and the adoptions social worker had discussed adoption with A. In any event, adoption did not necessarily mean that the children would never see the mother again. The prospective adoptive parents were open to post-adoption contact, "as long as [the children] are safe and protected." The juvenile court was not required to doubt A.'s desire to be adopted.

For these reasons, the juvenile court properly found that the beneficial parental relationship exception did not apply.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J. We concur: CODRINGTON

J. FIELDS

J.


Summaries of

In re A.L.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Apr 6, 2018
No. E068972 (Cal. Ct. App. Apr. 6, 2018)
Case details for

In re A.L.

Case Details

Full title:In re A.L. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Apr 6, 2018

Citations

No. E068972 (Cal. Ct. App. Apr. 6, 2018)