In re I.O. CA2/5 ( 2013 )

Filed 12/31/13 In re I.O.. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re I.O., a Person Coming Under the B249624
Juvenile Court Law.
(Los Angeles County Super. Ct.
No. CK87805)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
C.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Annabelle
G. Cortez, Judge. Affirmed.
California Appellate Project, Jonathan B. Steiner, Executive Director, and Anne E.
Fragasso, Staff Attorney, under appointments by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Senior Deputy County Counsel, for Plaintiff and Respondent.
____________________________
C.R. (mother) appeals from the dependency court’s May 16, 2013 order
terminating her parental rights under Welfare and Institutions Code section 366.261 and
selecting adoption as the permanent plan for her daughter, I.O. Mother contends the trial
court erred when it terminated her parental rights and when it prevented her from
testifying about I.O.’s relationship with maternal relatives. We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and I.O. came to the Department of Children and Family Services’
attention on May 6, 2011, through a referral alleging that mother used drugs and
neglected I.O. When a social worker went to the address, she found I.O. playing in the
front yard of a house. I.O. had dust and dirt on her face. The social worker asked to see
mother. I.O. took her back to a small wooden shed that served as home for mother and
I.O. The shed had no electricity, plumbing, bathroom, or kitchen. Mother appeared to be
under the influence of drugs. While the social worker was talking to mother, a friend
took I.O. away, preventing the Department from detaining I.O. on that day.
On May 9, 2011, mother brought I.O. to the Department as instructed, and I.O.
was detained. A social worker observed that I.O. “appeared parentified as evidenced by
her trying to comfort mother when mother became tearful due to the detention of the
child.” I.O. was comfortable with strangers and was not upset when the social worker
explained her detention. When I.O. arrived at her foster home, “she expressed joy for
having a room and her own bed. Out of excitement, the child exclaimed to [the social
worker]—‘Will you tell my mom that I have all of this!’”
I.O. described the living conditions before her detention, explaining that she
sometimes had to climb through a window into the main house to use the bathroom and
also had to defecate into a bucket. She slept in a “blanket bed” on the floor, while mother
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated. The section 366.26 hearing is referred to as the permanency hearing.
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and mother’s boyfriend slept on a real bed. She was sometimes hungry and would wake
mother up to let her know. She reported that mother would sometimes spank her on the
buttocks very hard. Mother explained that I.O. (age 5 at the time of detention) was not
enrolled in school because father had destroyed I.O.’s birth certificate, and mother made
no attempt to obtain a new birth certificate.
On May 12, 2011, the Department filed a petition under section 300, subdivisions
(b) and (g), alleging that mother has a history of substance abuse, currently uses illicit
drugs, and is unable to provide I.O. with regular care and supervision; mother and child
reside in a six-by-seven foot shed with no running water, no bathroom, plumbing,
electricity, or cooking area; J.O., presumed father of I.O.,2 has a history of drug abuse
and drug convictions; father has another child who is a dependent of the court; and father
has failed to provide I.O. with food, clothing, shelter, or medical care. At the detention
hearing, the dependency court appointed counsel for mother, ordered I.O. detained, and
gave the Department discretion to place I.O. with any appropriate relative. The court also
ordered reunification services for both parents and monitored visitation three times a
week, three hours per visit.
On July 14, 2011, parents reached a mediated agreement with the Department.
The dependency court declared I.O. a dependent under subdivision (b) of section 300,
ordered monitored visitation to continue; gave the Department discretion to liberalize
visits to include overnight and weekends while mother was in a residential treatment
program; parents to submit to drug and alcohol testing every other week and random
testing; participate in drug and alcohol counseling; and take parenting classes. I.O. would
remain in foster care, but the Department would evaluate maternal and paternal relatives
for possible placement.
Mother began inpatient drug treatment on July 5, 2011, but she was critical of the
program, lacked insight into the impact drug abuse had on her life, and wanted to leave
the program because her daughter could not reside with her at the inpatient facility. The
2 Father is not a party to this appeal.
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program only allowed two-hour weekly visits. Mother was discharged from the program
on August 31, 2011, because she failed to follow program guidelines and engaged in
inappropriate conduct with others in the program. She later enrolled in an outpatient drug
treatment program.
The Department evaluated relatives for placement, but encountered obstacles. For
example, maternal grandfather refused to submit to live scan fingerprinting, and paternal
great grandmother was not an option because father was living with her and she was in
poor health and would have difficulty transporting I.O. to and from school. I.O. was
happy and well-adjusted in her foster home placement. Mother had weekly monitored
visits with I.O. at the park.
At the six-month review hearing on January 11, 2012, the court ordered the
Department to continue providing reunification services to parents. The Department
contacted mother in April 2012 to explain the court orders and to arrange parenting
classes and drug and alcohol testing. There is no evidence mother enrolled in a parenting
class, and she failed to appear for drug testing multiple times. Mother stated to a social
worker that she does not see herself reunifying with I.O.
After efforts to approve various relatives for placement proved unsuccessful, the
Department placed I.O. with her paternal aunt in July 2012. Paternal aunt (Mrs. B.) and
her partner (Mr. G.) both have expressed their willingness to adopt I.O. from the first
contact by the Department and have not wavered in their commitment to do so.
Both maternal grandmother and maternal aunt were approved to monitor mother’s
visits with I.O. Mother visited I.O. only sporadically while I.O was living with a foster
mother. Mother’s calls to I.O. ranged from once a week to two or fewer times a month.
After I.O. began living with Mrs. B., mother visited I.O. every other weekend for six-
hour visits. I.O. returned home crying after her first visit because she wanted to stay with
mother but was happy after all other visits.
The dependency court terminated reunification services at a 12-month review
hearing on August 23, 2012, finding that neither mother nor father were in compliance
with the case plan. The court scheduled a permanency hearing under section 366.26.
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Between August and December 2012, mother continued to visit I.O. every other
week for six hours. I.O was happy living with Mrs. B. and Mr. G. She enjoyed school,
has a lot of friends, and has a positive relationship with her cousins (her caregiver’s
children).
On December 20, 2012, the dependency court continued the permanency hearing
to permit the adoptive home study to be completed. The court identified adoption as the
goal for I.O. Based on a request from mother, the court also directed the Department to
explore the option of an open adoption, permitting continued contact between I.O. and
her parents.
The Department discussed with Mrs. B. and Mr. G. the idea of maintaining contact
with I.O.’s maternal family members, offering to refer the matter to a program that could
help negotiate a Postadoption Contact Agreement, but Mrs. B. and Mr. G. did not feel it
was needed. They were open to informally maintaining relationships with I.O.’s
extended maternal family as long as the individuals respected their boundaries and did
not present any safety issues.
At the permanency hearing on May 16, 2013, the dependency court admitted the
Department’s reports dated December 20, 2012, February 21, 2013, and May 16, 2013.
Mother testified that she visited I.O. every other week for six hours, and they would
watch TV, eat, or play. She spoke to I.O. on the phone “everyday or every other day
when I do have a phone.” They would talk about school, but mother did not know I.O.’s
teacher’s name. Mother did not elaborate how often she lacked a telephone. When
counsel asked mother if I.O. was close to any maternal relatives, the court sustained the
Department’s objection that I.O.’s relationship with maternal relatives was not relevant to
the question of I.O.’s adoptability or the parental relationship between mother and I.O.
Mother’s counsel argued that mother’s regular and consistent contact with I.O.
supported the parental relationship exception and asked the dependency court not to
terminate mother’s parental rights. I.O.’s counsel pointed to evidence contradicting
mother’s testimony about the frequency of her contacts with I.O. She also pointed out
that the prospective adoptive parents have not objected to continued contact between I.O.
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and her mother or maternal relatives. She argued that mother’s relationship did not
outweigh the benefit of adoption and stability for I.O. Counsel for the Department also
argued that the parental relationship exception did not apply because the benefits of a
continued relationship between I.O. and mother do not outweigh the benefits of adoption.
In denying the applicability of the parental relationship exception, the dependency
court adopted the arguments of counsel for the Department and I.O. regarding mother’s
failure to meet the burden of showing the parental relationship exception applies. It
stated it “is not going to repeat everything that [counsel] said, but it does point out that
the caregiver . . . has indicated that she is interested in continuing contact with the
relatives” so long as it does not represent any safety or boundary issues. Finding the
potential interference with a continued relationship between I.O. and mother did not
outweigh the benefit of adoption, the court found that no exception applied. The court
terminated parental rights and ordered the Department to proceed with adoptive
placement for I.O.
DISCUSSION
Substantial Evidence Supports the Parental Relationship Exception to Adoption
Does Not Apply
Mother contends the dependency court erroneously terminated her parental rights
based on insufficient evidence the benefits of adoption outweighed a continued
relationship between herself and I.O. She argues that her relationship with I.O. falls
within the exception to termination of parental rights under section 366.26, subdivision
(c)(1)(B)(i). We disagree.
We apply the substantial evidence standard of review when a party challenges the
dependency court’s determination that the exception under section 366.26, subdivision
(c)(1)(B)(i) does not apply. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re
Autumn H. (1994) 27 Cal.App.4th 567, 576; compare In re Bailey J. (2010) 189
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Cal.App.4th 1308, 1314-1315 [applying both substantial evidence and abuse of discretion
standards of review in a two-step process]; In re Aaliyah R. (2006) 136 Cal.App.4th 437,
449 [abuse of discretion standard of review].)3 If supported by substantial evidence, the
judgment or finding must be upheld, even though substantial evidence may also exist that
would support a contrary result and the dependency court might have reached a different
conclusion had it determined the facts and weighed credibility differently. (In re Dakota
H. (2005) 132 Cal.App.4th 212, 228.) “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to support the
findings of the trial court. [Citations.]” (In re Matthew S. (1988) 201 Cal.App.3d 315,
321.)
Under section 366.26, subdivision (c)(1)(B)(i), if the dependency court terminates
reunification services and finds the child is adoptable, it must terminate parental rights
unless it “finds a compelling reason for determining that termination would be
detrimental to the child due to [the circumstance that the parent has] [¶] . . . maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship.”
The parental relationship exception “does not permit a parent who has failed to
reunify with an adoptable child to derail an adoption merely by showing the child would
3 “The practical differences between the two standards of review [(substantial
evidence and abuse of discretion)] are not significant. ‘[E]valuating the factual basis for
an exercise of discretion is similar to analyzing the sufficiency of the evidence for the
ruling. . . . Broad deference must be shown to the trial judge. The reviewing court
should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in
support of the trial court’s action, no judge could reasonably have made the order that he
did.’ . . .”’ [Citations.] However, the abuse of discretion standard is not only traditional
for custody determinations, but it also seems a better fit in cases like this one, especially
since the statute now requires the juvenile court to find a ‘compelling reason for
determining that termination would be detrimental to the child.’ (§ 366.26, subd.
(c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile court’s
opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a
high degree of appellate court deference.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1351.)
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derive some benefit from continuing a relationship maintained during periods of
visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) “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.]” (In re C.F. (2011) 193 Cal.App.4th 549,
555.) The type of parent-child relationship that triggers the exception is a relationship
which “‘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. . . .’
[Citation.]” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine
D., supra, at pp. 1347-1350.)
The dependency court’s finding that the parental relationship exception under
section 366.26, subdivision (c)(1)(B)(i) does not apply in this case is supported by
substantial evidence. First, there was substantial evidence that mother did not meet the
first prong of the parental relationship exception—regular visitation and contact. (In re
C.F., supra, 193 Cal.App.4th at p. 554.) Mother’s visits with I.O. while she was in foster
care were sporadic, and her telephone contact was infrequent. Mother’s visits became
more regular once I.O. was placed with Mrs. B., but they still amounted to 12 hours per
month, and the visits were always monitored by a maternal relative. The court could
reasonably infer from such facts that mother’s visitation and contact was insufficient to
meet the requirements of the parental relationship exception.
Substantial evidence also establishes that mother did not satisfy the second prong
of the parental relationship exception because her relationship with I.O. did not promote
I.O.’s well-being “‘to such a degree as to outweigh the well-being the child would gain in
a permanent home with new, adoptive parents. . . .’ [Citation.]” (In re Brandon C.,
supra, 71 Cal.App.4th at p. 1534.) Mother argues that because I.O. lived with her until
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she was five, the value of a continued relationship is strong. This argument ignores the
fact that even when I.O. was living with mother, mother was not meeting I.O.’s basic
needs. “The significant attachment from child to parent results from the adult's attention
to the child’s needs for physical care, nourishment, comfort, affection and stimulation.”
(In re Autumn H., supra, 27 Cal.App.4th at p. 575.) When I.O. was living with mother,
she did not have adequate food and had to wake her mother when she was hungry. The
housing her mother provided did not even have a bathroom. I.O.’s excitement at the
prospect of having her own bed and her own room demonstrates the fact that her own
mother was not meeting her needs. Because of her ongoing drug problems, mother never
achieved unsupervised visits with I.O. She did not know the name of I.O.’s teacher, and
when she visited I.O., they would eat, play, and watch television. To the extent I.O.
derives some benefit from a continued relationship with her mother, it is incidental rather
than significant. (See ibid. [incidental benefit from visits between natural parent and
child insufficient to trigger exception].) We recognize that the court’s action terminating
mother’s parental rights will mean that I.O.’s adoptive parents have the legal right to end
mother’s visits should they choose to do so. (See In re S.B. (2008) 164 Cal.App.4th 289,
300 [“[w]e do not believe a parent should be deprived of a legal relationship with his or
her child on the basis of an unenforceable promise of future visitation by the child’s
prospective adoptive parents”].) However, we do not second-guess the dependency
court’s determination that the benefit of permanency outweighs any possible benefit of
legally preserving the relationship between I.O. and mother. The court’s determination
the parental relationship exception does not apply in this case is supported by substantial
evidence.
Testimony of I.O.’s Relationship With Maternal Relatives Was Not Relevant
The dependency court did not err in sustaining the Department’s objection to
testimony about I.O.’s relationship with her extended maternal relatives. We review
decisions on whether to permit or exclude evidence for abuse of discretion. (In re Cindy
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L. (1997) 17 Cal.4th 15, 35.) Evidence Code section 352 permits the court to exclude
evidence if the probative value of the evidence “is outweighed by the tendency to unduly
prolong the proceedings and lead to extraneous issues.” I.O.’s relationship with her
maternal relatives was not relevant to the matters being decided at the permanency
hearing. The purpose of the hearing was to make findings about I.O.’s adoptability and
to determine whether any exception applied that would preclude termination of mother
and father’s parental rights. Even if the excluded testimony had shown a strong bond
between I.O. and maternal relatives, such a bond is not recognized as a reason to preclude
termination of parental rights.
DISPOSITION
The order is affirmed.
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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