In re Al.E.
Filed 11/14/13 In re Al.E. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION THREE
In re A.E. et al., Persons Coming Under the Juvenile Court
Law.
B249105
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
T. M.,
Defendant
and Appellant.
(Los
Angeles County
Super. Ct.
No. CK80485)
APPEAL
from an order of the Superior Court
of
County, Mark A. Borenstein, Judge. Affirmed.
Rich
Pfeiffer, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
_________________________
INTRODUCTION
T. M.
appeals from the order of the juvenile court terminating her parental rights to
Aniya (age 7), J. (age 4), and Al. (age 3).
(Welf. & Inst. Code, § 366.26.)
FACTUAL
AND PROCEDURAL BACKGROUND
1. The
first section 300 petition in 2009
In
December 2009, when Aniya was three and J. was one year old, the
(the Department) removed them from Twanna’s custody after she was involuntarily
hospitalized for psychiatric treatment. T.
blamed her hallucinations on the police.
Her arrest was a conspiracy, she asserted, because she “ ‘worked
for a top government agency for 8 years,’ and has a lot of classified
information in [her] head.†She reported
that the police knew where she was because the telephones were tapped and they
had been watching her. She also reported
that while at the hospital, she found a pill on the ground and put it in her
mouth. After that, she “ ‘kept
splashing my face with candy.’ †T.
was diagnosed as psychotic, prescribed medication and psychiatric care, and was
directed to remain sober.
The juvenile court
sustained a petition declaring the children dependents (§ 300, subd. (b)). The court granted reunification services and
awarded T. monitored visits.
Twanna’s
visits were liberalized to unmonitored in July 2010. By then, she was pregnant with Al. In September 2010, the juvenile court returned
the children to Twanna’s care on the conditions, inter alia, that she comply
with the child care and her treatment plans and cooperate with the family
preservation services.
2. New
petitions in 2010
Just
over a month later, in November 2010, the Department filed a supplemental
petition (§ 387) on behalf of Aniya and J., and an original petition (§ 300) on
behalf of one-month-old Al. T. had
disappeared with the children, and failed to take her psychotropic medication,
to regularly participate in mental health services, to regularly participate in
the family preservation services, or to maintain approved housing. She was disoriented and had neglected the
children. The maternal grandmother
reported that T. was abusing drugs. The
social worker had concerns about the children’s safety.
The
juvenile court sustained the petitions.
(§ 300, subd. (b).) It granted T.
monitored visits at least twice a week and ordered reunification services for
her. The Department placed infant Al. with
Mrs. J. where he flourished and remained throughout the dependency. The Department placed Aniya and J. elsewhere.
Although
she agreed to drug test, T. did not do so.
She ran out of money and had no place to stay. She drank alcohol at least every other night
even though she is taking Ativan, which should not be mixed with alcohol.
a. the
children
Aniya
was “ ‘easy going,’ †very talkative, inquisitive, and happy. She rarely threw tantrums and responded to
hugs if upset. J. was “very quiet and
shy,†loving, very friendly, and social.
He was also aggressive. In
September 2011, the Department reported that both children were receiving mental
health services. Aniya was
developmentally on target and not on medication. She had made progress in therapy where she
addressed appropriate social interaction and adjustment to foster care, and worked
to increase positive communication skills. Aniya’s caregivers were concerned that the
child demonstrated sexualized behavior and poor boundaries. They wanted her evaluated by a
psychiatrist. J. suffered from asthma
and has brachial palsy in his left arm, but was otherwise healthy. He was occasionally hyperactive and had
difficulty staying on task, but his caregivers had not received any calls from
the preschool about his behavior. He
would need an individualized education plan (IEP) for his speech and
developmental delays. He was also
receiving therapy and participated well in his sessions. Although he threw tantrums and was defiant
when he did not get his way, his mood, assertiveness, and self-esteem issues
showed improvement. Both children wanted
to go home to Twanna. Al., who had been
placed with Mrs. J., had bonded with her and was developing appropriately.
b.
visitation
T.
missed or cancelled without re-scheduling six of eight visits with the children
between early November and mid-December 2010.
By early March 2011, T. had missed full 50 percent of her visits without
explanation. She had 17 monitored visits
with the children in the three months between late June and the end of September
2011, but canceled or arrived too late seven other times. When she did visit, T. interacted appropriately
but struggled to provide attention to all three children. She fed and changed Al., took pictures of the
children, and talked to the older two about how they are doing. She sometimes read to them, played and
laughed with them.
T.
telephoned Aniya and J. three to four times a week to talk about their day and
well-being. The children did not appear
to have any behavioral issues before or after the calls. However, T. called at inappropriate times.
The
juvenile court terminated reunification services at the six-month review
hearing (§ 366.21, subd. (e)) in November 2011.
T. did not appear at that hearing and did not challenge the order.
3. Post-reunification
a. the
children
The
children were physically healthy and developmentally on track in March
2012. The older children were in
therapy. Aniya enjoyed music, dolls,
coloring, and drawing. She was already
able to dress and brush her teeth without assistance. She was “very smart†and had a “very good
memory.†J. liked music and playing ball. He used an inhaler. He had developmental delays, but he was
receiving help with his speech and was showing significant progress in
occupational therapy for his left arm.
Mrs.
J., Al.’s prospective adoptive parent, was interested in adopting all three
children, although she had not met the older two. To adopt them, Mrs. J. would have to move to a
larger home. The Department had completed
a homestudy for Mrs. J. and Al., but not for the older two children. The court set the permanency planning hearing
(§ 366.26) for September 2012 to give the Department time to conduct a
homestudy for all three children.
In
May 2012, the Department reported that Aniya and J. had been moved to a new
foster home because their former caregivers had to leave the state. The two children were happy, in good health,
and developing appropriately, although Aniya sometimes had trouble telling the
truth and J. wet the bed at night.
Aniya
and J. were again moved in August 2012, this time to Mrs. A.’s house where they
adjusted well and thrived. They were
developmentally on target. Mrs. A. found
Aniya to be charming, affectionate, and friendly. The child played independently and acted
older than her chronological age. She
bonded with Ms. A. whom she called “ ‘mommy.’ †Aniya was somewhat parentified and took care
of her younger brother. J. was happy and
healthy. He displayed some
aggressiveness and threw tantrums when he did not get his way. However, he was apologetic afterwards and was
easily redirected. J. did well with
structure and, despite the tantrums, was “generally a good boy.†The children were receiving appropriate
services. J. stated he loved and wanted
to stay forever with Mrs. A. Mrs. J.
remained interested in adopting all three children.
b. visitation
In the fall of
2011 and winter 2012, after reunification services were terminated, T. had
monitored visits with the children. When
visits occurred, the children appeared to be very happy to see Twanna, who
interacted appropriately with them. She
took photographs and brought them gifts.
T. telephoned the older children three to four times a week to talk
about their day. The children enjoyed
listening to Twanna’s voice and did not have any behavioral problems before or
after contact. The only problem
surrounding the calls was that T. telephoned at inappropriate hours.
No visits with
Aniya or J. occurred in December 2011 and January 2012. T. made excuses; either she had a black eye or
she was sick. Although she checked up on
the children through the social worker, it did not appear to the social worker,
based on these conversations, that T. was showing a genuine interest in making
arrangements to see the children. Of the
10 scheduled visits with Al. between March and May 2012, T. missed seven. During the three visits T. did appear, Al. was
uncomfortable with her and cried on and off during the entire visit.
A meeting was
scheduled in January 2012 to work out the visitation problems. T. did not appear for that meeting or at the
rescheduled meeting. She was
hospitalized on several occasions for various reasons, including thoughts of
harming herself, or because of injuries she sustained in fights. In May 2012, after Twanna’s attorney indicated
that T. was having trouble visiting, the juvenile court ordered the Department
to facilitate visits and to do its best to provide T. visitation funds.
However, visits
became so unstable that in August 2012, the Department moved for a modification
of the visitation order. T. frequently
disrupted the children’s stability and “sabotaged†their placements because she
was not in psychotherapy. T. telephoned the
children while intoxicated and harassed the caregivers causing Mrs. A. to
request Aniya and J. be removed. Although
T. often did not appear for visits, she did appear for one in early August 2012,
intoxicated and inappropriate. T. was
also argumentative and aggressive with the social workers. The juvenile court denied the request to modify
the visits.
Of
the thirteen visits scheduled from August 2012 to November 2, 2012, two were canceled and T. was
intoxicated during one. In the latter
months Twanna’s visits were more consistent and she behaved appropriately. Yet, claiming that J. was being sexually
abused in his foster home, she threatened Ms. A. and blocked the caregiver’s car. Although the Department began an
investigation into Twanna’s accusation, T. continued to cause commotions,
harass the caregiver, and call the police during visits.
In
the fall of 2012, T. entered an inpatient drug treatment program but failed to
complete it and left in October 2012.
The director of the program stated that T. was
“ ‘delusional’ †and “ ‘not rooted in reality.’ †The director opined that Twanna’s impulsive
and reckless behaviors would put the children in “grave danger of abuse and
neglect, if they were returned to her care.†The police found T. intoxicated in early
November 2012.
T.
did not visit the children at all between November 2012 and February 2013.
c. placement
with Mrs. J.
By
January 2013, Mrs. J. had moved to a larger apartment and had been approved to
adopt all three children. The Department
commenced Aniya’s and J.’s gradual transition to Mrs. J.’s care to minimize the
usual emotional upheaval associated with moving to a new home. All three children were placed with Mrs. J. by
late February 2013. The Department
recommended that the children be adopted.
In
May 2013, the Department found that Aniya and J. were adjusting to their new
home. Mrs. J. reported that, although
Aniya was parentified and acted older than her chronological age, with
encouragement, the child had been decreasing her parentified role and was
starting to enjoy being a child. J. was
displaying some aggressiveness and angry outbursts. However, after a tantrum, he was apologetic;
he did well with structure and could be redirected. He would benefit from psychological services,
but a court order was necessary to proceed. J. was comfortable with Mrs. J. and referred
to her as “mommy.â€
4. The
permanent placement hearing (§ 366.26)
T.
testified she was the children’s caretaker before they were detained but they
had been out of her custody for two and a half years. She admitted she had not seen the children at
all in January and February and had one visit in March 2013. She acknowledged her visits have been
monitored.
At
the close of the hearing, counsel for the children advocated for termination of
parental rights, observing that Al. has bonded with his prospective adoptive
parent, Mrs. J., the only caretaker he has known, and who has cared for him
nearly his entire life, and the other two were very young the last time they
lived with Twanna. The juvenile court
found the children are adoptable and T. failed to demonstrate an exception to
adoption. The court found it would be
detrimental to the children to be returned to their parents and terminated
Twanna’s parental rights. Twanna’s
appeal followed.
CONTENTIONS
T.
contends the juvenile court erred in finding the children are adoptable, and in
declining to apply the parental-relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).)
DISCUSSION
1. The
children are adoptable.
T.
contends that the juvenile court erred in determining Aniya and J. are
adoptable. She does not challenge Al.’s
adoptability.
“The
court may terminate parental rights only if it determines by clear and
convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing
evidence of the likelihood adoption will be realized within a reasonable time.†(In re
R.C. (2008) 169 Cal.App.4th 486, 491.)
In determining adoptability, “ ‘the court focuses on
condition and emotional state make it difficult to find a person willing to
adopt him.’ †(In re Josue G. (2003) 106 Cal.App.4th 725, 733; accord,
1642, 1649.) The juvenile court may also
consider the child’s progress in therapy, intellectual and academic growth, and
ability to develop interpersonal relationships.
(In re Sarah M., at p.
1651.)
On appeal, we
review the evidence in a light most favorable to the juvenile court’s finding
of adoptability, drawing every reasonable inference and resolving all conflicts
in support of the judgment. (
158, 165.) We do not reweigh the
evidence. (Ibid.) Our task is to
“determine whether there is substantial evidence from which a reasonable trier
of fact could by clear and convincing evidence find a factual basis for the
finding as to the child’s adoptability.â€
(Ibid.)
Based on their
characteristics, as the Department opined, Aniya and J. are clearly
adoptable. They are sufficiently young,
Aniya is only seven and J. is four. Aniya
is smart, independent, mature for her age, has a good memory, is affectionate,
charming, helpful, considerate, friendly, and easygoing. J. is “a good boy.†Both children are healthy. J. made progress in occupational therapy for
the brachial palsy in his arm, he was receiving speech therapy, and is
otherwise physically healthy and developmentally on track and thriving. Nor is there any suggestion that these
children’s emotional states would make it difficult to find an adoptive
parent. They are both happy. Even when he throws tantrums, J. is
apologetic. He does well with structure
and is easily redirected. Most
important, both of these children are able to develop interpersonal
relationships. They have bonded with
every one of their caregivers. There is
nothing about their age, physical condition, or emotional state that would make
it difficult to find someone willing to adopt these children within a
reasonable time. (In re Josue G., supra,
106 Cal.App.4th at p. 733.)
T. acknowledges
that the children “had several attributes that made them appropriate candidates
for adoption, as well as care providers who were committed to adopting them.†She nonetheless argues there is evidence the
children “may not be adoptable†and,
citing In re Carl R. (2005) 128
Cal.App.4th 1051, points to the following facts: J. was prescribed Adderall but never given
the drug and he wet his bed; Aniya displayed sexualized behavior, a lack of
boundaries, had trouble with telling the truth, and was parentified.
because unlike here, the child there had such pervasive disabilities that he
would “always require total care.†(
Here, after June 2012, bed wetting was not mentioned, and so that fact,
if it still persists, is not sufficient to overcome J.’s general adoptability. Likewise, the only reference to Aniya’s
sexualized behavior and boundary issues was made two years earlier and the
truth-telling issue was only mentioned once, and so these passing references do
not overcome Aniya’s adoptability. Moreover,
therapy has been effective for both children.
(In re Sarah M.,
only needed a court order to proceed. Although
a physician was willing to medicate J.’s hyperactivity, it appears that such
medication was not needed as it was not being used and the caregivers received
no complaints from his school. The
parentified behavior Aniya had been displaying has decreased with the
encouragement she receives from Mrs. J. By
comparison to Carl R., these children
are receiving all of the care and stability they need, none of which T. has
given or has been capable of giving to them.
Apart from the
children’s characteristics which make them adoptable, both Mrs. J., and Mrs. A.
are interested in adopting them. The
fact that a prospective adoptive parent has expressed interest in adopting the
children is evidence that the children’s characteristics are not likely to
dissuade others from adopting them. (
adoptive parent’s willingness to adopt generally indicates the minor is likely
to be adopted within a reasonable time either by the prospective adoptive
parent or by some other family.’ [Citation.]â€
(Id. at p. 491, quoting from
p. 1649.)
personal characteristics make them adoptable, with the result that sufficient
evidence exists supporting the juvenile court’s finding by clear and convincing
evidence.
2. The
parental relationship exception to adoption does not apply.
T. contends there
is no factual support for the juvenile court’s finding that Twanna’s progress
was too little too late and that the parental bond was not sufficiently great
to outweigh the benefit of permanent adoption.
Thus, she argues, the order terminating her parental rights is
erroneous.
At the permanency
planning hearing, the juvenile court must order one of three dispositional
alternatives: adoption, guardianship, or long-term foster care. (In re
S.B. (2008) 164 Cal.App.4th 289, 296-297.)
The Legislature has declared a strong preference for adoption over the
alternative plans if the dependent child is adoptable. (Id. at
p. 297.) Once the juvenile court finds
that the children are adoptable, “the court shall
terminate parental rights unless†the court “finds a compelling reason for
determining that termination would be detrimental to the child due to†one of
the six delineated exceptions. (§
366.26, subd. (c)(1) & (c)(1)(B), italics added.) Only if a compelling reason for applying an
exception appears may the court select a plan other than adoption.
The
exception to adoption on which T. relies is that found in section 366.26,
subdivision (c)(1)(B)(i), the so-called parental-relationship exception. This exception applies when the court finds
that (1) “[t]he parents have maintained regular visitation and contact with the
child and [(2)] the child would
benefit from continuing the relationship.â€
(§ 366.26, subd. (c)(1)(B)(i), italics added.) As the parent, T. bears the burden to show
application of this exception. (
247, 251.)
On appeal, both the sufficiency of the
evidence and the abuse of discretion standards apply. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315, citing
1339, 1351.) The substantial evidence
standard applies to the question of whether a beneficial parental relationship
exists. (In re Bailey J., at p. 1314.)
“[A] challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the ‘undisputed facts lead to only
one conclusion.’ [Citation.]†(Ibid.) The abuse of discretion standard applies to
the juvenile court’s determination whether the parental relationship
constitutes a “compelling reason for determining that termination [of parental
rights] would be detrimental.†(§
366.26, subd. (c)(1)(B).) That
assessment is “a ‘quintessentially’ discretionary decision, which calls for the
juvenile court to determine the importance
of the relationship in terms of the detrimental impact that its severance can
be expected to have on the child and to weigh that against the benefit to the
child of adoption. [Citation.]†(In re
Bailey J., at p. 1315.)
Turning
to the first prong of the parental-relationship exception, T. points to her
testimony that she maintained regular visitation with the children, although
she admitted only visiting them less than once a week over the previous six
months. Citing her own testimony, T. contends
she “can not [sic] reasonably be
considered to have not visited her children due to her stay in the
hospital. [Twanna] also cannot be
faulted for not visiting when [the Department] cut off visits when Mother was
available.†Although mother claimed she
did not visit in January 2013 because she was hospitalized, and in February and
March 2013 because the Department foiled her visits, the juvenile court here
was entitled to disbelieve Twanna’s testimony and her attempts to blame
everyone other than herself for the outcome of this dependency. (In re
Casey D. (1999) 70 Cal.App.4th 38, 52.)
The children were detained because of Twanna’s hallucinations and
psychotic episodes. As late as the fall
of 2012, the director of Twanna’s residential program found T. to be “ ‘
Turning to the whole record, it supports the juvenile court’s finding,
although T. did visit the children, sometimes regularly, more often than not
she failed to appear for scheduled visits and did not reschedule. She missed three-quarters of her
visits between early November and mid-December 2010 and half of the ensuing
visits by early March 2011. She again
missed many visits between late June 2011 and October 2011, and canceled or
arrived too late seven more times. T. had no visits between
December 2011 and May 2012 and again between November 2012 and January 2013. In mid-2012, Al. was uncomfortable with
T. and cried when visiting. By August 2012, T. had
become so difficult and inappropriate during the visits she had, that the
Department sought a court order, albeit unsuccessfully. As for telephone contact, although she
called the children more consistently, T. was frequently inappropriate. Finally, although toward the end of the dependency T. visited
more consistently, she continued to behave inappropriately and her consistency
came in the last months. Thus, the
record simply does not
reflect Twanna’s contention she regularly visited the children throughout the
dependency. Rather, the record supports
the court’s finding T. did too little too late.
Even if the juvenile court
believed Twanna’s testimony, T. failed to demonstrate the second prong of the
parental-relationship exception to adoption, namely that the children
“would benefit from continuing the relationship.†(§ 366.26, subd. (c)(1)(B)(i).) T. argues that, “despite a lack of day-to-day
contact, the minors have a loving relationship and parent-child relationship
with [Twanna] and would benefit from continuing the relationship.â€
“A beneficial
relationship is one that ‘promotes the well-being of the child to such a degree
as to outweigh the well-being the child would gain in a permanent home with
new, adoptive parents.’
[Citation.]†(
681, 689.) In applying the exception, courts
“balance[] the strength and quality of the parent-child relationship in a
tenuous placement against the security and sense of belonging that a stable
family would confer on the child.†(
parental relationship “is determined by ‘[t]he age of the child, the portion of
the child’s life spent in the parent’s custody, the “positive†or “negativeâ€
effect of interaction between parent and child, and the child’s particular
needs . . . .’
[Citation.]†(
1200, 1206.) “[I]f severing the existing parental 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 other words, if an adoptable child will
not suffer great detriment by
terminating parental rights, the court must select adoption as the permanency
plan. [Citation.]†(In re
Dakota H. (2005) 132 Cal.App.4th 212, 229, italics added.) However, “[t]he juvenile court may reject the parent’s claim simply
by finding that the relationship maintained during visitation does not benefit
the child significantly enough to outweigh the strong preference for
adoption.†(In re Jasmine D., supra,
78 Cal.App.4th at p. 1350.)
Here, although when she appeared for visits or made
telephone calls and was not intoxicated, T. interacted positively with the
children, without more, such contact was not enough. T. points to her behavior during her visits,
namely that she fed and changed Al.’s diapers, played with and read to the
older children. Yet, “[i]nteraction
between [a] natural parent and child will always confer some incidental benefit
to the child.†(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A merely friendly or familiar relationship is
not enough; a parental relationship is necessary for the exception to apply. (In re
Jasmine D., supra, 78 Cal.App.4th
at p. 1350.) “ ‘While friendships
are important, a child needs at least one parent. Where a biological
parent . . . is incapable of functioning in that role, the
child should be given every opportunity to bond with an individual who will
assume the role of a parent.’
[Citation.] Thus, a child should
not be deprived of an adoptive parent when the natural parent has maintained a
relationship that may be beneficial to some degree but does not meet the child’s
need for a parent. It would make no
sense to forgo adoption in order to preserve parental rights in the absence of a
real parental relationship.†(
Furthermore, Twanna’s interactions were not always
positive. Twanna’s claims that the children
cried at the end of visits are uncorroborated. Likewise unsupported are Twanna’s claims that
Aniya and J. were moved around to different placements because she telephoned
them often. The children were moved
because, among other things, T. called the placements excessively
recently, while intoxicated. Although early in the dependency the older
children indicated they wanted to be with Twanna, they ceased making such
comments two years ago. In any event, Twanna’s
visitation was monitored for almost the entire dependency and so she cannot
demonstrate that her bond with the children was sufficiently great to
outweigh the benefit of adoption. (In re Casey D., supra, 70
Cal.App.4th at p. 51.) Meanwhile, the children have bonded
with their caretaker who saw and are seeing to the children’s needs for shelter,
care, and security. Al. has been living
with Mrs. J. almost his entire life and knows no other parent. T. has not cared for Aniya and J. for three years,
i.e., more than half of their lives. “A biological parent who has
failed to reunify with an adoptable child may not derail an adoption merely by
showing the child would derive some benefit
from continuing a relationship maintained during periods of visitation with the
parent. [Citation.]†(In re
Angel B. (2002) 97 Cal.App.4th 454, 466.) Hence, “it is only in an extraordinary case
that preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.†(
DISPOSITION
The
order is affirmed.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
further statutory references are to the Welfare and Institutions Code, unless
otherwise noted.
is a party to this appeal.
