Opinion
A149001
05-19-2017
In re AMELIA H. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. Nos. 3943-DEP & 3944-DEP)
S.P. (Mother), mother of eight-year-old Amelia H. and seven-year-old Lawrence H., appeals from the juvenile court's orders terminating her parental rights and ordering adoption as the permanent plan, pursuant to Welfare and Institutions Code section 366.26. Mother contends these orders must be reversed because the court erred when it found she had failed to establish the applicability of the beneficial parent-child relationship exception to adoption. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On June 7, 2012, the Sonoma County Human Services Department (Department) filed an original petition, pursuant to subdivisions (a) and (b) of section 300, alleging that then three-year-old Amelia and two-year-old Lawrence were at risk of suffering serious physical harm as a result of their parents' domestic violence and substance abuse. The petition described an incident in which the Mother sustained an injury to her eye and another incident in which the presumed father (Father) had physically assaulted Mother in the presence of the children while she was driving, nearly causing an accident. Both parents had arrests and/or convictions related to their substance abuse.
Father is not a party to this appeal, and will be discussed only as relevant to Mother's appeal.
On June 8, 2012, the juvenile court ordered the two children detained, along with three older half siblings who also lived in the home.
The three half siblings, who are also Mother's children, are not directly involved in this case, and will be discussed only as relevant to the present case.
In the jurisdiction/disposition report filed on July 6, 2012, the social worker reported that Amelia and Lawrence had been placed in foster care. They were visiting with their parents, and could be "whiny and tearful" at the end of visits. They were always thrilled to see their older sisters during sibling visits. The social worker described Mother and Father as "two immature, emotionally labile and volatile individuals whose lives, individually and together appear to be unraveling. . . . They form a united front in their denial of the depth of their relationship dysfunction and, therefore, have yet to confront the reality and root of the problem." Mother acknowledged that Father was loud and they argued, but denied that he had ever hit her. She also denied that she had a current substance abuse problem.
The Department recommended that the children remain in out of home placement and that the parents receive reunification services.
Following the August 15, 2012 combined jurisdiction and disposition hearing, the parents submitted after the court struck the petition's section 300, subdivision (a) allegations. The court then sustained the amended petition and ordered reunification services for both parents.
In the six-month status review report filed on February 7, 2013, the social worker reported that Mother had participated in a psychological evaluation with Dr. Gloria Speicher, who noted that Mother appeared to be "resourceful and motivated," and recommended that she participate in individual therapy and parent education. Mother had begun individual therapy and had successfully completed a 16-week domestic violence program. She was participating in substance abuse treatment, although she missed a number of random drug tests and tested positive for methamphetamine on one occasion. Mother was visiting with Amelia and Lawrence twice a week and the children seemed to enjoy the visits.
The Department recommended that the court offer additional reunification services to Mother, but that it terminate Father's reunification services.
In an addendum report filed on April 16, 2013, the social worker stated that, due to new information the Department had received, it now wished to recommend that Mother's reunification services be terminated. Mother had tested positive for methamphetamine and cocaine on March 14, and for cocaine again on March 26. She failed to test on April 10. Mother told the social worker that she did not use drugs, but that the dirty tests were the result of "her handling illicit drugs in their preparation for selling and not through ingestion." Mother also had to start her substance abuse group over again due to several absences and noncompliance; her recent behavior in the group had been " 'consistently erratic.' "
Mother subsequently provided a letter stating she had enrolled in a residential treatment program on May 14, 2013.
On May 17, 2013, at the conclusion of the six-month review hearing, the court found that the children could not be safely returned to their parents due to the parents' failure to participate regularly and make substantive progress in their treatment programs and services. The court therefore terminated both parents' reunification services and scheduled a section 366.26 hearing.
At the request of Mother's counsel, the court ordered a bonding study to assess the relationship between the children and Mother.
On October 4, 2013, Psychologist Gloria Speicher prepared a report regarding the bond and attachment between Mother and the two children. In her evaluation, Dr. Speicher stated that records of visits reflected positively on Mother's parenting abilities and the children's level of comfort and ease with her. The children had "continued to be consistent in their distress and dismay at separation. They repeatedly ask to have more time with their mother and to go home with her." Dr. Speicher found that Lawrence was "very clearly strongly attached to his mother" and was "experiencing negative effects of the separation. He continues to have some problems with his speech and this may indicate regressive responses to the trauma of separation . . . ." Amelia also had "a strong and positive bond with her mother" and "continue[d] to exhibit the negative effects of separation." She had regressed and over time her "regressive behaviors became more focused on attention deficits and aggressive actions. She continued to request that she be able to come home with her mother. Her behaviors attest to the difficulty she has experienced in adapting to her changed circumstances."
Dr. Speicher concluded that both children had a parent-child relationship with Mother, and had "a substantial and positive attachment to [her] to the degree that [they were] currently being greatly harmed by the continued separation and [would] continue to suffer long term detriment to [their] mental health and well-being if the parent/child relationship were terminated. Continuing the parent/child relationship between [the children and Mother] promote[d] the well-being of [the children] to a degree that outweighs the well-being that [they] would derive by being adopted." (Italics omitted.)
In the section 366.26 report filed on October 29, 2013, the social worker reported that Mother had consistently visited with the children, who were described as " 'comfortable' " during visits. Although Mother was " 'affectionate and loving' " during visits, concerns about her behavior were also noted, with one visit supervisor suggesting that Mother could benefit from working with a parent educator and taking classes to help her control her anger. The visits notes reflected that following the most recent visit, on October 14, the "children were ready to go at the end of the visit and easily separated from the mother."
Lawrence and Amelia had been in their foster-adopt home for 13 months and a "warm, trusting relationship" had developed between the children and the prospective adoptive parents, who had an approved home study and were committed to adopting them. The Department concluded the children were likely to be adopted and recommended that parental rights be terminated and a plan of adoption be ordered.
At the section 366.26 hearing, which took place on January 10 and 13, 2014, Social Worker Patricia Ramano testified that Mother plainly loved the children very much and they enjoyed their visits with her. Nevertheless, she believed the children were attached to their prospective adoptive parents, with whom they appeared to be "very comfortable and secure."
Dr. Speicher testified at the hearing as an expert witness. She believed Amelia and Lawrence had a "strong attachment" to Mother, they derived significant benefits from the relationship, and it would be detrimental to them to sever their bond with Mother.
At the conclusion of the hearing, the court "concur[red] with the analysis" in Dr. Speicher's report and found that there was an emotionally positive and significant relationship between Mother and the children. Therefore, based on the evidence presented, the court found "the benefit of the continued relationship between mother and these minor children does outweigh the benefit for an adoption." The court therefore directed the Department to determine whether legal guardianship or long term foster care was the most appropriate placement.
The court rejected Mother's argument related to the sibling relationship exception.
In a status review report filed on June 26, 2014, the social worker reported that Amelia and Lawrence had been removed from their foster-adopt home after 16 months because their prospective adoptive parents decided they were unable to provide a home for the children under a plan of long term foster care. The children were first placed in the same emergency foster home in which they had been placed at the beginning of the dependency and then, on May 31, 2014, they moved to a new foster home, where they were adapting well. This was the fourth time in two years they had been moved.
The social worker described Amelia "as a friendly, engaging and caring five year old girl," and Lawrence as "a spunky little guy with a kind spirit." Both appeared to be developmentally on track. They were "resilient children who have adapted to the changes imposed on them as dependent children with healthy coping strategies supported by sensitive and responsive foster parents."
Mother had participated in two supervised visits with the children during the reporting period, in March and April 2014, after both of which the children returned to the foster mother without incident. The social worker believed that they enjoyed visits with Mother, "yet do not fully understand her role in their lives." The children also continued to enjoy visits with their older half siblings and the caregivers understood the importance of continued regular contact between the siblings.
The Department recommended that the children remain in a planned permanent living arrangement.
At the July 10, 2014, post-permanency review hearing, the court ordered that the children continue in long term foster care.
On September 17, 2014, Mother filed a section 388 petition asking the court to increase visitation to four hours, every other week. At a September 24 hearing, Mother informed the court that the parties had come to an agreement and Mother would have monthly visits of one and one-half hours.
Mother included with her petition a letter from Dr. Speicher, who recommended visits of one to two hours, more than once per week.
In a December 29, 2014 status review report, the social worker reported that the children continued to reside in the foster home in which they were placed in May of that year. It was reported that Amelia loved school and was "within norms" emotionally and behaviorally. She did seem to be experiencing difficulty understanding her circumstances and had expressed fear that she would be moved from her current home. Lawrence was a friendly, outgoing boy. There were, however, growing concerns about his fine motor skills and he appeared to be overly affectionate with adults he had just met. Mother had been participating in monthly visits with the children, and the children had also continued visits with their siblings.
The social worker related that the children "have thrived in foster care, yet are becoming increasingly aware of their status and asking questions regarding their future." The Department believed that they deserved a permanent and stable home, and therefore recommended that a section 366.26 hearing be set.
Following a February 19, 2015 hearing, the court scheduled another section 366.26 hearing.
On April 23, 2015, the court denied the Department's motion for a bonding study.
In a May 27, 2015 section 366.26 report, the social worker related that when Mother visited the children, she routinely brought food and gifts and interacted appropriately with them, although during one visit it was noted that she failed to set boundaries or redirect the children's boisterous behavior. Amelia had begun individual therapy after she began to frequently ask her foster parents and the social worker when she would be adopted and stated that she did not want to visit with Mother. It was believed that Lawrence could have attachment problems, which may need to be addressed with therapy as he developed.
The social worker related that the children were developing strong attachments to their foster family, with whom they had lived for one year. They called the foster parents " 'mommy and daddy,' " and their three foster siblings (the foster parents' biological children) " 'brothers and sisters.' " They sought out the foster parents for reassurance and to have their needs met, and were fully integrated into the family.
The foster parents were observed to be warm and nurturing caregivers to Amelia and Lawrence. They were "equitable in giving attention to Amelia and Lawrence and [their] biological children," and treated them "with respect, establishing rules and being consistent." The foster parents were interested in providing a permanent home for the children. They understood that adoption was not an option at that time, and were willing to be their legal guardians "in the hope that this arrangement will provide them with . . . stability throughout the remainder of their childhood."
The Department recommended that a permanent plan of legal guardianship be ordered for the children.
The social worker related in the report that the court had terminated Mother's parental rights as to Amanda and Lawrence's three older half siblings, who were placed with their maternal aunt under a plan of adoption.
At the July 27, 2015 section 366.26 hearing, counsel for the Department noted that Mother had missed several visits and had arrived late for others, and requested that visitation be changed to every three months. The court kept the order for monthly visitation, but said that if Mother missed any future visits, the order would be changed to every three months. The court then changed the permanent plan to legal guardianship.
In a status review report filed on January 14, 2016, the social worker reported that Amelia and Lawrence remained with their legal guardians and their three biological children, with whom they had lived for 20 months. Amelia continued to love school and was becoming a confident and independent child. Although she had been reassured that she would be staying with her legal guardians, she continued to struggle with the fact that she was not being adopted and did not have the same last name as her foster family. The social worker spoke with her therapist, who found Amelia to be a well-adjusted child, despite her traumatic history, which he attributed to the healthy parent/child bond that existed between her and her legal guardians. The therapist did not believe she currently needed additional counseling services. Lawrence was a kind, spirited six-year-old boy who made friends easily and had solid peer relationships at school and church. He had been diagnosed with ADHD and prescribed a low dose of Ritalin. He was also being tested to ascertain if he had a mild case of cerebral palsy. There were no longer any concerns about Lawrence being overly affectionate with adults.
Mother had participated in three visits over the previous six months, in September, October, and November. Before the September visit, both children displayed a significant amount of anxiety. Amelia did not want to go to the visit and did not understand why she had to do so. Lawrence acted out during the visit. The children did not seem as anxious during the October and November visits. The visit supervisor continued to report that Mother had " 'zero parenting abilities.' " The children also continued to visit with their older half siblings.
The social worker believed that Mother loved Lawrence and Amelia and had tried to stay connected with them. However, over the past year, she had made it to only 5 of 12 scheduled visits. The visits were described as " 'wild and crazy' " due to Mother's inability to set limits or model appropriate behavior. The social worker expressed concern that Mother had never asked about the children's health, school, or extracurricular activities. The children continued to ask when they would be adopted. The Department believed the children needed and deserved the permanency of adoption, and requested that the court set a section 366.26 hearing.
At a February 4, 2016 status review hearing, the court adopted the Department proposed findings and orders, and scheduled another section 366.26 hearing for May 26.
In the Department's May 13, 2016 section 366.26 report, the social worker related that Mother had been arrested in January, was convicted of "HS 11364(a)" (possession of paraphernalia used for injecting or smoking a controlled substance) in February, and was ordered to accept a referral to a treatment program. The children continued to have pre-visit anxiety and to question why they had to visit with Mother. During an April visit with the social worker, Amelia said she wanted to talk about adoption, and Lawrence "chimed in, 'I want to be adopted.' " When the social worker asked what would change if they were adopted, Lawrence said, " '[Mother] wouldn't be able to take me away.' When asked if they were worried about [Mother] taking them away, both children stated 'yes.' "
On July 11, 2016, the Department filed two police reports with the court, describing two incidents—one in January and the other in May—in which Mother was arrested for drug related offenses.
The children had lived for almost two years with the prospective adoptive parents, who considered Amelia and Lawrence their children and were sensitive to their need for permanency through adoption. The children had strong emotional ties to their guardians and saw themselves as an integral part of the family. Their guardians, who also had three biological children, had "been observed to be warm, nurturing caregivers to Amelia and Lawrence and [were] providing them with a stable environment with structure and [a] reliable routine of school, mealtimes, rest/activity, and social interaction." They understood and were willing to accept the responsibilities of adoptive parents.
The Department recommended that the parental rights of Mother and Father be terminated so that the children could be adopted.
The section 366.26 hearing took place on July 18, 2016. Mother testified that it took her three to four hours to drive to visits with the children. She had most recently visited with them in November 2015. The visit "was great," and at the end of the visit, Lawrence said he wanted to go home with her, and Amelia "just looked sad and didn't want to let go."
The social worker also testified at the hearing. In addition, the maternal aunt testified about the children's visits with their older half siblings and confirmed that she was willing to continue to have sibling visits occur after parental rights were terminated because she wanted to keep the sibling bond, which she believed was crucial for Amanda and Lawrence's development.
At the conclusion of the hearing, the court found that Mother had not shown that the parent-child relationship and sibling relationship exceptions to adoption applied. It therefore found that the permanent plan would be adoption and terminated the parental rights of both parents.
The parties had previously stipulated that the children were adoptable.
On August 4, 2016, Mother filed a notice of appeal.
DISCUSSION
Mother contends the juvenile court erred when it found she failed to establish the applicability of the beneficial parent-child relationship exception to adoption.
When the court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds by clear and convincing evidence, pursuant to one of the statutorily-specified exceptions, "compelling reason[s] for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The parent has the burden of proving detriment under any of these exceptions. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).)
At issue here is the beneficial-parent child relationship exception, which applies if the juvenile court finds by clear and convincing evidence that the "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).)
Appellate courts have differed on the correct standard of review for determining the applicability of a statutory exception to termination of parental rights. (Compare, e.g. In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [applying substantial evidence standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [applying abuse of discretion standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 (K.P.) [applying substantial evidence standard to whether beneficial parent-child relationship exists and applying abuse of discretion standard to whether that relationship provides a compelling reason to apply exception].) Although the "practical differences" among these various standards of review "are not significant" (Jasmine D., at p. 1351), we believe that use of the hybrid standard of review, which incorporates both the substantial evidence and the abuse of discretion standards, is appropriate when reviewing juvenile court determinations regarding the statutory exceptions to adoption. (See In re J.C. (2014) 226 Cal.App.4th 503, 530-531; K.P., at pp. 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
In the present case, Mother contends that "[i]n 2013, Dr. Gloria Speicher concluded that the children were emotionally attached to [Mother] and that it would be permanently damaging to the children to terminate parental rights. [Citation.] There is nothing in the record to show that this conclusion was rebutted or attenuated in any way by the passage of time, as [Mother], with some exceptions, consistently and regularly visited the children over the course of the dependency." We disagree.
First, the evidence shows that Mother did not satisfy the first prong of section 366.26, subdivision (c)(1)(B)(i), in that she did not maintain regular visitation with the children. By the time of the July 2015 section 366.26 hearing, at which the court changed the permanent plan to legal guardianship, Mother had missed several of her monthly supervised visits and arrived late for others. Even after the court stated that if she continued to miss visits, it would change the order from monthly visitation to visits every three months, as of January 2016, Mother had participated in only three monthly visits over the previous six months, in September, October, and November. Thus, in the year before the court terminated her parental rights, Mother, for various reasons, had participated in only 5 of 12 scheduled monthly visits. Substantial evidence supports the court's implicit finding that Mother had not "maintained regular visitation and contact with the child[ren]," as is required to establish the first prong of the parent-child relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i); see K.P., supra, 203 Cal.App.4th at pp. 621-622.)
Moreover, even had Mother been able to show that she continued to regularly visit the children during the year before the court terminated her parental rights, we would nevertheless conclude the juvenile court reasonably found Mother had not satisfied the second prong of section 366.26, subdivision (c)(1)(B)(i), in that she did not establish that a continued relationship with her would benefit Lawrence and Amelia to such a degree that termination of parental rights would be detrimental to them.
In C.F., supra, 193 Cal.App.4th 549, the appellate court "interpreted the phrase 'benefit from continuing the relationship' in section 366.26, subdivision (c)(1)(B)(i) to refer to a 'parent-child' relationship 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 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.' [Citation.]
"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. . . .' [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, to establish the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 555, quoting Autumn H., supra, 27 Cal.App.4th at p. 575, fn. omitted.)
"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." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) "Application of this exception is decided on [a] case-by-case basis and a court takes into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between parent and child is positive or negative, and the child's particular needs." (In re Scott B. (2010) 188 Cal.App.4th 452, 471 (Scott B.), citing Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Here, the record reflects that the children were removed from Mother's custody in June 2012, when Amelia was three years old and Lawrence was two years old. By the time of the third section 366.26 hearing in July 2016, when Amelia was seven and Lawrence was six, they had been out of Mother's custody for over four years, more than half of their lives. (See Scott B., supra, 188 Cal.App.4th at p. 471.)
Mother remains focused on the October 2013 report of Dr. Speicher, in which she concluded the children were being harmed by the separation from Mother and that the benefit of continuing the parent-child relationship outweighed the benefit the children would gain from being adopted. Mother, however, fails to acknowledge the extent to which the children's situation had changed in the almost three years that had passed since Dr. Speicher's evaluation. The court initially relied on Dr. Speicher's conclusions in January 2014, when it declined the Department's request to terminate parental rights and order a plan of adoption. This resulted in the children's removal from a foster-adopt home after 16 months, in May 2014, when the prospective adoptive parents decided they could not provide a home for the children under a plan of long term foster care.
By the time the court changed the permanent plan to legal guardianship in July 2015, the children had lived with their new foster-adopt parents for over a year; they were thriving in that placement and their relationship with Mother had changed significantly. The children were developing strong attachments to their foster family and were now fully integrated into the family. The foster parents were warm and nurturing caregivers to Amelia and Lawrence. Amelia had begun therapy after she began to frequently ask when she would be adopted and objected to visits with Mother. Mother continued to have substance abuse issues and was missing some of her supervised visits.
At the time the court ordered a second section 366.26 hearing in February 2016, Amelia was excelling at school and both children were well-adjusted and thriving in their placement. Amelia continued to struggle with the fact that she was not being adopted and did not have the same last name as her foster family. Both children had displayed significant anxiety before a September 2015 visit. Amelia's therapist, who did not believe Amelia needed further counseling, described her as a well-adjusted child despite her traumatic history, which he believed was due to the healthy parent-child bond that existed between her and her guardians. A visit supervisor described Mother as continuing to have " 'zero parenting abilities.' "
In the months before the July 2016 section 366.26 hearing, it remained clear to the social worker that Mother loved Lawrence and Amelia and had tried to stay connected with them. However, she had suffered three drug-related arrests and continued to miss some visits. The children also continued to have pre-visit anxiety and to question why they had to visit with Mother. Both children had expressed the wish to be adopted by their current caregivers, and Lawrence had stated that if he was adopted, " '[Mother] wouldn't be able to take me away.' " When the social worker "asked if they were worried about [Mother] taking them away, both children stated 'yes.' " The children were doing extremely well in their placement, where they had lived for two years. They had strong emotional ties to their guardians and saw themselves as an integral part of the family. The guardians, who were committed to adopting the children, were providing them "with a stable environment with structure and [a] reliable routine of school, mealtimes, rest/activity, and social interaction."
This cited evidence plainly shows that over the months and years after Dr. Speicher's evaluation, as Mother continued to be unable to overcome the issues that led to the dependency, these young children demonstrated great strength and resiliency as they adapted to their circumstances and built new parent-child relationships with their prospective adoptive parents, who have provided them with the love, safety, and stability they need and deserve after so many years of uncertainty. (See Scott B., supra, 188 Cal.App.4th at p. 471.)
Mother's assertion that there is "nothing in the record to show that [Dr. Speicher's detriment] conclusion was rebutted or attenuated in any way by the passage of time," is clearly refuted by the evidence discussed in the text, ante. --------
Accordingly, substantial evidence supports the court's implicit finding that Mother failed to establish that she currently occupies a parental role with Amelia and Lawrence that results "in a significant, positive emotional attachment" between them. (C.F., supra, 193 Cal.App.4th at p. 555; see K.P, supra, 203 Cal.App.4th at p. 622; § 366.26, subd. (c)(1)(B)(i).) Moreover, the court did not abuse its discretion when it implicitly found the children would not suffer detriment if the relationship were terminated and therefore ruled that the beneficial parent-child relationship exception to adoption did not apply. (C.F., at p. 555; see section 366.26, subd. (c)(1)(B)(i); K.P, at p. 622.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.