In re C.M. CA4/2 ( 2013 )

Filed 12/3/13 In re C.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.M., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E058036
Plaintiff and Respondent, (Super.Ct.No. J227010)
v. ORDER MODIFYING
OPINION
L.M. et al.,
[NO CHANGE IN JUDGMENT]
Defendants and Appellants.
THE COURT:
It is ordered that the opinion filed on November 20, 2013, be modified as follows:
On page 25, the paragraph that begins, “Parents exposit In re Amber M. (2002)
103 Cal. App. 4th 681[,]” is modified to read:
“Parents exposit In re Amber M. (2002) 103 Cal. App. 4th 681 and In re Scott B.
(2010) 188 Cal. App. 4th 452 (Scott B.) in support of their contention the parental
beneficial relationship exception was applicable here. We find both decisions
1
distinguishable. In Amber M., several professionals expressed conclusions that the
mother and the minors were strongly bonded and that interfering with their relationships
could be harmful to the minors. A psychologist who had conducted a bonding study
between Amber and the mother found that they shared a “‘primary attachment’” and
“‘primary maternal relationship’” that could be detrimental to sever. Amber’s therapist
believed she and the mother had a strong bond and that it was important their relationship
continue. (Amber M., at p. 689.) The court appointed special advocate (CASA) for one
of the other minors testified that minor “loved and missed Mother and had difficulty
separating from her.” (Ibid.) The CASA disagreed with the Agency’s recommendation
of adoption. (Id. at pp. 689-690.) Thus, unlike the instant case there was overwhelming
evidence the mother and the minors had a strong relationship that would detrimental to
minors to sever.
Except for this modification, the opinion remains unchanged. The modification
does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
2
Filed 11/20/13 In re C.M. CA4/2 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.M., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E058036
Plaintiff and Respondent, (Super.Ct.No. J227010)
v. OPINION
L.M. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and
Appellant L.M.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and
Appellant S.M.
1
Jean-Rene Basle, County Counsel, Kristina M. Robb, Deputy County Counsel for
Plaintiff and Respondent.
No appearance for Minor.
On April 30, 2009, plaintiff and respondent San Bernardino Department of
Children and Family Services (the department) took C.M. (minor; born January 2005)
into protective custody, along with minor’s siblings K.M. (born February 2006), and
C.J.M. (born March 2008), after receiving a call from a deputy sheriff reporting
defendant and appellant S.M. (mother) had been involuntarily institutionalized pursuant
to Welfare and Institutions Code section 5150.1 Defendant and appellant L.M. (father)
had been diagnosed with Post Traumatic Stress Disorder (PTSD) and Schizophrenia. The
home was found in a deplorable state. The department placed minor with the prospective
adoptive parents (PAPs) on September 23, 2009.
On January 27, 2011, the juvenile court terminated the reunification services of
mother and father (parents) as to minor. On January 27, 2012, the juvenile court returned
custody of K.M. and C.J.M. to parents and dismissed the dependency as to K.M. and
C.J.M. On January 29, 2013, the juvenile court terminated parents’ parental rights to
minor and ordered adoption as the permanent plan. Parents appeal contending the court
erred in declining to apply the beneficial parent relationship and sibling relationship
exceptions to the termination of parental rights. We affirm the judgment.
1 All further statutory references are to the to Welfare and Institutions Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL HISTORY
A sheriff’s deputy “reported he was called by an informant that [parents’] home
was substandard and a risk to the children’s safety, health, and well being.” The deputy
“reported that the home was strewn with filthy clothing; the home smelled of urine and
feces, there [was] dog feces inside the home and about the home. The children we[r]e
walking about the home and tracking through the feces with bare feet. There were no
provisions for the children.” Minor was observed squatting to urinate in the living room.
C.J.M. had a diaper rash and appeared uncared for. The home had very little food and no
milk. Father’s psychiatric medication was found in the garage within reach of the
children. Minor had been diagnosed as autistic, but parents had not obtained any services
for her.
Mother had been involuntarily committed for thoughts of suicide and depression.
Mother reported incidents of domestic violence at the hands of father. Father admitted
the domestic violence charges: “‘I get energy in my arm—like electricity and—yes, I
have domestic charges against me.’” “‘[T]here is a plan that guides me, I believed that—
I hear things swirling in my head—I am guided by a plan.’” Father had multiple arrests
and convictions for domestic violence and was currently on probation. Father had served
over three years in the military with tours of duty in both Iraq and Afghanistan. While in
Iraq, father suffered from a combat blast wave and sustained shrapnel injuries in a mortar
attack for which he received a purple heart. He was diagnosed with PTSD and
Schizophrenia.
3
The department filed a section 300 juvenile dependency petition alleging mother
and father suffered from mental illnesses that prohibited them from properly caring for
the children (B-1 & B-2), had maintained substandard living arrangements for the
children (B-3 & B-4), had engaged in domestic violence in the presence of the children
(B-5 & B-6), and mother was hospitalized (G-7).2 In the jurisdiction and disposition
report filed May 26, 2009, the social worker noted, “The most significant strength is the
parents[’] love for their children. The family has no substantiated priors. In the past the
parents have met the children’s needs. The family has stable housing and their rent is
reduced through Section 8. The parents have made improvements on the home. When
the undersigned made an unannounced visit to the home the undersigned noted that the
floors were clean, the carpet was clean, the home was free from an unpleasant odor and
the clothes had been washed. The home was still messy, but a major visible
improvement was noted from the initial unsanitary conditions noted in the detention
report. The parents are receptive to [department] recommendations.”
Mother had enrolled in behavioral services. “The parents’ progress and initiative
has been noted.” “The parents have great insight and are committed to successfully
reunify.” Parents’ first visit with minor occurred on May 22, 2009: “The visit went well.
The parents were attentive and interacted appropriately with the children. The children
appeared comfortable in their presence and happy.” “The mother has had to act in the
capacity of a conservator for the father instead of a wife. It appears that the mother has to
2 The department later withdrew the G-7 allegation, apparently when mother was
released.
4
monitor the father daily to ensure his medication is effective and ensure he is receiving
appropriate services. In the midst of mother’s care for the father she . . . fell into a
depression which has affected her ability to adequately parent.” “The parents both desire
to be good parents and they love their children. It is the undersigned’s impression that
through counseling, ongoing psychiatric care, psychotropic medication[,] and a parenting
class the parents can successful[ly] reunify.”
The juvenile court sustained the allegations in the petition, as amended, on June 5,
2009. The court removed minors from parents’ custody and ordered twice weekly
visitation to be liberalized at the discretion of the social worker.
In the status review report filed November 25, 2009, the social worker reported
she had been informed by the Veterans’ Administration (VA) father required intense
monitoring. Father was participating in a program with the VA for persons with PTSD
and Schizophrenia. He had “many appointments with mental health care professionals.”
It was recommended mother not work outside the home so that she could care for father;
she “is very organized and acts as an effective advocate for her husband’s needs.”
Mother was working on obtaining permanent disability for father due to his service injury
in Iraq.
Although all the children had initially been placed in the same foster home, minor
was removed and placed with the PAPs on September 23, 2009, due to her “frequent
tantrums, particularly in public as well as aggressive tendencies toward her sisters.” “It
has been observed that [K.M.] appeared nervous or stressed when [minor] was placed in
the same home. Since [minor] has left [K.M.] is more ‘carefree’ and sleeps through the
5
night more consistently.” When moved, minor’s behavior improved dramatically. The
foster families “have formed a close friendship” allowing the siblings to have ample time
together in addition to the time scheduled for parental visits.
Parents completed a parenting class and mother had nearly completed her
approved counseling sessions. Father maintained ongoing mental health services and
mother had regularly scheduled psychiatry appointments.
Parents had twice weekly monitored visits with the children: “The parents have
rarely missed a visit. When they have had to cancel a visit, it is due to an important
appointment for [father] at the VA hospital. . . . The family visits appear to be
appropriate. There is some concern, however, that mother and father have difficulty in
effectively re-directing the children. The children tend to do what they want to without
listening to instruction from the parents. There has been minute improvement over the
months; however, it appears that more time is required for [parents] to put effective
parenting techniques into practice.” Mother “attempts to provide educational toys and
activities during her visits with the children. She also provides healthy snacks. It has
been reported that family visits with father present are more hectic and less controlled.
[Father] has difficulty remaining during the entire [two]-hour visit; consequently, he goes
outside for minutes at a time prior to rejoining the family.”
“There is no doubt that [mother] loves her family. She has a tremendous task
ahead of her in order to care for them. Despite her strengths, [mother] is not yet ready to
independently care for her mentally ill husband, two developmentally delayed children
6
and a toddler.”3 “With a gradual transition, it is this social worker’s belief that [mother]
can eventually juggle all the components of her high needs family and thus, succeed as a
parent.”
On December 7, 2009, the juvenile court found parents had made moderate
progress and that there was a substantial probability the children would be returned to
parents’ custody within six months. The court authorized the social worker to transition
visitation to unsupervised as deemed appropriate; Mother was to be present for
unsupervised visits.
In the status review report filed May 25, 2010, the social worker recommended,
“Six more months of services [to] provide time for the family to transition to
unsupervised visits, which would allow for a better assessment of the [parents’] ability to
parent and care for their children, and build their relationship with their children.” The
recommendation included twice weekly one-hour visits, one supervised and one
unsupervised.
Parents had acquired a four-bedroom, two-bathroom house. There were beds and
dressers for each child. The house appeared appropriate and clean. Parents had installed
locks on the refrigerator and some cabinets. Father remained medication compliant.
Parents had complied with their case plan.
3 K.M. also showed some intellectual developmental delays.
7
Parents had twice weekly monitored visits: “The parents have rarely missed a
visit. When a visit has been cancelled it has been due to [father] having a conflicting
appointment at the VA hospital.” They were 25-30 minutes late to one visit on March 22,
2010, arriving only after the foster parents had left. “The family visits appear to be
appropriate; however[,] there is still concern that [parents] have some difficulty
redirecting the children when they misbehave. It has been observed . . . that the children
tend to do as they please in the visits. There are times when [mother] will intervene and
redirect the children; however[,] intervention is usually done as a last resort.”
Minor was receiving Early Childhood SART services through Victor Community
Support Services. A clinician reported minor’s “diagnosis of Autism is being re-
evaluated at this time.” Minor “does not appear to meet diagnostic criteria for Autism,
and . . . her delays might have been caused by neglect.” This was because minor had
made such substantial progress since treatment began.4 Minor’s “behaviors have
improved drastically. The frequent tantrums that [minor] displayed, especially when in
public have reduced to the point that they almost never occur.” It was noted that without
a structured environment, minor would “‘dysregulate.’”
Minor “has formed a healthy bond with the [foster] family. [Foster mother] has
indicated that ‘[minor] has become a part of the family’ and that they ‘love her as if she
were their own child’.” The foster parents of the siblings have continued “to maintain a
4 Subsequent testing in September 2010 failed to result in any rediagnosis. The
social worker opined, “there appear to be some fundamental biases against the parents
that exist on the part of the service provider.”
8
close relationship with each other, which allows all three children to spend time with
each other frequently throughout the week. The two foster families attend the same
church, which further allows all three girls to interact with one another.”
On June 7, 2010, the juvenile court ordered parents to undergo psychological
evaluations as the department and minor’s counsel were concerned regarding the
proposed unsupervised visitation. On July 7, 2010, the court found parents’ progress
toward alleviating or mitigating the cause necessitating placement had been moderate to
substantial. It found a substantial probability the children would be returned to parents’
custody within six months.
In the interim review report filed August 23, 2010, the social worker
recommended unsupervised visitation including overnight, weekend, and holiday
visitation. “Since being assigned to the matter, the undersigned has supervised the
majority of the visits between the children and their parents both in an office setting and
in public. Results of the psychological evaluations support the observations made by the
undersigned in that [parents] present as being very loving and attentive parents to their
children who pose no risk of detriment to the children should they be returned to their
care. . . . [Parents] have demonstrated that they have the ability to manage their children
in a public setting and that they are attentive to the children’s needs.”
Parents “work together to balance the needs of the children for individual attention
while maintaining the sense that they are all a family.” The psychologist, Heidi Knipe-
Laird, Ph.D., concluded parents do not pose a danger or risk to the children if reunified:
“Dr. Laird notes that the two carry a heavy burden together, but that they have learned the
9
skills to assess their needs and to ask for appropriate assistance as they provide a safe and
nurturing home for their children. [¶] [Mother] showed that she has enjoyed satisfaction
and validation from parenting her children, is attuned to their needs, and has a grasp of
the differences in their personalities. . . . Her parenting approaches reflected a strong
commitment to parenting with nurturance, open communication, and a style of discipline
that relies on frequent praise, consistent limit setting[,] and non-punitive consequencing.”
The social worker did note parents gave perhaps too much leeway when it came to
minor’s behavior.
On August 25, 2010, the juvenile court granted the request for twice weekly
unsupervised visitation including overnight, weekend, and holiday visitation. In the
status review report filed October 25, 2010, the social worker recommended the court
find parents had made substantial progress and minors be returned to their custody while
being maintained as dependents at home with family maintenance services. Minor was
found to be eligible for IRC services throughout her lifetime, respite care to relieve her
parents for a period of time monthly, education advocacy services, behavior modification
therapy, in-home and center based services, parent support, applied behavioral analysis,
one-on-one services, equipment, and Medi-Cal and Medicaid waiver programs. Parents
had been having two-hour visits twice weekly. Father was comfortable watching one of
the children, okay with two, but found minor wild and worried for her safety. He was
observed to be less able to effectively parent than mother. Parents were expecting the
birth of a fourth child.
10
The psychologist’s evaluations of parents were attached to the report. The
clinician conducted five in-home service visits. The clinician “reports that [parents]
appear to enjoy playing and interacting with their children and verbalize praise and
enthusiasm. [Mother] is described as being nurturing of the children and both parents
have been open to parenting suggestions.” “In the opinion of this evaluator, [father] does
not present a danger to his children, and his children are not at risk of detriment if
reunified with him and [mother]. [Parents] carry a heavy burden together, but it is the
sense of the evaluator that the couple has learned the skills to assess their needs, and ask
for appropriate assistance as they provide a safe and nurturing home for their children.”
Nevertheless, father’s chronic symptoms of PTSD and Schizophrenia suggested he posed
a “very real risk” for suicide.
“In reviewing [mother’s] past choices and decisions, her judgment has obviously
been good. Her responses in the clinical interview showed genuine insight.”
“This evaluation was performed in order to determine whether [mother] is likely to
be able to parent her three children effectively. The test results discussed above indicate
that [mother] certainly has the intellectual capacity to provide nurturing and safe
parenting. Her level of cognitive functioning definitely enables her to recognize and
solve practical problems, and meet the demands of household maintenance.” “It is the
strong impression of this evaluator that [mother’s] children are not at risk of detriment if
they reunified with her and . . . father. This young family faces formidable challenges,
and it is recommended that they receive appropriate help[.]”
11
On October 29, 2010, the court ordered unsupervised visitation including
overnight and extended visits as appropriate, as recommended by the social worker.
In the addendum report filed January 27, 2011, the social worker indicated that
since the prior hearing, parents had extended visits with the children; during this time,
Mother gave birth to a baby girl. “Over the extended visit period, the children . . . have
spent up to a week and a half together with their parents. In that time it has been
observed that [minor’s] special needs (related to her diagnosis of autism) are so great that
her extended presence in the home creates a situation that is almost unmanageable for her
parents.” Father shared he had difficulty setting limits for minor; mother expressed need
for additional behavioral support to meet minor’s needs; it was anticipated there would be
family support, which had not manifested. Although minor had shown continued
improvement, she exhibited problem behavior, which K.M. began mimicking. “Although
there are behavioral support services available, it does not appear that this will be enough
to provide the level of stability in the home that would be desired to facilitate a sound
reunification for all the children.” The department recommended return of K.M. and
C.J.M. to parent’s custody as continued dependents of the juvenile court and family
maintenance services. The social worker recommended terminating reunification
services as to minor.
At the hearing on January 27, 2011, parents submitted on the report. Mother was
“fine with that recommendation. Considering the challenges with [minor], she is fine.
The intended goal will still be to return [minor] to her parents at some point in the future.
And the visitation order that is suggested by the department works very well for the
12
parents.” The juvenile court found parents had made substantial progress, returned
minor’s siblings to parents’ custody, but found minor’s special needs outweighed “the
capacity of the parents’ ability to meet her needs and those of the other minors in the
home.” The court found minor was not adoptable, that no adult was available to become
her legal guardian, terminated reunification services as to minor, and found termination
of parental rights was not in minor’s best interests with the permanent plan ordered to be
long-term foster care with the goal of return to the home. The court ordered visits with
minor, parents, and siblings to be unsupervised a minimum of twice per month for two
hours with weekends, overnights, and holidays as appropriate and arranged by social
worker.
In the status review report filed July 18, 2011, the social worker recommended
minor’s siblings remain dependents of the court with family maintenance services. The
social worker recommended minor be maintained in her current placement. The social
worker found parents maintained the household in a manner consistent with community
standards. The home was appropriate and healthy. “The children’s need for a safe and
stable environment is consistently met, despite some of the struggles that the parents have
in dealing with the issues related to [father’s] traumatic brain injuries and the resulting
mental health concerns.” The social worker observed parents had welcomed the social
worker and assigned services providers “into their home and they have wholeheartedly
participated to the extent deemed appropriate for their children’s needs.” Father had
completed probation and there were no further reports of domestic violence.
13
The therapist believed minor regressed as a result of having spent a week in
parents’ home. K.M. would continue to mimic minor’s behavior problems when minor
was around. “Visits in the biological family home began taking place for approximately
two to four hour periods, and then moved to overnight and then weekend visits. It was
determined early on that [t]he extended visits with the parents and siblings tended to have
somewhat of a negative effect on [minor’s] behavioral stability once she returned to
placement. The transition from the foster family’s home-routine, to the biological
family’s home-routine, and then back again, exacerbated the dysfunctional components
of [minor’s] autism disorder. Essentially, the distinct differences in the amount of
environmental stimulation lead to a sensory overload[,] i.e., [minor’s] spending the
weekend playing with her siblings and having the excitement of being unfettered by the
structure of her primary environment caused her to present as being much less controlled,
both internally and externally, upon her return to care. [¶] . . . This is not to state that the
parents did anything wrong during the visits, it merely points out the fact that [minor’s]
specific needs are better met by limiting her transitions and by not placing her in an over
stimulating environment for extended periods of time.”
Since the negative effects were noted, the social worker made the determination to
change the frequency, location, duration, and activities involved in visitation. Visits
since were scheduled outside the family home, at a park, or Chuck E. Cheese’s. Thus,
visitation occurred less frequently than before, taking place on January 28-29, February
2-4, and February 18-20. Minor had exhibited behavioral problems such as being tired,
biting, spitting, acting out, and regressing upon return from visitation. On March 29,
14
2011, parents and siblings visited with minor at Chuck E. Cheese’s: “At the end of the
visit, [Minor] was a bit confused as to who she was going home with but made the
transition without difficulty or lasting effect. Parents made arrangements to visit on May
5, 2011, but failed to show. Parents visited with minor at the park for three hours on May
20, 2011, with no subsequent deregulation in minor’s behavior. On May 26, 2011, a visit
occurred, to which mother brought a family member for additional support, so that
mother could focus her attention on minor. On June 8 a visit occurred at minor’s
kindergarten graduation, and on June 27, 2011, parents visited with minor at Chuck E.
Cheese’s: “No issues or problems afterwards. Mother reports that [minor] seemed to be
more engaging of her siblings during the visit in that she sought the siblings out
independently and individually to play with them.”
Parents longed for minor’s return to their home and were evaluating what services,
provided outside of the department, could help them achieve the standard of home
maintenance they needed to attain. “The risk of detriment should [d]ependency be
dismissed at this time is solely based upon the mental health issues of [father] and the
ongoing struggles he has related to the traumatic brain injuries he sustained during his
military service in Iraq. [Parents] have demonstrated their ability to engage the Veteran’s
Administration, as well as other service providers and to independently seek the
necessary interventions as the need arises[;] however[,] [t]he undersigned, as a
representative of [the department], wishes to recommend an additional period of family
maintenance support as they solidify their current successes.” Father’s VA therapist
“visits in the home weekly and reports that [father] is stable and is participating in the
15
recommended support groups. He has recently begun to participate in a weekly . . . group
that will assist him in developing his outlets for socialization and support[] outside the
home.” The social worker noted minor’s “need for a calm and stable environment is
paramount to her mental and emotional stability.”
In the status review report filed January 24, 2012, the social worker recommended
termination of the dependency proceedings as to minor’s siblings, but recommended
setting the section 366.26 hearing to establish a permanent plan of legal guardianship for
minor; based upon the fact that [minor’s] special needs are such that returning her to the
family home would likely create a situation that would lead to a deterioration in her
overall progress as well as to overload the capacity of the parents to meet the ongoing
needs of the other children in the home.” “[I]t has become evident that the parents are
truly at their capacity to provide for the needs of their children[] in the home and the
special needs of [minor], are such that to return her to the family home are likely to cause
a regression in her current progress and create a situation in the family home where all
the children would likely be placed at risk.” Minor “continues to require a great deal
more individual attention than is practicable given the circumstances associated with
[father’s] ongoing psychological needs . . . .”
Parents maintained appropriate furnished housing, with adequate food and
supplies for the children. Father “continues to be supported for his mental health needs
through the VA. . . . He is provided with in-home therapeutic services as well as on-site
services at the VA Hospital including medication monitoring, support groups[,] and dual
diagnosis support for his alcoholism. [Father] openly admits that he occasionally
16
consumes alcohol contrary to the advice of his VA therapist . . . . There have been no
reports that his consumption of alcohol has negatively impacted the family and/or the
children’s safety in the home. It is, however, of concern to this therapist and mental
health provider due to the potential interactions alcohol can have with his medications.”
Father voluntarily had checked himself into the VA hospital twice during the last
reporting period, the latest in December 2011, during which he spent two weeks
hospitalized.
Parents had twice monthly unsupervised visits with minor. However, overnight,
holiday and weekend visits were suspended as minor would “dysregulate” afterward.
“Visits have taken place for day long excursions to theme based restaurants and parks as
well as to the family home for birthday celebrations and holidays. . . . It is apparent that
the parents do not consistently set the necessary limits for [minor] and they tend to
respond to her wants and needs as opposed to ensuring that they set the limits and
boundaries that keep her safe and regulated. This in turn leads [minor] to be less
controllable in the foster home for periods of up to several days time upon her return
. . . .” Minor “presents as being well adjusted to the placement home and she is well
bonded to her caretakers and the other children in the foster home.”
On January 27, 2012, the juvenile court dismissed the dependency as to minor’s
siblings and set the section 366.26 hearing as to minor. On February 14, 2012, the
department changed minor’s permanent plan to a PPLA (permanently planned living
arrangement) without the goal of return to parents’ home. Parents submitted, but mother
objected to the change of goal.
17
In the status review report filed August 2, 2012, the social worker changed the
recommendation to adoption as the permanent plan. “The undersigned has concerns
about [minor] being in [PAPs’] care and family for three years without the benefit of
permanency and assesses that now is the time to make a decision in favor of permanency
on [minor’s] behalf. [Minor] needs and deserves permanency after being a Court
dependent for three years without the parents being any further down the road toward
reunification than they were three years ago.” “In light of the foster parents views on
continuing the visitation and the connection to the biological family there does not appear
to be any negative effects to [minor] which will result from the adoption.”
The PAPs “want an open adoption to where [minor] continues to have a
relationship with her biological sisters and her parents, although it is doubtful that
[minor] knows what that relationship is. The parents have made every effort they know
how to prepare and ready themselves for the return of [minor] to their home[;] however,
it does not appear that they have the ability of taking on the additional load of one more
child, especially given all [minor’s] needs as an autistic child.”5 “The foster parents have
assured the undersigned that they are not the kind of people who would withdraw the
contact and visitation of the parents.”
“The Court ordered visitation continues to be an appropriate arrangement. Two
times a month for two[,] possibly three . . . hours a session at a public place, i.e.[,] a park,
a fast food place with a playground, or Chuck E. Cheese have been successful venues.”
5 Mother apparently gave birth to a fifth child in the interim before the instant
report.
18
The social worker observed a visit at Chuck E. Cheese’s on June 21, 2012, from 1:00 to
3:00 p.m. She observed minor did not interact with her parents or siblings much, but was
focused on games, eating, and watching television. When it came time to leave, minor
complained, but the social worker opined this was because she was having fun playing
games and not because she would miss her family. Father did not appear to interact or
communicate with minor.
The social worker noted that “[u]pon receiving this case on June 11, 2012[, she]
has spent much time reviewing the history of this case, and statements made by all
previous social workers regarding their recommendation for a permanent plan for
[minor]. It has been the general consensus of the previous five social workers that there
was not a substantial probability of [minor] returning home to her parents.”6 When
informed of the social worker’s new recommendation, mother cried and father, who
appeared saddened, stated he could not cope with minor and her needs. “He is just now
getting able to play with the children they have in their home and that it is too
challenging for him to think about taking [minor] back into their home.”
In the Section 366.26 report filed November 29, 2012, the social worker
recommended termination of parental rights and adoption as minor’s permanent plan.
The social worker noted she had observed a three-hour visit between parents and minor at
a park on October 9, 2012. She opined minor “does [not] appear to be attached or
6 The department concedes in its respondent’s brief that this is not true.
19
bonded with either parent.”7 The social worker reported the PAPs love minor and were
totally committed to her.
On January 29, 2013, the juvenile court held the section 366.26 hearing. In
preparation for qualifying minor to testify, minor identified herself, mother, father, and
her sisters from family photographs. Nonetheless, as a result of subsequent exchanges,
the court disqualified minor as a witness. As minor exited the courtroom, she said, “Bye,
mommy” to mother.
Mother testified she had attended all but one of minor’s Individualized Education
Program (IEP) meetings, attended minor’s kindergarten graduation, and had been
attending a support group for mothers of autistic children. She had been visiting during
the last reporting period every other week for two hours.8 Minor would sometimes run
up to her and hug her at the beginning of visits. When visits were over minor would ask
to stay longer or stay the night. When told she could not, she would ask, “‘Why not?’”
Minor would tell mother she was mean because she would not allow minor to stay longer.
Minor calls mother “‘Mom’” and father “‘Dad.’” She also calls her sisters both by their
names and by the term “‘sister.’”
7 As the department maintains in its brief, the sentence appears to contain a
typographical omission of the word “not” between “does” and “appear” as the
grammatical context of the sentence does not make sense otherwise. Moreover, mother’s
counsel questioned her at the section 366.26 as to whether she understood “the social
worker is saying that you don’t have a bond with your daughter?”
8 Since the adoption recommendation, the social worker reduced visitation from
four hours to two hours.
20
Mother felt she and minor had a bond, minor loved her, and she was part of their
family. Minor sought “comfort from me when she is present at the visitations. She also
seeks comfort from her sister and she consoles her sister . . . when she feels that someone
is not felling at their best, she is very caring towards all of us.” Mother could tell minor
had a bond with her sisters by “[t]he way she interacts with them. She is very considerate
when they are crying, when they are sad, when something bothers them. . . . She hugs
them, she kisses them, she tells them she loves them. . . . She tells them that she will be
back.” Mother believed depriving minor of visitation with her biological family would
be traumatic, “Because she knows we are her family. You just take that away from her
and then how are you going to deal with that?”
The current social worker, Sarah Conrad, testified she had been assigned the
instant case since June 2012, and had observed three visits between minor and parents.
Minor “dysregulates” after visits with parents: “she reverts back to some old behaviors to
where she is not as compliant and shows anxiety.” Autistic children “need structure, they
need limitations, they need one-on-one attention. They need to be feeling stable and
secure and just a predictable environment.” She opined parents could not meet those
needs. Minor’s best interest was in getting adopted, “because she needs to feel secure
and stable. She needs that assurance that she really belongs in this home and that she is a
part of the family more so than she is getting now with having two sets of mom[s] and
dads and the confusion that that gives to her.”
21
Conrad testified with regard to parents that minor “isn’t aware of them being her
parents, her family. She treats them as she does the children at school or the children in
the playroom. She plays with her siblings as much as I saw her do with her classmates at
school and with the children that were in the playroom today. She is a sociable child.”
On the other hand, she interacts differently with the PAPs; she treats them as her parents
and has a bond with them.
“Adoption is the better alternative. But my heart went out to the mother when she
felt that she would never see [minor] again and I spoke with the foster parents and they—
in fact, they have still kept [in] contact with the two children who have been returned to
[mother]. [The PAPs] have them over for visits, they are very loving, very connected
people and they would not do anything to hurt someone. They would not withdraw
visits.” “I don’t believe she won’t see her parents anymore. If you’ve read the report,
I’ve done extensive talking with the [PAPs] and they have assured me they will
continue.”
The juvenile court noted that parents had chosen to have two additional children
since minor’s dependency proceedings began. “You are nurturing parents, you are
devoted to [minor], you are devoted to your other children, I don’t think there is any
question to that, but when you extended yourself so much, I think sometimes something
falls apart and something has to break . . . .” “[T]he parents have maintained visitation
with benefit to” minor. Nevertheless, the court found the benefits of permanency in
adoption outweighed any benefit of maintaining the parent-child relationship. “I’m
confident that once I conclude this hearing prior to adoption, that there will be an
22
agreement between the parties for visitation. I’m confident of that because of all of the
love that I’ve seen in everyone today.”
The court asked of the department, “I don’t really think there is any dispute as to a
sibling bond here, do you dispute?” The department did dispute it. The court noted that
most of minor’s siblings “were born after [minor] was removed from the home, so there
has not been that bonding that occurs when all the children are living together.”9
Regardless, the court found any sibling bond was outweighed by the permanence of
adoption. The court terminated parental rights and ordered adoption as the permanent
plan.
DISCUSSION
A. BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
Parents contend the juvenile court erred in declining to apply the beneficial
parental relationship exception to termination of parental rights and should have ordered
long term guardianship instead. We disagree.
Once reunification services have been terminated and a minor has been found
adoptable, “adoption should be ordered unless exceptional circumstances exist.” (In re
Casey D. (1999) 70 Cal. App. 4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i)
one such exception exists where, “[t]he parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the relationship.” The
parent has the burden of proving termination would be detrimental to the child. (In re
9
Minor had four siblings; two were born before and two after the dependency
proceedings were initiated as to minor.
23
Jasmine D. (2000) 78 Cal. App. 4th 1339, 1350 (Jasmine D.); In re Jerome D. (2000) 84
Cal. App. 4th 1200, 1207.)
“‘[T]he 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.]” (In re C.F. (2011) 193 Cal. App. 4th 549, 555.)
“[I]t 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; see also In re Casey D., supra, 70 Cal.App.4th at p. 51.) “We
determine whether there is substantial evidence to support the trial court’s ruling by
reviewing the evidence most favorably to the prevailing party and indulging in all
legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] If the
court’s ruling is supported by substantial evidence, the reviewing court must affirm the
court’s rejection of the exceptions to termination of parental rights . . . . [Citation.]” (In
re S.B. (2008) 164 Cal. App. 4th 289, 297-298.)
Here, substantial evidence supported the juvenile court’s decision that the
permanence afforded minor in her adoptive home outweighed any benefit that would be
conferred upon her should she maintain her relationship with parents. Early on, father
had been unable to cope with two-hour visitation, which, at that time, involved minor and
only two siblings. Likewise, mother had then been found unready to cope with two
24
developmentally delayed children, father, and a toddler. Minor required “a calm and
stable environment [as] paramount to her mental and emotional stability.” Yet parents
had difficulty setting limits on minor even during short visits. Thus, minor often
regressed when returned to PAPs, expressing negative behavior including biting, spitting,
and acting out. Yet parents now had two additional children to take care of. The social
worker opined minor was not bonded with either parent. Thus, the juvenile court’s
decision to terminate parental rights was supported by sufficient evidence that it would
not be detrimental to minor.
Parents exposit In re Amber M. (2002) 103 Cal. App. 4th 681 and In re Scott B.
(2010) 188 Cal. App. 4th 452 (Scott B.) in support of their contention the parental
beneficial relationship exception was applicable here. We find both decisions
distinguishable. First, Amber M. affirmed a juvenile court order finding the exception
applicable. Here, we must affirm the juvenile court’s order finding the exception
inapplicable unless there was insufficient evidence to support that decision. As discussed
above, we find substantial evidence supported the juvenile court’s order. Second, several
professionals expressed conclusions that the mother and the minors in Amber M. were
strongly bonded and that interfering with their relationships could be harmful to the
minors. A psychologist who had conducted a bonding study between Amber and the
mother found that they shared a “‘primary attachment’” and “‘primary maternal
relationship’” that could be detrimental to sever. Amber’s therapist believed she and the
mother had a strong bond and that it was important their relationship continue. (Amber
M., at p. 689.) The court appointed special advocate (CASA) for one of the other minors
25
testified that minor “loved and missed Mother and had difficulty separating from her.”
(Ibid.) The CASA disagreed with the Agency’s recommendation of adoption. (Id. at pp.
689-690.) Thus, unlike the instant case there was overwhelming evidence the mother and
the minors had a strong relationship that would detrimental to minors to sever.
In Scott B., supra, 188 Cal. App. 4th 452, the minor was removed at nine years old
and was 11 years old at the time of the hearing. Thus, he had spent almost his entire life
with the mother. The CASA repeatedly stated the mother and the minor had a very close
relationship which would be detrimental to be disrupted. The minor had repeatedly
expressed his preference to live with the mother. (Id. at p. 471.) Here, minor was four
when detained and had been living with the PAPs for more than three years. No CASA
or other professional expressed an opinion that minor was bonded to parents such that
adoption would be detrimental to her.
Parents additionally complain parental rights were improperly terminated simply
due to minor’s autism and parents’ inability to care for her. (In re Paul E. (1995) 39
Cal. App. 4th 996, 1004 [minor’s autism not dispositive on decision to remove; agency
must show no reasonable means of protecting minor without removal]; Scott B., supra,
188 Cal. App. 4th 452 [parents with autistic child who will likely never be able to reunify
does not justify termination of parental rights where minor and parents enjoy strongly
bonded relationship the severance of which would be detrimental to minor].) However, it
is apparent from the record that parents’ parental rights were not terminated simply
because minor was autistic and parents were unable to care for her. Rather, the beneficial
parental relationship exception to termination of parental rights did not apply because
26
substantial evidence supported a determination minor was not bonded with parents and
that continued visitation with parents would be detrimental to the progress she had made.
Parents finally maintain the juvenile court’s decision was, at least in part,
improperly based on its determination the PAPs would maintain visitation between minor
and parents. (In re S.B., supra, 164 Cal.App.4th at p. 300 [“We 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”];
In re C.B. (2010) 190 Cal. App. 4th 102, 129-130 [same].) It is true the social worker
made several references to the maintenance of postadoption visitation in support of her
recommendation. The juvenile court also expressed confidence such visitation would be
maintained postadoption, even going so far as to pass out paperwork to accomplish this.
Nevertheless, it is apparent the juvenile court’s basis for finding the exception
inapplicable was that the benefit of permanency to be found in adoption outweighed any
benefit in maintaining the parent-child relationship. Thus, the court did not act
improperly in terminating parents’ parental rights.
B. SIBLING RELATIONSHIP EXCEPTION
Parents argue the court erred in declining to apply the beneficial sibling
relationship exception to the termination of their parental rights. Again, we disagree.
The sibling relationship exception applies if the court finds a compelling reason
for determining that termination would be detrimental to the child due to a “substantial
interference with a child’s sibling relationship, taking into consideration the nature and
extent of the relationship, including, but not limited to, whether the child was raised with
27
a sibling in the same home, whether the child shared significant common experiences or
has existing close and strong bonds with a sibling, and whether ongoing contact is in the
child’s best interest, including the child’s long-term emotional interest, as compared to
the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling
relationship exception contains strong language creating a heavy burden for the party
opposing adoption. It only applies when the juvenile court determines that there is a
“compelling reason” for concluding that the termination of parental rights would be
“detrimental” to the child due to “substantial interference” with a sibling relationship.’
[Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the
court must nevertheless weigh the benefit to the child of continuing the sibling
relationship against the benefit the child would receive by gaining a permanent home
through adoption. [Citation.]” (In re Celine R. (2003) 31 Cal. 4th 45, 61.) Parents have
the burden of establishing the applicability of the exception. (See In re Megan S. (2002)
104 Cal. App. 4th 247, 252.)
In reviewing challenges to a trial court’s decision as to the applicability of these
exceptions, we will employ the substantial evidence or abuse of discretion standards of
review depending on the nature of the challenge. (In re Bailey J. (2010) 189 Cal. App. 4th
1308, 1315-1316.) We will apply the substantial evidence standard of review to evaluate
the evidentiary showing with respect to factual issues, such as whether the child has a
close and strong bond with a sibling (for the sibling relationship exception). (Id. at p.
1315; § 366.26, subd. (c)(1)(B)(i), (v).) However, a challenge to the trial court’s
28
determination of questions such as whether, given the existence of a sibling relationship,
there is a compelling reason for determining that termination of parental rights would be
detrimental to the child “is a quintessentially discretionary determination.” (Scott B.,
supra, 188 Cal.App.4th at p. 469.) We review such decisions for abuse of discretion. In
the dependency context, both standards call for a high degree of appellate court
deference. (Ibid.; Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Here, although the court apparently found a sibling bond, it expressly ruled
minor’s need for permanence outweighed that bond. That determination was within the
court’s discretion. First, minor had only ever lived with two of her siblings at the time
she was taken into protective custody; one for a little over three years and the other for a
little over one year. She had never lived with either of her youngest siblings. At the time
the juvenile court terminated parents’ parental rights, three and a half years had elapsed
since the department detained minor. Thus, minor had spent more time living away from
even her oldest sibling than she had spent living with her.
Second, although the department initially placed minor with her siblings, it
removed minor from that placement due, in part, to aggressive tendencies toward her
sisters. When moved, minor’s behavior improved dramatically Third, as discussed
above, minor required “a calm and stable environment [as] paramount to her mental and
emotional stability.” Where minor’s visitation with her siblings could be construed as a
catalyst for regressive behavior, the court acted within its discretion in determining that
the permanency and stability offered by adoption outweighed any benefit minor sustained
from a continued relationship with her siblings.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
30