Opinion
D059841 Super. Ct. No. EJ3292
10-28-2011
In re CHRISTOPHER K., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Lloyd M. Harmon, Juvenile Court Referee. Affirmed.
M.K. appeals the judgment terminating her parental rights to her son, Christopher K. M.K. contends the juvenile court prevented her from developing a bond with Christopher due to her mental illness. We affirm.
BACKGROUND
M.K. has a history of severe mental illness and substance abuse dating from 1997 and an ensuing history of conservatorships. Among the manifestations of her illness are delusions, erratic behavior and physical violence. M.K.'s criminal record includes convictions of misdemeanor child cruelty, battery and assault.
In September 2010 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn Christopher alleging the following facts. M.K. suffered from paranoid schizophrenia, bipolar disorder and borderline personality disorder. She was subject to a conservatorship of her person because she was unable to care for herself. She had long histories of substance abuse and of noncompliance with her psychotropic medication regimen.
M.K. was unable to identify Christopher's father.
At the detention hearing the court ordered no contact between M.K. and Christopher, and this order remained throughout the case. Christopher was detained in the hospital, a foster home and then in the home of nonrelative extended family members.
When the Agency's social worker interviewed M.K. at the outset of the case, M.K. became agitated, made bizarre statements and was unable to understand the social worker's explanation of the Agency's role. M.K. acknowledged she could not take care of Christopher. She told her conservator, doctors and a hospital social worker that she wanted to relinquish Christopher for adoption.
A few weeks later, M.K. told the Agency's social worker that she wanted to keep Christopher but she could not care for him alone. M.K. said she wanted Christopher to be with someone she knew so she could see him grow up. In the same conversation she said "I'm afraid I'll hurt my baby" and she wanted Christopher "to go to 'the adoption.' " In subsequent conversations with the Agency's social worker M.K. was unable to communicate intelligibly. At a hearing in October 2010 M.K. said, "I want to get the baby back. I never wanted to give him up."
Following Christopher's birth, M.K. was discharged to a board and care home. About a week later she was admitted to a psychiatric hospital. Her behavior was volatile; sometimes she was calm and sometimes she was aggressive and hostile. In October 2010, after returning to the board and care home, M.K. said she had threatened to kill a staff member with a knife. In November M.K. left the home to use illicit drugs and became increasingly psychotic. She was again admitted to a psychiatric hospital, then released to a locked facility.
M.K.'s psychiatrist believed M.K. was incapable of caring for another person, especially a baby, due to her severe mental illness. He did not expect this would change. A psychologist who evaluated M.K. in October 2010 said M.K. did not understand even the most basic child care issues. The psychologist concluded, "there are no foreseeable circumstances which would allow [M.K.] to competently function as a sole caretaker for a child" and she was not "amenable to reunification services." Another psychologist evaluated M.K. in November. He believed her mental illness and chemical dependency rendered her permanently unable to care for an infant; she was incapable of utilizing reunification services; and she was unable to understand protective issues.
In November 2010 the court entered a true finding on the petition. At the January 2011 dispositional hearing the court denied M.K. reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(2)) and set a section 366.26 hearing. When the court terminated parental rights in May, Christopher was still placed with the nonrelative extended family members.
M.K. did not seek review of the order denying services or of the no contact order.
All further statutory references are to the Welfare and Institutions Code. Section 361.5, subdivision (b)(2), authorizes a denial of reunification services upon proof, by clear and convincing evidence, "[t]hat the parent . . . is suffering from a mental disability . . . and that renders him or her incapable of utilizing those services."
DISCUSSION
If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One such exception exists if "[t]he parents have 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a beneficial relationship is determined by "[t]he 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 . . . ." (Id. at p. 576.)
M.K. does not contest the adoptability finding.
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M.K. concedes her mental illness prevented her from having the contact with Christopher necessary to develop a bond, and does not challenge the court's rejection of the beneficial relationship exception. Nor would she succeed with such a challenge. Substantial evidence clearly supports the finding that "[f]or circumstances really beyond [M.K.]'s control, she has been unable to engage in the normal parent-child relationship, and that relationship just has not been there at all." Christopher, who was not yet one year old, had never been in M.K.'s care. He was attached to the caregivers with whom he had lived since he was one month old, and they wished to adopt him.
M.K. concedes that neither the juvenile dependency statutes nor the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.) provide her grounds to appeal. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1139 ["the ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them"], disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) M.K. contends she was deprived of due process and of her fundamental rights as a parent, and asks us to fashion a remedy for her and other mentally ill parents.
Christopher too has rights. He has "compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to [him]." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) At the section 366.26 hearing the focus was on his need for permanency and stability, and there was a rebuttable presumption that continued out-of-home placement was in his best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The statutory dependency scheme balances the parent's interests with those of the child. (In re Marilyn H., supra, at pp. 306-307.) The court here properly weighed those interests and did not err by terminating parental rights.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR:
HALLER, J.
O'ROURKE, J.