Opinion
A148289
01-30-2017
In re K.V., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. N. V., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JD143103)
N.V. (Mother), the mother of K.V., appeals from an order terminating her parental rights. She contends the juvenile court erred when it determined the benefits of continuing her relationship with her son did not outweigh the benefits of his adoption. The order is supported by the record and complies with the law, so we affirm it.
BACKGROUND
The history of this case from the filing of the Welfare and Institutions Code section 300 petition through the order terminating reunification services and setting a permanency planning hearing after the 18-month review hearing is discussed in our previous opinion in this matter, which we incorporate by reference. (N.V. v. Superior Court, Oct. 28, 2015, A145489 [nonpub. opn.].) On August 31, 2015, Mother filed a writ petition in this court challenging the termination of her reunification services. We stayed the permanency planning hearing, heard arguments on October 14, 2015, and on October 28, 2015, denied Mother's writ petition and dissolved the stay.
Further statutory references are to the Welfare and Institutions Code.
On September 23, 2015, the San Francisco Human Services Agency (the Agency) filed a report for the section 366.26 hearing. The Agency recommended that parental rights be terminated and adoption selected as a permanent plan.
The social worker wrote that K.V., then two years old, was "a happy, engaged, and social little boy." He was developmentally on target and had no behavioral or emotional problems. Mother had maintained contact and a relationship with K.V. but there had been gaps in her visitation, including several weeks of missed visits between June 29 and July 23. The social worker wrote that K.V. "has a relationship with his mother and is comfortable in her presence, however, [Mother] no longer stands in the parental role. [K.V.] is affectionate and plays with his mother, however he looks to his relative caretakers as his primary caretakers and to have his everyday needs met." K.V.'s caretakers were willing and able to adopt him and had an approved adoptive home study. They were reported to "love [K.V.] as if he was their own child" and K.V. regarded them as his parents.
In November 2015 Mother filed a section 388 petition seeking to have K.V. returned to her care or, alternatively, six additional months of reunification services. She also moved for a bonding study to support her claim that K.V. fell within the beneficial relationship exception to termination of parental rights. The court granted her motion for a bonding study over opposition from the Agency and K.V.'s counsel.
Mother has not challenged the denial of her section 388 petition in this appeal, so we will not address the evidence relevant to it unless it also bears on the termination of her parental rights.
On April 20, 2016, the Agency filed an addendum report and response to Mother's section 388 petition. It continued to recommend that parental rights be terminated with a permanent plan of adoption.
K.V. continued to live with the uncle and aunt who had been his caretakers for 18 months. Mother had visited consistently during the review period. She was "affectionate with [K.V.], and while [K.V.] is receptive to the affection he does not normally reciprocate. [K.V.] frequently has a hard time leaving his caretakers to go on the visit but is happy when he arrives at the visit. Mother does not bring diapers, food, or supplies for [K.V.] and uses the supplies the relative caretakers send with [K.V.]. [K.V.] does not refer to his mother as 'Mommy' or 'Momma,' and the mother will correct him and ask him to call her 'Mommy.' The mother is frequently distracted and on her phone at the visits. According to the visitation supervisor, [K.V.] does not have any problems leaving his mother when the visit is over and is happy to return to the relative placement."
Psychologist Hugh Molesworth conducted the bonding study. He wrote: "[t]he records and interviews suggest [K.V.] has formed a maternal attachment to his substitute female caregiver. It is a good sign for his emotional development that he has been able to form such an attachment. It also indicates, if he has the opportunity in the future, that he is capable of forming such an attachment with his mother. The observations, interviews, and records indicate that he clearly has a bond with his mother, and that the relationship has positive qualities for him. While [K.V.'s] attachment to [Mother] has substance, the attachment, at this time, is more akin to that of a close aunt or similar figure, rather than that of a mother."
Dr. Molesworth also opined "[i]t is unlikely that the severance of the relationship between [K.V.] and his mother would have a catastrophic effect on [K.V.]. However, severance of the relationship would harm and damage [K.V.'s] emotional development through its impact on his identity formation during adolescence. Identity formation and individuation are the key developmental tasks of adolescence, tasks that involve the establishment of a sense of one's own self separate from that of parents and family. . . . [T]his process is especially complicated in the case of adopted kids who have multiple parents in their backgrounds, creating a confusion of internal figures and voices. For the adolescent, this process is kind of like sorting through pieces of a puzzle, the puzzle of who they are. In [K.V.]'s case, one piece of that puzzle is his biological mother, and he will benefit, and suffer less harm, if the piece of the puzzle can be kept in front of him to some degree, not cut off, not buried." Dr. Molesworth noted that adopted children are generally at higher risk for adjustment issues, mental health problems and substance abuse in adolescence, and that K.V.'s risk might be reduced by preserving his relationship with Mother.
The Agency's consulting psychologist, Dr. Alice Lieberman, reviewed Dr. Molesworth's report. She opined it would be detrimental for K.V. to be removed from the care of his relative caretakers due to his age, the amount of time he had been in out-of-home care, and the fact that he had not lived with Mother since he was three months old. Dr. Lieberman supported a permanent plan of adoption.
The social worker wrote that Mother "does not stand in the parental role with [K.V.]. [K.V.] looks to his mother as a close family friend or aunt, not as a parent or primary caretaker. . . . [¶] Regarding the termination of parental rights and the permanent plan for [K.V.], the bonding study completed by Dr. Molesworth did not indicate that it would be detrimental to [K.V.] for the mother's parental rights to be terminated. [K.V.] does have a relationship with his mother, but she does not stand in the parental role, and [K.V.] does not look to her as his primary caretaker, or to have his immediate needs met. [K.V.] looks to his current relative caretakers as his mother and father and relies on them to have all of his physical and emotional needs met." In contrast, K.V. related to Mother "like an aunt or family friend."
The combined section 388 and section 366.26 hearing was held April 25, 2016. The social worker testified that the relative caretakers were open to post-adoption contact between Mother and K.V., although the particulars would have to be agreed upon. Mother's visits were suspended a year earlier after she sent a text threatening to kill one of K.V.'s caretakers and had been supervised once they resumed in June 2015 due to safety concerns.
The social worker reiterated her observation that K.V. had a parental relationship with his caretakers but not with Mother. "I feel like based on the amount of time he's been in out-of-home care, the fact that he's really bonded so closely to this—his current family, I feel like that's the primary parental relationship he has."
Mother's father testified about her current circumstances. He had attended some of Mother's supervised visits, most recently about four months earlier. During that visit Mother "[did] what a mother does. She's very close to [K.V.] and cares for him and plays with him a lot, and constantly checking his diapers, playing with him and trying to teach him stuff."
Dr. Molesworth testified on behalf of Mother consistently with his bonding study that the bond between Mother and K.V. was positive and affectionate, but not maternal. K.V.'s attachment to Mother was "more akin to that of a close aunt or similar figure rather than that of a mother," while K.V.'s aunt was his principal attachment figure and he had a maternal attachment with her. K.V.'s visitation supervisor also believed the relationship between K.V. and Mother had "more of the characteristics of friendship" than of a parent-child relationship. Dr. Molesworth agreed it was important for a three-year-old to have a maternal attachment, to have someone clearly meeting all of his needs, and to have someone willing and able to provide him with a permanent, stable home.
It was Dr. Molesworth's opinion that terminating Mother's parental rights could harm K.V. because he would have to deal with the loss of his biological parents as he grew older. "[I]t complicates the . . . child's emotional and identity development if the link with the biological parents is cut off. You know, one of the risks for children as they develop is that they become—you know, there's a risk of behavior problems in the future from some of the negative feelings and emotions and conflicts that they have around their adoption." Such problems could include substance abuse, delinquency, and acting out behaviors that go beyond those confronted in normal adolescent development.
Dr. Molesworth nonetheless believed that terminating Mother's parental rights would not be catastrophic for K.V. "I think there would be some degree of loss. The reason I say not catastrophic is because, you know, his emotional—he seems to be more emotionally invested in the aunt and uncle at this time rather than [Mother]. So, you know, withdrawing—there is some emotional investment with [Mother], but the primary sources of emotional investment and support for him are with the aunt and uncle. If [Mother] was much more invested by him, you would expect a much more significant effect and bigger loss for him." Molesworth thought it would be beneficial for K.V. to have ongoing contact with Mother in the context of a permanent guardianship or adoptive relationship with his relative caretakers.
The court denied Mother's section 388 petition, declined to find that the benefits of continuing her relationship with K.V. outweighed the benefits of adoption, and found by clear and convincing evidence that K.V. was likely to be adopted. Accordingly, it ordered Mother's parental rights terminated. Mother filed this timely appeal.
DISCUSSION
Mother contends the court erred when it declined to find the benefits of her relationship with K.V. precluded the termination of her parental rights. We review the refusal to make such a finding for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)
While we recognize that other courts have reviewed such a determination to see whether it is supported by substantial evidence (see, e.g., In re Dakota H. (2005) 132 Cal.App.4th 212, 228) or under a hybrid standard (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314), we will not address the divergence here. As we observed in Jasmine D., supra, 78 Cal.App.4th at page 1351, the practical differences between the standards of review in these cases are minimal and not outcome determinative. In this case, beyond any doubt, the result would be the same under either test.
If a child is found adoptable at the section 366.26 hearing, the juvenile court must terminate parental rights and place the child for adoption unless it finds for a compelling reason that termination would be detrimental to the child because, inter alia, "[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).) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove 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 Dakota H., supra, 132 Cal.App.4th at p. 229.) The child's relationship with the parent must "promote[ ] 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. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Only in extraordinary cases will preservation of the parent's rights prevail over the legislative preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
This is not a case where the child's relationship with his mother outweighs the well-being he could gain in a permanent adoptive home. We do not question that Mother loves K.V. and that they share a positive and affectionate relationship. But it is clear from the record that, after almost two years of reunification efforts, Mother was not ready to be his full-time parent. "[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Even the expert who conducted the bonding study and testified on Mother's behalf acknowledged that her relationship with K.V. was more that of a friend or aunt than a parent. On the other side of the balance, it was uncontested that K.V. has an established parental relationship with his prospective adoptive family. The court's determination was within its discretion.
Mother urges us to reject the well-established Autumn H. rule that applies the beneficial relationship exception only where the parent's relationship with the child outweighs the well-being the child would gain in a permanent adoptive home. (Autumn H., supra, 27 Cal.App.4th at p. 575.) She argues the Autumn H. standard renders the exception meaningless because "the Legislature prefers adoption to legal guardianship or long-term foster care; therefore, a permanent plan of legal guardianship or long-term foster care will never outweigh the benefits of adoption." Instead, she asserts, under a proper statutory interpretation, parents need show only that they have maintained regular visitation and that the child would derive some benefit from continuing the parental relationship for the exception to apply.
In Jasmine D., supra, 78 Cal.App.4th at page 1348 we rejected the almost identical statutory interpretation Mother forwards here. We explained: "The Legislature emphasized the exceptional nature of all the circumstances identified in section 366.26, [former] subdivision (c)(1) [] by revising the statute in 1998 to require the court to find not only that one of the listed circumstances exists, but also that it provide 'a compelling reason for determining that termination would be detrimental to the child.' (Stats 1998, ch. 1054, § 36.6.) This amendment . . . makes it plain that a parent may not claim entitlement to the exception . . . simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Id. at p. 1349.) Indeed, such a formulation is antithetical to the legislative intent that adoption is preferred unless exceptional circumstances exist. (In re Logan B. (2016) 3 Cal.App.5th 1000, 1011-1012; see In re Casey D. (1999) 70 Cal.App.4th 38, 51.) We also observed that "Autumn H. has been widely followed by the Courts of Appeal, and [is] consistent with the statutory scheme and its interpretation by our Supreme Court." (Jasmine D. at p. 1347.) For the same reasons, we decline to depart from it now.
Effective January 1, 2008, the legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats.2006, ch. 838, § 52.) Former section 366.26, subdivision (c)(1)(A) is now section 366.26, subdivision (c)(1)(B)(i).
Mother alternatively argues it is error to reject the beneficial relationship exception simply because the parent has not complied with his or her court-ordered case plan. While it is true that Mother did not comply with substantial components of her case plan, that is not why the court rejected the beneficial relationship exception. To the contrary, the court determined Mother did not have a parental relationship with K.V. that promoted his well-being to such a degree that it outweighed the benefits of adoption. While the court took Mother's failure to reunify into account as part of that balancing, it explicitly considered all of the evidence. There was no error.
DISPOSITION
The order terminating Mother's parental rights is affirmed.
/s/_________
Siggins, J.
We concur:
/s/_________
McGuiness, P.J.
/s/_________
Pollak, J.