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In re H.H.

California Court of Appeals, Third District, El Dorado
Jan 7, 2009
No. C059132 (Cal. Ct. App. Jan. 7, 2009)

Opinion


In re H. H., a Person Coming Under the Juvenile Court Law. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. S. B., Defendant and Appellant. C059132 California Court of Appeal, Third District, El Dorado January 7, 2009

NOT TO BE PUBLISHED

Super. Ct. No. PDP20060044

BLEASE, Acting P. J.

S.B. (appellant), the mother of H.H. (the minor), appeals from an order of the juvenile court terminating appellant’s parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant makes three contentions of alleged prejudicial error in the proceedings, including a claim that the juvenile court’s denial of her petition for modification (§ 388) was an abuse of its discretion. Disagreeing with each of those claims, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2006, El Dorado County Department of Human Services (DHS) filed an amended juvenile dependency petition pursuant to section 300 on behalf of the six-year-old minor. That petition alleged appellant had been arrested twice for driving under the influence of alcohol with the minor in her vehicle. According to the amended petition, in the first incident, the minor was thrown from appellant’s vehicle due to an improper seat restraint, resulting in serious injuries to him that included multiple fractures and required the use of a breathing machine.

The juvenile court sustained the amended petition, adjudged the minor a dependent child, ordered him removed from custody, and granted reunification services to appellant. The minor shared a strong bond with appellant, and indicated he wanted to be with her. In June 2007, the minor was returned to appellant’s custody. Unfortunately, less than four months later, the minor again was removed from appellant following her third arrest for allegedly driving under the influence of alcohol. The minor was not in the vehicle at the time.

In January 2008, the juvenile court terminated appellant’s reunification services. Thereafter, on April 22, 2008, appellant filed a petition for modification, seeking the minor’s return to her custody and six months of additional services. Appellant alleged she had participated in various programs, and that her visits with the minor had been appropriate and consistent. As for why the requested modification would be better for the minor, appellant averred the minor was “very bonded” with appellant, and that she had been his primary caregiver for nearly all of his life. In support of her petition, appellant attached to the petition various documents attesting to her progress.

The minor had been in the same foster home since November 2007. DHS found he had developed a positive relationship with his foster parents and had stated his wish to be adopted by them. Noting the minor’s need for security, DHS concluded the minor was adoptable. In its report prepared for the section 366.26 hearing, DHS also stated the foster parents had indicated a willingness to arrange for post-adoption contact between the minor and appellant.

Clinical psychologist Eugene Roeder prepared a psychological evaluation of the minor and appellant. During his interview, the minor stated his “number one wish” was to have appellant back, and he indicated a desire to return to appellant’s custody. Appellant and the minor demonstrated “a very close, attached relationship,” and the minor’s foster mother acknowledged the significant relationship between appellant and the minor. Although psychologist Roeder opined that termination of the minor’s relationship with appellant would be detrimental to the minor, he also found the minor had “conflicted feelings” about that relationship, as the minor could not rely on appellant for stability. According to Roeder, the minor understood that appellant’s alcohol abuse prevented him from living with her, but the minor believed he shared some of the responsibility for appellant’s behavior, “in an unhealthy manner.”

At the June 2008 hearing on appellant’s petition for modification and on selection of a permanent plan for the minor, various witnesses testified, including psychologist Roeder and appellant. Roeder’s testimony was consistent with the contents of his written report. Roeder told the juvenile court that, despite the minor’s conflicted relationship with appellant, the minor was able to maintain a positive attachment to his foster parents. Appellant testified she had a strong bond with the minor. Appellant also stated she was involved in various programs. Moreover, appellant told the court that she had maintained approximately eight months of sobriety.

At the conclusion of the testimony on appellant’s modification petition, counsel for appellant argued that appellant had demonstrated a change in her circumstances by participating in a residential substance abuse treatment program. Moreover, according to counsel, appellant and the minor enjoyed a close relationship. In denying the petition, the juvenile court stated in part: “The issue of the 388, as all counsel knows, has there been a change of circumstances and is it in the best interest of the minor that a 388 be granted. [¶] And in reviewing the evidence in this case, in terms of the change of circumstances, it is very clear that the mother has made a very significant and committed effort towards her sobriety since October of last year. [¶] I think the distinction has been made . . . that this is a case of changing circumstances, it is not a case of changed circumstances. [¶] The most -- to the Court’s opinion, although I heard a lot of evidence on this issue, is that it is very difficult for this Court to work around, if you will, the issue that the primary treatment provider . . . says that [appellant] is doing a terrific job. And apparently she is. But that she recommends that [appellant] remain for at least two -- you counted up to three years . . . . But I am counting two to two and a half years. She is recommending she remains in a structured living environment in order to assist her with her sobriety and to avoid relapse. [¶] The fact -- very fact that the recommendation is that after one more year she is going in transitional housing, transitional housing is exactly that. The whole purpose of transitional housing is to transition people back into a nonstructured enclosed environment. The advantage of an inpatient facility is the structure and intensity of the program, but that is also one of the reasons it is -- people have a tendency not to drink in those programs at that time because of the structure and intensity of the program. [¶] I -- also based on the history of this case, I commend the mother on her obvious efforts of sobriety. But the seven and a half months, in the face of the years of alcoholism, do not convince me that this is in any way behind the mother. . . . [¶] That is not a changed circumstance, that is a changing circumstance. . . . [¶] I would also indicate that in the best interests of the minor, a more difficult issue is that this Court would indicate that, as I indicated in my discussions with the attorneys, that I think that this Court believes that . . . Benjamin D. . . . is an important case to look at in terms of they set forth a three-prong standard for best interest analysis. It is not the only analysis. [¶] But best interest analysis is very complex. And all these factors have to be considered into [sic] it. And this is just -- this is a diagnostic tool that the Court can use, and I would like to put that on the record. [¶] That I think that this is, in looking at this, this is a relatively good standard. [¶] First of all, the Court has to look at the seriousness of the problem which led to the dependency and the reason for the continuation of that problem. [¶] Well, this is a serious problem in several respects, or at least in two primary respects. [¶] A, it is clearly [sic] there’s a severe alcohol addiction which is undisputed by all the counselors and undisputed by the mother. [¶] But even more dangerous is the issue that the mother has a history of periodic drinking and driving, wherein the child was on one occasion seriously injured and could have been killed or paralyzed. And she -- there’s no less than three occasions where she has elected to do this, twice put this young boy in the car. And the second time was after the boy had been seriously injured. [¶] So I regard this type of alcoholism as extremely dangerous to the child, both physically, psychologically, and emotionally. And it has not been wasted on -- there was no cross-examination by the attorneys, but it has not been wasted on the Court that . . . the mother indicated that she was a daily drinker, which implies that this child has, quite frankly, been in an unacceptable environment for many years. Because a drinking parent cannot satisfactorily parent their child. [¶] They just -- you make mistakes. Things happen. Maybe not driving -- to the point of driving a car and having a major catastrophic accident, just the simplest thing of leaving doors open and leaving gas on, cooking utensils, sharp knives, and on and on and on. [¶] I think the child has been in a very dangerous environment for a very long time. [¶] [We also must consider] the strength of the existing bond and relationship between the parent and child and their current caretakers and the length of time that the child has been in the dependency system. [¶] And the Court would indicate that this child has a very strong bond to his mother. It is very clear that he loves his mother. He is an eight-year-old boy. [¶] He also has a very strong bond with the caretakers. [¶] This is a problematic issue because it is not a popularity contest between the parents. And the significant issue that I see has been brought up . . . in Dr. Roeder’s report, it is very clear that the child has a conflicted relationship with his mother, in that he loves her very much but he is very angry. He is angry because he is in car wrecks. He’s angry because he got hurt. He’s angry because he’s separated from her. He’s angry because he’s been moving around to various locations and various caretakers. [¶] And he has a lot of reasons to be angry and frustrated, and that is undisputed. [¶] The Court feels that the -- this issue is taken to a step further here, in terms of the best interest analysis and that Dr. Roeder finished his report, . . . that the conflict with the mother is problematic in terms of this child’s development. Because the child is at an age where he needs to develop trust bonds. He needs to advance to the next level of proper childhood development. [¶] And I appreciate that we didn’t get a lot of testimony on it, but all the attorneys and social worker are very well versed on this, and that he is clearly unsure of [sic] his mother’s going to make it. He prays for his mom. He wishes she wouldn’t drink. He has -- the indication of Dr. Roeder he’s basically become way too involved in trying to control the mother’s drinking. [¶] And the issue to this Court, if this child were returned to the mother and she were to relapse in this child’s presence, based on Dr. Roeder’s testimony, I would imagine that would be catastrophic in terms of his ability to trust adults. [¶] Dr. Roeder made it very clear that he had a very strong trusting relationship with the caretakers and that apparently there was no negative testimony regarding these caretakers. They have provided exemplary care for this child. They have been a wonderful respite for him in a time of need. [¶] Finally, the third category regarding best interests, at least to this analysis, the degree to which the problem leading to this dependency can be easily removed or ameliorated, and it is agreed it has been [sic]. [¶] We have touched on this. I don’t think these problems have been resolved. And I don’t think they’re going to be removed. [¶] And based -- what I see, I don’t think that the seven and a half months is enough time . . . . [¶] Finally, the Court is also concerned and would add for purposes of its ruling today that the best interest standard is very complex and that all the circumstances in this case have to be weighed. [¶] I have considered the social worker’s report. The social worker is in strong support of proceeding with the permanent placement hearing and has further emphasized [that] in her testimony. [¶] I believe -- I believe . . . that the severing of this bond with the caretakers, which would be necessary in terms of the placement with the mother, would likely cause long-term serious emotional damage [and would] be especially true if there was a relapse by the mother. [¶] But he has -- this is -- these people have come forward and provided this child with the continuity and stability that he needed in a time -- a very serious time in his life. And I believe that is also a factor that this Court should place great weight on. [¶] And I believe that although the foster parenting of these parents has only been since, I believe, November; is that correct? [¶] That is a -- I would consider that a significant time period. But when -- [sic] substantial time period when you couple that with the child was previously in foster care for many, many months, I think that it is in this child’s best interests to consider the continuity and stability in his life as opposed to risking his health and well-being on removing him from the support system which is actually providing him with the care and support that he needs right now. . . . [¶] So I do not believe there is a change of circumstances. I do not believe this [would be in] the best interests of the minor, and I would deny the 388 of the mother.”

Appellant’s counsel argued that a statutory exception to adoption based on the close relationship between appellant and the minor applied, and urged the juvenile court not to terminate appellant’s parental rights. In rejecting the proposed application of the exception and terminating the parental rights of appellant, the court stated in part: “I do -- I do not believe that it is appropriate to consider the exception under the Welfare and Institutions Code. I would make [sic] what is commonly called the bonding exception. I would indicate that for purposes of the record on appeal, clearly the mother has regularly maintained visitation and contact with the child. . . . [¶] As to the issue of the mother, it would be -- the Court believes that I’m required to in terms of this exception in terms of the benefit of the mother to weigh the -- as I indicated on the record -- the strength and quality of the relationship that the mother has with this child and weigh that against the security and the sense of belonging that this child would receive if he is adopted and placed in a permanent home. I believe that the mother clearly has a parental relationship. I don’t think anybody’s actually disputed that. [¶] I do believe that in order for this exception to apply, the weighing process is necessary. I agree . . . that the child is going to suffer some detriment at the termination of parental rights. I think all children do. The question is the degree of detriment as opposed to the degree of benefit this child is going to receive in the continuity of the permanent placement. [¶] Dr. Roeder indicates that the child needs -- in order to be successful, his future success is tied to working through the issues that he has with his mother, which are very much clear. He is conflicted. He loves his mother. There’s no doubt he loves his mother. But at the same time, he’s working through anger and frustration and the stress of being removed. He is uncertain as to his future. . . . And Dr. Roeder indicates in his report that his prognosis is tied to his ability to be offered a stable, willing environment -- that’s the last words of the bonding assessment -- and his ability to work through these conflicted feelings about his relationship with his mother. [¶] These are important issues because there is a good -- there’s a parental relationship, but it is a mixed relationship, the Court would contend, that the child is working through. [¶] On the other hand, as I indicated before, his life is not on hold because of his parents’ mistakes or shortcomings in life. They are to be commended on the work they have [done] in addressing their issues. [¶] This child is being offered a very strong security and sense of belonging to a home which [sic] he has indicated to the adoption worker that he wishes to be adopted. The child’s preference is to be adopted. He has a very strong connection with these people. And his life and his stability and his opportunity to grow up and be nurtured into a successful adult, I believe, lies [sic] with these caretakers. I believe that it is -- in the balancing process it’s in the best interests of this child to be adopted and that the parenting exception, the bond exception, does not apply. [¶] And the record should reflect I’ve carefully considered this. I’ve considered argument. I’ve also reread Dr. Roeder’s report and thought this carefully through, and I will not apply the exception. I don’t think it applies in this case for the reasons I have indicated.”

DISCUSSION

I

Appellant contends the juvenile court abused its discretion in denying her petition for modification because she established changed circumstances and demonstrated reunification was in the best interests of the minor. Noting the strong bond existing with the minor, and the minor’s need to maintain regular contact with her, appellant asserts the minor now could be returned safely to her custody with the provision of family maintenance services.

Section 388, subdivision (a), provides that a parent of a dependent child may petition the juvenile court “upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify, or set aside any order of court previously made . . . .” Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)

When a petition for modification is brought after the end of the reunification period, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the child’s needs for permanence and stability. (Ibid.)

The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

In denying appellant’s petition for modification, the juvenile court recognized she had made efforts to ameliorate the difficulties underlying the dependency petition. However, doubtless out of concern for the minor’s needs, and because of evidence appellant required at least two more years in a structured living environment, the court did not find a sufficient change of circumstance and suggested the best interests of the minor would be promoted by proceeding to the selection of a permanent plan for the minor.

The determination by the juvenile court was well within its discretion. As the record reflects, appellant had made some progress, and her efforts are to be commended. But the record also suggests that more time lay ahead for appellant in which she would need to continue to participate in programs. She had been sober only eight months. In the meantime, it was likely, as the record suggests, that the minor would continue to develop and attach to adult figures, such as his foster parents.

In her petition, appellant averred it was in the best interests of the minor to return him to appellant, and to provide appellant with additional services, due to the close bond they shared, and to her progress. However, at this point in the proceedings, as the juvenile court recognized, the focus of the case had shifted to the minor’s interests, and it was unreasonable to expect the minor to wait for appellant to establish her fitness as a parent. As the record suggests, appellant requires more time in order to fully develop appropriate parenting skills and remain alcohol free.

For example, during her testimony at the hearing on the petition, a program manager at the facility where appellant was a client testified she recommended appellant remain in a structured living environment for some time, perhaps two years or more.

The difficulty with appellant’s petition is her failure to allege pertinent facts in support of her belief that the minor’s best interests required reunification with appellant. A prima facie showing requires the proffering of facts relevant to the claim made. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) Mere beliefs, without facts to support them, do not constitute prima facie evidence of the minor’s best interests. Here, it is not enough to assert, as appellant does, that she should receive custody and additional services primarily because of the bond the minor and appellant share. At the time of the hearing on the modification petition, the minor had been out of appellant’s custody for nearly two years of the minor’s life. Appellant’s petition is deficient because it contains few, if any, facts relating to the minor’s current circumstances.

Appellant’s brief and modification petition emphasize the strength of her bond with the minor and the efforts she was making to become a better parent. But appellant says little about the minor’s circumstances and feelings. The focus of appellant’s central argument appears to be on appellant, rather than on the minor.

Most importantly, in her petition appellant did not allege any facts that the minor’s needs for permanence and stability would be promoted by eventual return to a parent who DHS believed had not made significant improvement in her situation.

In Kimberly F., supra, 56 Cal.App.4th 519, the appellate court warned against the juvenile court simply comparing the situation of the natural parent with that of a caretaker in determining a section 388 petition. It termed such an approach the “‘simple best interest test.’” (Id. at p. 529.) Instead, the appellate court found that determining a child’s best interests under section 388 required an evaluation of a number of factors, including the seriousness of the reason for the dependency action, the existing bond between parent and child and caretaker and child, and the nature of the changed circumstances. (Id. at pp. 530-532.) The court suggested it was unlikely a parent who lost custody because of sexual abuse of a minor could prevail on a section 388 petition, whereas in a “dirty house” case, which was present in Kimberly F., the chances of success were greater. (Id. at pp. 531, fn. 9, 532.) In Kimberly F., the court concluded the decision to deny the section 388 petition was based largely and improperly on the juvenile court judge’s adoption of the “‘narcissistic personality’ rationale”, which the judge had applied to the mother in that case. (Id. at pp. 526, 527, 532-533.)

In this case, in denying appellant’s section 388 petition, the juvenile court referred to many of the same factors analyzed in Kimberly F., supra, 56 Cal.App.4th 519. Moreover, evidence of all of the critical factors contained in Kimberly F., including the basis of the dependency action, the relationship between appellant and the minor, and the nature of the alleged changed circumstances, was before the court. Moreover, the court’s very extensive comments about the case suggest it considered carefully all pertinent circumstances. On the record before it, the court concluded that appellant failed to sustain her burden. Under the abuse of discretion standard, we see no error in that determination.

The juvenile court was required by statute (§ 388) to focus on the minor’s best interests in deciding whether to grant the petition for modification. As we have seen, those interests consist of a minor’s needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the minor had adjusted well in his foster care placement. On the other hand, appellant was still working on the difficulties that had contributed to the dependency proceedings. On this record, it is not surprising that the court suggested the minor should not be forced to wait any longer.

The juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellant’s petition for modification. The court’s determination that the minor’s need for permanency compelled denial of the petition and served the minor’s best interests was reasonable and is supported by the record. (Cf. In re Edward H., supra, 43 Cal.App.4th at p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minor. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416 with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the court’s decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)

II

Appellant contends the juvenile court committed reversible error in finding that the minor would not benefit from continuing his relationship with appellant. Noting evidence in the psychological evaluation that termination of parental rights would be detrimental to the minor, the minor’s wish to be with appellant, and the strong bond existing between them, appellant argues the court should have considered guardianship or long-term foster care as alternatives to adoption.

“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

One of the circumstances under which termination of parental rights would be detrimental to the minor is: “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).) The benefit to the child must promote “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.).)

The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent a significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

In this case, it is true that appellant had regular contact with the minor, and a strong bond existed between them. It also is true that, although the psychologist reported that terminating the relationship between appellant and the minor would cause detriment to the minor, that relationship was a “damaged” one. Finally, the minor had bonded to his foster parents, and he required a great deal of security, which he was receiving in foster care.

Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both Autumn H. and Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellant’s suggestion that the minor would benefit from continuing his relationship with her simply because of the attachment existing between them and due to the minor’s need to maintain contact with appellant. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)

Appellant suggests the record establishes the existence of a beneficial relationship between the minor and herself, precluding a finding of adoptability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that the detrimental effect of termination of parental rights would outweigh the benefit of adoption to the minor. Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting it was critical for the minor to obtain the benefits of a stable placement which, as we have seen, the record shows he was receiving in foster care.

In In re Brandon C. (1999) 71 Cal.App.4th 1530, the juvenile court found it was in the best interests of the minors to establish a guardianship, rather than terminate parental rights, so the minors could maintain their relationship with their mother. (Id. at p. 1533.) Affirming, the court of appeal held substantial evidence supported the juvenile court’s conclusion that terminating parental rights would be detrimental to the minors, because their mother had maintained regular, beneficial visitation with them. (Id. at pp. 1533-1534, 1537-1538.)

In re Brandon C., supra, 71 Cal.App.4th 1530 is distinguishable from the proceedings here. The Brandon C. court found ample evidence of benefit to the minors of continued contact with their mother. (Id. at pp. 1537-1538.) Here, by contrast, the record supports the juvenile court’s conclusion that there would not be sufficient benefit to the minor if his relationship with appellant were continued. Moreover, as the record also suggests, the minor had a need for stability and security, a need which only adoption could satisfy.

Appellant suggests that because she had maintained a significant parent-child relationship with the minor, which included regular contact while in placement, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re Casey D. (1999) 70 Cal.App.4th 38, 51, cited by appellant, the court of appeal did not find an “exceptional case” where a beneficial relationship existed that would preclude adoption. Accordingly, the court in Casey D. affirmed the order that terminated parental rights. (Id. at pp. 51, 53-54.) However, the court in Casey D. did recognize the possibility that a beneficial relationship might exist despite the absence of daily contact between parent and child. (Id. at p. 51.) The difficulty for appellant here, as the juvenile court found, is that she failed to establish the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.

Here, the issue was as follows: In light of the minor’s adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits he would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including the social worker’s report and the psychological evaluation.

Contrary to appellant’s claims, the record reflects the juvenile court acknowledged the strong attachment existing between appellant and the minor, and did not emphasize unduly circumstances pertaining to the minor’s foster parents, including their bonds to the minor and willingness to facilitate post-adoption contact. In fact, the court stated explicitly it had considered carefully both the beneficial relationship exception to adoption and the contents of the psychological evaluation. Thus, we reject appellant’s reliance on In re S.B. (2008) 164 Cal.App.4th 289, 299-300, and In re Amber M. (2002) 103 Cal.App.4th 681, 690, which involved improper consideration by the juvenile court and social worker of external factors pertaining to the strength of the parent-child relationship.

After it became apparent that appellant would not reunify with the minor, the juvenile court had to find an “exceptional situation existed to forego adoption.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, on the contrary, the court determined the minor would not benefit from continuing his relationship with appellant to such a degree that termination of parental rights would be detrimental to him. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating her parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)

III

Appellant contends the order terminating parental rights must be reversed because the juvenile court did not have sufficient evidence that the minor understood the consequences of adoption. Moreover, according to appellant, there was conflicting evidence about the minor’s wishes regarding adoption. Therefore, appellant asserts, the court erred in determining the minor wished to be adopted. Appellant argues that, under these circumstances, the court should have obtained a statement from the minor in chambers about his feelings pertaining to the proposed termination of parental rights, in order to ensure the minor understood the “true meaning” of adoption.

For purposes of resolving it, we presume the issue may be tendered for the first time on appeal. (Cf. In re Asia L. (2003) 107 Cal.App.4th 498, 513-514; In re Amanda D., supra, 55 Cal.App.4th at pp. 819-820.)

It is true that pursuant to subdivision (h) of section 366.26, the juvenile court must “consider the wishes of the child . . . .” That statute also provides the court must “act in the best interests of the child.” In performing its duties, the court should evaluate the reports by the social workers and others, any documents submitted by the parties, and testimony adduced at the hearings. However, the court is not required to hear testimony by the minor. (In re Amanda D., supra, 55 Cal.App.4th at p. 820.)

Pursuant to section 366.21, subdivision (i)(l)(E), the department must provide a statement from the minor pertaining to adoption. As noted by DHS, that requirement was satisfied in this case.

In this case, the record contains ample evidence of the wishes of the minor. Early on during the dependency proceedings, the minor stated he wanted to return to parental custody. Thereafter, the minor indicated he wanted to remain with his foster parents. Although the minor stated he wished he could “move back with [appellant],” this statement should be viewed in its proper context: The minor was being interviewed by psychologist Roeder, and during that interview he also expressed ambivalent and conflicted feelings about appellant. Under the circumstances, the expression of those conflicted feelings hardly is surprising.

We presume the juvenile court read and considered all of the evidence before it, including the social worker’s reports, and also considered the minor’s wishes, as it stated it did. (Evid. Code, § 664.) As the evidence before the court suggested, the minor was capable of forming an attachment with his caregivers. Accordingly, contrary to appellant’s claim, there was sufficient evidence in the record from which the court could make a judgment about the wishes of the minor.

In re Diana G. (1992) 10 Cal.App.4th 1468, relied on in part by appellant, does not compel a different result. There, the court held only that the minor’s statement must reflect the fact the minor is aware the proceeding involved termination of parental rights. (Id. at p. 1480.) Here, the record reflects the adoptions social worker spoke with the minor, and reported the minor appeared to understand that “being adopted . . . meant [the minor] would remain living with [his foster parents] until he was an adult, and that he would not live with [appellant].”

We conclude the record does not support the claim the juvenile court failed to have before it sufficient evidence of the wishes and understanding of the minor pertaining to adoption. There was no abuse of discretion or other error. (In re Diana G., supra, 10 Cal.App.4th at p. 1481.)

DISPOSITION

The orders denying the petition for modification and terminating the parental rights of appellant are affirmed.

We concur: HULL, J. ROBIE, J.


Summaries of

In re H.H.

California Court of Appeals, Third District, El Dorado
Jan 7, 2009
No. C059132 (Cal. Ct. App. Jan. 7, 2009)
Case details for

In re H.H.

Case Details

Full title:In re H. H., a Person Coming Under the Juvenile Court Law. EL DORADO…

Court:California Court of Appeals, Third District, El Dorado

Date published: Jan 7, 2009

Citations

No. C059132 (Cal. Ct. App. Jan. 7, 2009)