Opinion
H036749
10-26-2011
In re G.D., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL AND EMPLOYMENT SERVICES, Plaintiff and Appellant, v. T.D., Defendant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. J41302)
Monterey County Department of Social and Employment Services (Department) challenges the juvenile court's order following a Welfare and Institutions Code section 366.26 hearing at which the juvenile court selected guardianship as the permanent plan for G.D. (child) (born 2003). It contends that no substantial evidence supports that T.D. (mother) established the beneficial-parental-relationship exception to termination of parental rights. We disagree and affirm the order.
Further unspecified statutory references are to the Welfare and Institutions Code.
LEGAL BACKGROUND AND SCOPE OF REVIEW
Section 366.26 sets forth the procedure for permanently terminating parental rights concerning a child who has been removed from parental custody and declared a dependent child of the juvenile court. The statute states that the court shall terminate parental rights if it "determines . . . by a clear and convincing standard, that it is likely the child will be adopted." (§ 366.26, subd. (c)(1).) If the court determines it is likely the child will be adopted, certain prior findings by the juvenile court (e.g., that returning the child to the physical custody of the parent would create a substantial risk of detriment to the physical or emotional well-being of the child) shall constitute a sufficient basis for the termination of parental rights unless the juvenile court finds one of six specified circumstances in which termination would be detrimental. (Ibid.)The first of these circumstances states: "The 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 burden of proof is on the party seeking to establish the existence of one of the exceptions to show that termination of parental rights would be detrimental to the child. (In re C.B. (2010) 190 Cal.App.4th 102, 122.)
Adoption is the strongly preferred permanent plan for dependent children who have not reunified with their parents. "After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child. A child has a fundamental interest in belonging to a family unit, which includes a 'placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]' [Citation.] At the selection and implementation stage, the court has three alternatives: adoption, guardianship or long-term foster care. [Citation.] In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. . . . 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. (1999) 77 Cal.App.4th 799, 808-809.)
While there are statutory circumstances under which guardianship may be preferred over adoption, the situation must be compelling. "Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances [in section 366.26, subdivision (c)(1)(B)] provides a compelling reason for finding that termination of parental rights would be detrimental to the child. . . . The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R. (2003) 31 Cal.4th 45, 53.)
The beneficial-parental-relationship exception to adoption was explored thoroughly in the case of In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.),which remains the leading decision interpreting the exception. The father in Autumn H. was a physically abusive alcoholic with limited parenting skills. Following his failure to reunify, he visited the child on about half of the opportunities offered, seeing her once every two weeks for about an hour without ever taking her from the foster home. He showed little interest in the child when not visiting and was viewed by her as a playmate or friendly visitor, not as a parent. The father objected to the termination of his parental rights, contending that he had maintained regular visitation and his daughter would benefit from continuing the relationship.
In affirming the order terminating parental rights, the court described the application of the beneficial-parental-relationship exception: "In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the 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. [¶] Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The law governing application of the beneficial-parental-relationship exception is for the edification and guidance of the juvenile court and not a standard for appellate review.
Case law is divided as to the correct standard for reviewing an order determining the applicability of an exception to termination. Most published decisions have reviewed such orders for substantial evidence. (See, e.g., In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; Autumn H., supra, 27 Cal.App.4th at p. 576.) Others have applied an abuse of discretion standard. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.); In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) We believe that both standards play a role.
The beneficial-parental-relationship exception requires a parent to show that he or she has had regular visitation and contact with the child and that the child would benefit by continuing the relationship. These are essentially factual determinations that should be upheld on appeal if supported by substantial evidence. On the other hand, the ultimate decision as to whether these factors outweigh the benefit of adoption; i.e., whether there is "a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)), is a "quintessentially discretionary determination." (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In any event, the "practical differences between the two standards of review are not significant," and as a reviewing court, we should interfere only if the facts, viewed in the light most favorable to the judgment, were such that no reasonable judge could have taken the challenged action. (Ibid.) "[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We "affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion." (Ibid., italics added.)
We therefore do not recount the extensive, competing testimony in this case. We focus on the evidence supporting the juvenile court's order.
BACKGROUND
We are considering this case together with case No. H036689 for purposes of oral argument and disposition. Case No. H036689 is an appeal by mother and child from the juvenile court's order denying mother's section 388 petition to modify. We have recounted a detailed procedural background in our opinion in case No. H036689. In this opinion, we sparingly repeat the background where necessary while emphasizing different aspects due to the differences in the procedural postures of the cases.
The Department filed the underlying dependency petition on September 6, 2006, pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) because police officers found child and two of his three older brothers (ages 13, and nine) alone in the early morning hours of September 3 in filthy living conditions. Though three years old, child was not yet eating solid foods. He was small for his age, was developmentally delayed, and required braces for his ankles. Doctors at Lucile Packard Children's Hospital had diagnosed him with microcephaly, hypospadius, speech delay, and hypotonia of the lower extremities.
On October 20, 2006, the juvenile court declared child a dependent, removed him from his parents' custody, and ordered reunification services.
On June 7, 2007, mother was convicted of one count of felony child endangerment and placed on probation.
On February 29, 2008, upon the Department's recommendation, the juvenile court returned child to mother's custody and ordered child welfare services for mother. The father's reunification services had been terminated by this point. The Department's report noted: "It has become obvious that the mother . . . can meet her son's very special needs."
On September 19, 2008, at a semi-annual review hearing, the Department reported that "much has gone right since [child's] return to his mother's care. While working full time, she insures that [child] makes his medical appointments, goes to school and she follows the suggestions on his IEP. In the home, or in different community settings she provides one-to-one supervision and he is always in her sight. The mother has followed through with suggestions to increase his communication. [Child] has become more interactive with his environment and the people in it since [he] has return[ed] home due to his mother's care."
On March 13, 2009, at a semi-annual review hearing, the Department reported that child "does demonstrate real delight and affection in his interaction with his mother and brothers." It added: "Through exploring the website 'Autism Speaks,' [mother] keeps up with the latest advances and advice, since many of the strategies used for children with autism also apply to children with other developmental delays. She follows through with all education meetings and [child's] progress at school. She is in frequent contact with school staff and they, in turn, are impressed with their [sic] knowledge of her son. The mother understands the interventions to use at home to encourage communication and development. She is aware of the specialized services the SARC provides such as respite, and the agencies that provide these services."
On September 11, 2009, at a semi-annual review hearing, the Department reported: "Since that return home, it has been observed that [mother] has become an expert on her son, searching the Internet for information that would apply to his disability and applying those techniques at home. She has been observed to be an effective advocate for [child] at school and followed through with his medical needs."
On January 14, 2010, the Department filed a supplemental dependency petition (§ 387) seeking to remove child from mother's custody. The petition alleged that mother had been found in possession and under the influence of alcohol in violation of her probation and dependency plan requirements. The Department recommended removal of custody and denial of reunification services to mother.
On March 5, 2010, the juvenile court found the allegations true, removed child from mother's custody, denied reunification services, and set a selection and implementation hearing (§ 366.26) for July 2.
On June 17, 2010, the Department filed a report for the section 366.26 hearing that recommended adoption as the permanent plan. It noted that child had been placed with his previous foster parents following the second removal from mother's custody on January 15. It added that the foster parents had provided child care while child was living with mother and "have consistently demonstrated their commitment to the child by providing a stable and safe environment and by lovingly attending to his needs. The child is thriving in their protective, loving care and he is happy and comfortable in their home. The family is looking forward to finalization should adoption be the ordered plan." It also opined that "Contact between [child] and his mother may be in his best interest as long as [mother] remains in recovery and is respectful of the authority of the prospective adoptive parents."
After various continuances, the juvenile court reset the 366.26 hearing for January 10, 2011.
On January 3, 2011, mother filed a petition to modify the March 5 order so as to place child with her. The petition alleged that circumstances had changed because mother had graduated from a drug and alcohol rehabilitation program, taken parenting courses, and actively participated in Alcoholics Anonymous meetings.
The juvenile court set a hearing on mother's petition for January 10, 2011, to be heard before the section 366.26 hearing. The parties agreed that the evidence received at the section 388 hearing could be considered for the section 366.26 hearing. As relevant here, the juvenile court heard the following testimony.
A clinical psychologist who conducted a bonding study in December 2010 testified that, when she observed mother and child together, child seemed very comfortable with mother and enjoyed being in her company. She opined that mother was genuine and authentic with child and there existed love and affection between the two. She observed mother comforting child in a style "that's been done repeatedly and is accustomed to doing and becomes automatic." She opined that child had a significant positive emotional attachment to mother (and to his two youngest brothers). Her written report in evidence noted the following: (1) "Next [mother] brought [child] into the room. He is a well-nourished and well-groomed boy of seven years old, although he appears much smaller than his age. He did not appear uncomfortable in the unfamiliar environment, and he quickly and easily began to interact with his mother. During much of this time [child] sat on the couch, and [mother] sat next to him, frequently facing him and talking to him almost continuously. They were easily affectionate with each other. She had brought some toys and pictures that he liked, and they interacted in what appeared to be familiar play routines. Clearly this is a less than normal situation, as she was certainly aware that she was being observed and therefore would want to present a positive picture of herself and [child]; nevertheless, I found her to be quite patient, loving, and playful with him and to be familiar with his likes and dislikes. They engaged easily with each other, and [child] appeared to find pleasure in the games and interaction with his mother"; and (2) "It is obvious that strong bonds exist on the part of [child's] mother and brothers. The three of them verbalize and demonstrate deep attachment to [child], regard for his well-being, protectiveness, and solace."
The Department's adoption unit social worker testified that, when she observed mother and child together, child recognized and was glad to see mother. She added that mother held and nurtured child while reciting nursery rhymes and playing games and child reacted positively to a good quality of interaction. She opined that child had a bond with mother.
The juvenile court heard the above and conflicting testimony over several days. It denied mother's petition to modify on March 9, 2011, after reviewing the relevant evidence during a dialogue with the parties. On March 14, the parties appeared for the section 366.26 hearing. They stipulated that child was adoptable and that mother had maintained regular visitation with child. After argument and without offering further evidence, they submitted the issue of whether child would benefit from continuing the relationship.
Mother argued: "I think the evidence is clear that [child] would benefit from the continued relationship with his mother, despite the fact that we have heard different versions of his ability to respond with emotions or his knowledge of his surroundings. I think the evidence was shown by various witnesses that indeed [child] has a parent/child bond with [mother]."
Child argued: "I think it's appropriate to go back to the very beginning of this case in 2006. [Child] was cared for by his mother for the three years prior to his removal. And he spent one year [during the dependency] in her care. [¶] So he's seven, going on eight. So four years out of the last seven, a significant portion of his life, has been with his mother. [¶] As indicated in our trial brief, the mother has established a parental role from the very beginning. She was the person who provided the support for the family. [¶] . . . [¶] But insofar as a parental role is concerned, the evidence on behalf of the mother is she did see to his medical care. She did see to his education. She provided for stimulation."
The Department argued that, under Autumn H., the juvenile court must order adoption absent a compelling reason. It urged that there was no "evidence that [mother] occupies a significant parental role with her child." It discounted the testimony of the psychologist by pointing out that (1) the juvenile court had qualified the psychologist as an expert in psychology but rejected her as an expert in bonding and attachment, and (2) the psychologist had at one point characterized the mother-child relationship as a loving adult and a dependent child where mother could have been an aunt. It urged that child had special needs, which made his need for permanency and stability more compelling. It noted that child's foster family had taken care of child on overnights and school breaks even when child was in mother's custody. And it highlighted that social workers had reported no detriment or negativity during the times when child had no contact with mother. It opined that the evidence did not rise to a level to defeat adoption.
The juvenile court explained as follows.
"The evidence in this case does show that [mother] was far more than a friendly visitor to [child]. She did care for him for years. She did look after him medically, emotionally, and physically. [¶] Clearly, there were disagreements by some as to whether the research she did on the internet or the work she did with respect to nutrition is what others would have done. [¶] But the evidence before the Court does show by a preponderance that she did look after him. She, in this Court's view, based on the evidence, is far more than a friendly visitor to [child]. As noted, she's cared for his physical needs, his nutritional needs, comforted him, and offered affection and stimulation. [¶] So for all of those reasons, the Court does find at this time that the parental rights of [mother] shall not be terminated because the [beneficial-parental-relationship] exception . . . applies; that it would be detrimental to [child] to terminate [mother's] parental rights because of her continuing contact with him and the fact that he would benefit from . . . continuing the relationship."
The juvenile court then ordered guardianship as the permanent plan.
DISCUSSION
Preliminarily, the Department argues that the juvenile court failed to make express findings. (§ 366.26, subd. (c)(1)(D) ["If the court finds that termination of parental rights would be detrimental to the child pursuant to [one of the exceptions], it shall state its reasons in writing or on the record."].) We disagree.
The parties stipulated that mother had maintained regular visitation with child. The only issue for decision was whether child would benefit from continuing the relationship with mother. Addressing this issue, the juvenile court articulated on the record that mother cared for child medically, emotionally and physically. These are reasons why child would benefit from continuing the relationship with mother. The Department does not propose why those reasons are insufficiently expressed. It urges that the juvenile court's finding that mother "had cared for [child] for many years was insufficient to support its rejection of adoption as a permanent plan." But this argument simply disagrees with the juvenile court's decision rather than shows a failure to make express findings. (See In re J.S. (2011) 196 Cal.App.4th 1069, 1078 ["Although the court made clear which option it was choosing, it failed to make any formal finding directed to this choice."].)
The Department contends that the juvenile court's decision is not supported by substantial evidence. We disagree.
The evidence from the psychologist and social worker attesting to the bond between child and mother supports the juvenile court's finding that child would benefit by continuing his relationship with mother. So does the evidence that mother had cared for child for four of seven years. So does the evidence reported by the Department over the course of the dependency. And so does the absence of any negative effect of interaction between mother and child. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1532-1533, 1537-1538 [upholding finding that beneficial relationship exception applied where twin boys, detained four months after birth, were affectionate with mother during visits and witnesses testified about good relationship between mother and children]; Autumn H., supra, 27 Cal.App.4th at pp. 575-576 ["The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond."].)
We recognize that there is evidence in the record, highlighted by the Department in its briefs, that conflicts with the juvenile court's ruling. And we recognize that the Department makes much of the psychologist's qualifications, particularly the lack of expertise as an expert in bonding. However, these types of arguments effectively ask us to reweigh the evidence. If substantial evidence exists, "it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874, italics omitted.) Although the juvenile court might have reached a different conclusion based on the evidence before it, the record contains substantial evidence supporting the juvenile court's finding that mother proved the beneficial-parental-relationship exception.
In a related point, the Department assails the juvenile court's findings by arguing that they conflicted with the findings on mother's section 388 petition to modify, which were based on the same evidence. The Department's analysis is erroneous.
The issue in this case is not whether the juvenile court erred in finding that it could not return child to mother's care, but whether mother met her burden of showing that severing her parent-child relationship with child would greatly harm child. The two inquiries are not the same. When a section 388 petition seeking to regain custody is denied and a section 366.26 hearing is heard, the juvenile court has already determined that the child cannot safely be placed in the parent's home. Nevertheless, section 366.26 specifically contemplates that, in some situations, a child who cannot be placed in the parent's home can still be harmed by the termination of parental rights. Stated another way, that a child cannot be safely returned to a parent does not always negate the possibility of a beneficial relationship. Were it to be otherwise, no parent could meet the burden to prove the exception, given that in all instances in which the juvenile court is considering the beneficial-parental-relationship exception, the juvenile court has already found that the child cannot be returned to the home.
Thus, for example, in the case of In re Amber M. (2002) 103 Cal.App.4th 681, 690, the court reversed a termination order and remanded for a new hearing on the beneficial-parental-relationship exception after concluding that the common theme from the evidence was that the children had a primary bond with their mother even though the mother was not ready for the children's return to her custody.
DISPOSITION
The Welfare and Institutions Code section 366.26 order is affirmed.
Premo, J. WE CONCUR:
Rushing, P.J.
Elia, J.