Opinion
D059567 Super. Ct. No. NJ14220A-C
12-20-2011
In re M.F. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RUTH M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Blaine K. Bowman, Judge. Affirmed.
Ruth M. appeals a juvenile court judgment terminating her parental rights to M.F., I.M. and G.D. (together, the children) under Welfare and Institutions Code section 366.26. Ruth challenges the sufficiency of the evidence to support the juvenile court's finding that the section 366.26, subdivision (c)(1)(B)(i), beneficial parent-child relationship exception to adoption does not apply, and contends the court erred by not selecting guardianship as the children's permanent plan. We affirm.
All further statutory references are to the Welfare and Institutions Code.
The children's counsel asks that we affirm the juvenile court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (the Agency) detained the children in September 2009 after Ruth was arrested for being under the influence of methamphetamine when she arrived at the hospital to obtain two-week-old G.D. The Agency filed petitions under section 300, subdivision (b), alleging Ruth's substance abuse put the children at a substantial risk of serious harm. The juvenile court found by clear and convincing evidence the petitions made a prima facie showing, detained the children in the home of their maternal aunt (Aunt), and ordered reunification services and supervised visitation.
The children each have a different father. G.D.'s father (Carlos) was provided, but failed to comply with, reunification services in these dependency proceedings. Although M.F.'s father was awarded full legal custody of her in 2004, M.F. has lived with Aunt since 2005. I.M.'s father last visited him in 2008 and expressed no interest in obtaining custody of I.M. Because none of the fathers appealed, they will be mentioned only when relevant.
Ruth, M.F. and I.M. moved into Aunt's home in September 2005. While residing with Aunt, Ruth frequently would disappear or live with Carlos for weeks or months without contacting Aunt. Ruth left the children with Aunt so she could use controlled substances and she kept drug paraphernalia in the bedroom she shared with I.M. Ruth began using controlled substances at age 13, used illegal substances during and after her pregnancy with G.D. and has been incarcerated for substance abuse-related offenses. The children did well when Ruth was absent, and by September 2009 Aunt would no longer allow Ruth to reside in her home.
I.M., who was born in August 2005, was five weeks of age when he and M.F. began to live with Aunt.
At the contested adjudication and disposition hearing, the juvenile court declared the children dependents, removed them from Ruth's custody and placed them with Aunt. Ruth's case plan required her to participate in substance abuse treatment, refrain from using alcohol or illegal substances, submit to random drug and alcohol tests, and attend counseling.
In December 2009 Ruth successfully completed a 10-day substance abuse detoxification program, was engaged in counseling, had accepted responsibility for her drug use, and seemed committed to staying clean in order to regain custody of the children. By the six-month review hearing, Ruth was employed and had completed a parenting program and her supervised weekly visits with the children were positive and appropriate. However, Ruth had not accomplished several of her treatment goals and still associated with known controlled substance users. Ruth was living with Carlos and some of their roommates had criminal histories. At the six-month review hearings, the juvenile court found Ruth had made substantive progress on her case plan and ordered six additional months of reunification services.
The hearing concerning M.F. was held on a different day to accommodate M.F.'s father.
At the contested 12-month review hearing, the Agency requested termination of reunification services because Ruth had not reached her case plan goals, nor had she gained insight into her drug use or its effects on the children. Ruth requested another year of reunification services to give herself more time to resolve her issues and considered giving Aunt guardianship of the children. Although Ruth's drug tests were negative, she had stopped attending therapy and had consumed alcohol. Ruth had been dismissed from two different jobs and was unemployed. Ruth remained in a relationship with Carlos even though he had been "aggressive" with her on several occasions, and the couple continued to live with roommates who had criminal histories.
The court found that Ruth was not regularly visiting the children despite being provided many opportunities to do so. The family visitation center terminated visitation in June 2010 because of Ruth's excessive number of no shows and cancellations. Ruth was granted unsupervised visitation in June 2010 but had visited the children without supervision only once by November 2010. Ruth was advised she could visit the children at their school, in after school care, or in an Agency playroom, but she had not taken advantage of these opportunities.
The court found that Ruth had not resolved the issues that had led to the children's removal, she had not made substantive progress on her case plan and there was not a substantial probability the children would be returned to Ruth's custody within the following six months. The court terminated reunification services and scheduled a section 366.26 hearing.
At the contested section 366.26 hearing in April 2011, the Agency recommended parental rights be terminated and a permanent plan of adoption ordered. Ruth's visits with the children were generally appropriate and the children were happy to see her, but often it was Aunt who initiated contact between the children and Ruth. The Agency believed Ruth did not have a parental relationship with the children because they did not depend on her to meet their daily needs. It was Aunt who took the children to school, helped them with their homework, fed and cared for the children when they were sick, attended significant events in the children's lives, and dealt with their emotional issues resulting from the dependency proceedings.
The social worker may have been referring here to M.F.'s student-of-the-month award ceremony, which Ruth did not attend because she could not find transportation.
The children loved and cared for Ruth, but were bonded to Aunt, whom they had known their entire lives and who wanted to adopt them. Ten-and-one-half-year-old M.F. wanted to live with and was open to being adopted by Aunt, as long as she still could see her mother. Five-and-one-half-year-old I.M. also wanted to live with Aunt. Ruth was not able to provide the same level of care as provided by Aunt because Ruth had not made the children a priority in her life; there was always something else which was more important to Ruth than the children.
Ruth requested and the court ordered a parent-child bonding study. Although the children attended sessions for the bonding study, the bonding study was not presented at the section 366.26 hearing.
Ruth asked the court to order guardianship for the children because it was less final than adoption. Ruth contended that termination of her parental rights would be detrimental to M.F., because otherwise M.F. "will have a very negative image to thinking where mom is using again." However, the children's attorney believed a plan of guardianship would be for Ruth's benefit, not the children's. Although M.F. was conflicted about adoption, her attorney believed it was in her best interests to have permanency and stability rather than "continue to worry and think about what's going to happen to me . . . ."
The juvenile court found by clear and convincing evidence the children were likely to be adopted if parental rights were terminated. The court found Ruth had maintained regular visitation and contact with M.F. and I.M. in accordance with section 366.26, subdivision (c)(1)(B)(i). However, Ruth had not satisfied the visitation requirement for G.D. because G.D. was "an infant" and "daily contact . . . is crucial." Nevertheless, the court found there had been consistent visitation within the meaning of section 366.26, subdivision (c)(1)(B)(i), because the children were considered a sibling set.
The court very carefully reviewed the evidence and case law because it considered applicability of the beneficial parent-child relationship exception to be a "close call" in this case. The court agreed with the Agency's assessment that Ruth did not "seem to have her children at the top of the list of priorities in terms of not having enough -- or [not] making enough time . . . " for the children. The court found the section 366.26, subdivision (c)(1)(B)(i), exception did not apply because the children's relationship with Aunt was so strong that adoption by Aunt "clearly outweighs any possible benefit the children could expect to receive in a tenuous placement." The court found the children were likely to be adopted, terminated Ruth's parental rights, ordered adoption as the permanent plan, and designated Aunt as the prospective adoptive parent.
DISCUSSION
Ruth argues the court erred when it terminated her parental rights because there was substantial evidence she had a beneficial relationship with the children within the meaning of section 366.26, subdivision (c)(1)(B)(i). We disagree.
The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to other appeals; we uphold the juvenile court's findings if there is substantial evidence to support them. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order, and even if there is conflicting evidence we affirm the order if it is supported by substantial evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) On appeal, the parent has the burden of showing there is not substantial evidence to support the court's finding or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Because 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." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing, unless the parent establishes the existence of a statutory exception. (§ 366.26, subd. (c)(1).) The exception provided by section 366.26, subdivision (c)(1)(B)(i), requires the court to find "a compelling reason for determining that termination would be detrimental to the child" because "[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); In re Nolan W. (2009) 45 Cal.4th 1217, 1235; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249.)
Ruth does not contest the court's finding that the children are adoptable.
In determining whether a parent has met his burden to show the existence of a compelling reason to preserve the parent-child relationship, the court takes into consideration "[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 . . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "[T]he 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." (Id. at p. 575.)
The trial court found that Ruth frequently had visited the children, but "the overwhelming benefit the children will receive through the permanency and stability and love and care and affection that they are receiving with the aunt" clearly outweighed any benefits conferred upon the children through continuing their relationship with Ruth. (In re Autumn H., supra, 27 Cal.App.4th. at p. 575; In re C.F. (2011) 193 Cal.App.4th 549, 557.) We conclude there is substantial evidence to support the court's findings.
Because we conclude the order is supported by substantial evidence, we affirm the court's order even though the court's decision may have been a "close call." (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
Although Ruth contends the children spent "the vast majority of their lives" in her care, the record supports the inference that Aunt has assumed primary parental responsibility for the children since Ruth and the children moved into Aunt's home in September 2005. After September 2005, Ruth was "in and out of the children's lives," and sometimes her whereabouts were unknown. The court was required to consider the strength of Ruth's relationship with the children at the time of the section 366.26 hearing, and by April 2011, M.F. was 10 years old and had lived with Aunt for over one-half of her life, while G.D. and I.M. had lived with Aunt virtually their entire lives. (In re C.F., supra, 193 Cal.App.4th at p. 557.) There is evidence the children do not look to Ruth to meet their daily needs, nor do they consider her a consistent, reliable parental presence in their lives. Although the children share a positive relationship with Ruth, they show no distress when separating from her at the end of their visits and do not ask to see her in-between visits. This evidence permits the reasonable inference that the children did not have a "significant, positive, emotional attachment" to Ruth. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
M.F.'s father had custody of her from approximately age four until she was five.
There was evidence to support the court's finding that Ruth had not made the children a priority in her life. For example, Ruth chose to cook dinner for Carlos rather than visit the children, had scheduled only one unsupervised visit with the children in over six months, and failed to visit the children for the three weeks before the section 366.26 hearing because she was a part-time, on-call employee. These facts support the court's finding that this was not "an extraordinary case" requiring preservation of parental rights over the legislative preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The record contains substantial evidence that the children were receiving permanency, stability, love, care and affection with Aunt; the children share a significant bond with Aunt and are thriving in her home. Ruth argues the juvenile court impermissibly considered the relationship between the children and Aunt in terminating her parental rights. While the caretaker-child bond is not dispositive in determining whether parental rights should be terminated (In re Jasmon O. (1994) 8 Cal.4th 398, 418), the trial court was required to consider "the benefits from a stable and permanent home provided by adoption . . . " in determining whether parental rights should be terminated. (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
Ruth presented no expert testimony to contradict the social worker's opinion that the children would benefit more from the permanency of adoption than from continuation of the parent-child relationship. As the party claiming the parental relationship exception, it was Ruth's burden to demonstrate that maintaining her parental relationship with the children outweighed the benefits of their adoption by Aunt. (In re Nolan W., supra, 45 Cal.4th at p. 1235; In re Autumn H., supra, 27 Cal.App.4th at p. 574.) "The trial court was entitled to find the social worker credible and to give greater weight to her assessments and testimony." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) As an appellate court "[w]e have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence." (Id. at pp. 52-53.)
Ruth relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), in which this court concluded the juvenile court erred in declining to apply the beneficial parent-child relationship exception. (Id. at pp. 300-301.) In S.B., the child was five years old, the appellant father had been her primary caretaker for three years, she displayed a strong attachment to the father, and the father had "complied with every aspect of his case plan." (Id. at pp. 293, 298, 300-301.) This court has repeatedly emphasized the decision in "S.B. is confined to its extraordinary facts." (In re C.F., supra, 193 Cal.App.4th at p. 558; In re Jason J. (2009) 175 Cal.App.4th 922, 937.) S.B. is not applicable to this case because there is evidence from which the court could find that Ruth has not been the primary caretaker for the majority of the children's lives, the children's attachment to her was at best ambivalent, and Ruth did not comply with every aspect of her case plan.
Ruth argues the court should have selected long-term guardianship for the children until she was able to reunite with them. Ruth has not demonstrated how relegating the children to legal guardianship status would be more beneficial to them than the permanent status of adoption offered by Aunt. Adoption is the plan preferred by the Legislature where, as here, children cannot be returned to their parents. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419-1420.) "In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement." (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Since the section 366.26, subdivision (c)(1)(B)(i), beneficial parent-child relationship exception to adoption was found not to apply, "it necessarily follows that the juvenile court correctly determined that adoption was the appropriate permanent plan" for the children. (In re Beatrice M., supra, at p. 1420.)
There is no merit to Ruth's assertion that adoption is not more permanent than guardianship. "Unlike adoption, a guardianship is 'not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' " (In re Zachary G., supra, 77 Cal.App.4th at p. 809, quoting Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251.)
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The children have been in limbo for years and there is no guarantee Ruth will ever be ready to parent the children appropriately. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) "The Legislature's goals are clear: 'We have long recognized that providing children expeditious resolutions is a core concern of the entire dependency scheme.' [Citation.] 'The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.' " (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1061.) Because Ruth could not meet the children's needs, the children deserve to have their custody status promptly resolved and their placement made permanent and secure.
Examining the evidence in the light most favorable to the judgment, we conclude that substantial evidence supports the juvenile court's findings that the section 366.26, subdivision (c)(1)(B)(i), beneficial parent-child relationship exception to adoption does not apply, and adoption is the appropriate permanent plan for the children.
DISPOSITION
The judgment is affirmed.
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NARES, Acting P. J.
WE CONCUR:
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O'ROURKE, J.
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AARON, J.