In re A.W.

Filed 6/1/06 In re A.W. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Roselle W. (mother) appeals the juvenile court order terminating parental rights to her minor children A.W. and J.W., and establishing adoption as the permanent plan (Welf. & Inst. Code, § 366.26).^[1] Mother contends that the court erred in terminating her parental rights because she maintained regular visitation with the children and they would benefit from a continuing relationship with her (§ 366.26, subd. (c)(1)(A)). We affirm.

FACTS AND PROCEDURAL HISTORY

On August 23, 2004, five-week-old J.W., two-year-old A.W., and thirteen-year-old D.B.^[2] were removed from their home after J.W. was diagnosed with battered child syndrome. J.W. and A.W.'s father, Kevin W. (father), was also residing in the home at the time of removal.^[3] The San Luis Obispo Department of Social Services (the Department) thereafter filed a dependency petition for all three children, alleging violations of subdivisions (a), (b), (e) and (j) of section 300. After a short stay in foster care, the children were placed with relatives.

The petition alleged that on August 22, mother took J.W. to the emergency room to obtain treatment for an injury to his left arm. The treating physician observed old and new bruising on the arm, and an x-ray revealed an ulnar fracture. Further examination revealed a fractured rib and clavicle. Mother told the doctor she believed that A.W. had caused the injuries when she attempted to remove J.W. from the bathtub. She also said that father was "rough" when he changed J.W. She was also overheard saying, "[h]e's so stupid. He's just dumb."

After the hospital notified the police department and child protective services of J.W.'s injuries, the child was transferred to the pediatric unit of another hospital. The following morning, all three children were removed from mother's home. A subsequent examination indicated that J.W.'s rib and clavicle fractures were several weeks old. The evidence also suggested that J.W.'s legs had been twisted nearly to the point of fracturing. An orthopedic specialist concurred with the diagnosis of battered child syndrome and noted the existence of six different bone fractures.

Dr. H. Howard Kusumoto, a designated expert on child abuse evaluations, concurred in the earlier diagnoses and findings regarding J.W.'s injuries. Dr. Kusumoto opined that a bruise on J.W.'s neck and his rib fractures were likely caused by "forceful grabbing." The doctor also observed multiple bone fractures in J.W.'s arms and legs that were probably the result of "pulling/jerking or twisting." Blood tests ruled out any possible hematological cause for the child's bruises.

The detention report also indicated that J.W. had suffered an abrasion on his nose when he was two and a half weeks old as a result of father bouncing him too roughly. J.W. was also treated on August 19 for a dislocated elbow, which mother believed was caused by A.W. pulling on his arm.

When mother was interviewed by the police on August 22, she denied harming J.W. When the Department interviewed her on August 24, she stated that father force fed J.W. and held him incorrectly. She admitted, "I thought he was doing something but never saw him other than handle [the] baby roughly and feed [him] inappropriately but [J.W.] always cried when [father] held him." She also stated that D.B. told her he had seen father pinching J.W.

When mother was interviewed again on September 3, she reported that she and father had separated and that she now believed he had abused J.W. She admitted that she had observed bruising on the back of A.W.'s legs when she was two months old, and that she spanked the child every day. She also stated that father smoked marijuana daily in front of the children, and that she believed he also used methamphetamine. In the course of a psychological evaluation, she also admitted that she had been told by her mother and a neighbor that father was abusing J.W. She also indicated she was "relieved" that the children had been removed because "if [J.W.] had those kinds of injuries at least he would be somewhere safe and couldn't be hurt anymore." She also admitted that although D.B.'s father had been convicted of physically abusing the child, she continued to allow him unsupervised contact with the child.

Based on his observations, the psychologist who evaluated mother concluded that she "has exhibited a chronic pattern of not acting with the best interests of her children in mind and that the breaking of this pattern can only occur over a period of time and with significant action and effort on her part."

When father was interviewed by the police, he said he believed he had accidentally caused J.W.'s arm injury by holding it too tightly while he changed his diaper. He admitted he may have bruised J.W. while playing with him. He also admitted he had gone to anger management classes after punching D.B. in the mouth. In a subsequent Department interview, he admitted smoking marijuana daily and that he interacted with the children while under the influence. He also admitted that mother had warned him he was bruising J.W. by holding him too tightly.

At the disposition hearing, mother testified that father was often impatient with J.W. and that she had criticized him for his rough handling of the child. She also admitted she knew that father had physically abused A.W. and D.B. In his testimony, father admitted that he smoked marijuana 15 to 20 times a day. He also admitted that mother had told him to be more careful when holding or playing with J.W.

At the jurisdiction and disposition hearing, the Department recommended that reunification services as to J.W. and A.W. be denied. The Department also concluded that mother's chronic history of neglect could not be corrected within the six-month reunification period.

At the conclusion of the hearing, the court found by clear and convincing evidence that the allegations in the petition were true. Accordingly, the court declared all three children dependents of the court, denied mother reunification services as to J.W. pursuant to section 300, subdivision (e), and as to A.W. pursuant to section 361.5, subdivisions (b)(5) and (6), and set the matter for a permanency planning hearing. Mother filed a writ petition challenging that order, which we denied on May 4, 2005. On May 13, 2005, mother filed a section 388 petition seeking reunification services as to J.W. and A.W. The Department opposed that petition, and it was denied after a hearing on September 9, 2005. Mother did not appeal the denial of that petition.

On May 13, 2005, the adoptions social worker assigned to the matter submitted a report concluding that both children were likely to be adopted by their paternal grandmother and her fiancé. The social worker indicated that both children had adjusted well in their new home. She also reported that although mother had been "gentle and polite" during her weekly visits with the children, J.W. preferred to stay with his grandparents during those visits, and A.W. played independently and sometimes displayed anger toward mother. A.W. also continued to exhibit extreme anxiety when asked about mother, and she "acted out" and expressed anxiety after their visits. The social worker believed that A.W.'s behavior following her visits with mother indicated that she was afraid of her. When contact with mother was reduced at the urging of A.W.'s therapist, the child's behavior improved. Regarding J.W., the social worker testified that he had not lived with mother since he was five weeks old and had spent more than a year with his grandparents, to whom he looked for his emotional needs. According to the social worker, J.W. "[did] not show any particular affinity or adversity toward his mother." The court appointed special advocate (CASA) also submitted a report recommending adoption as the permanent plan for both children.

At the section 366.26 hearing, the social worker testified that "[t]hings were going fairly well" since mother's visitation with A.W. had been reduced to one hour each week on the recommendation of the child's therapist. The social worker also recounted an incident two weeks earlier in which mother said she wanted to take A.W. home, which "brought on [A.W.'s] anxiety." As a result of mother's remark, A.W. was "not able to go to bed and need[ed] a lot of comforting and reassuring that she's going to remain in the caregiver's home with her little brother." Based on her observations of four visitations and her discussions with A.W.'s therapist, the social worker concluded that A.W. did not look to mother for emotional comfort or support. She also believed that mother occupied the role of a playmate, not a parent. She also noted that A.W.'s therapist agreed with these conclusions. The attorney appointed to represent A.W. also supported the Department's position that A.W. should be adopted.

At the conclusion of the hearing, the court terminated mother's parental rights to A.W. and J.W. and ordered the children placed for adoption. This appeal followed.

DISCUSSION

Mother contends the juvenile court abused its discretion in terminating her parental rights to A.W. and J.W. because she has maintained regular visitation with them and they would benefit from a continued relationship with her.^[4]

Pursuant to section 366.26, subdivision (c)(1)(A), the juvenile court is prohibited from terminating parental rights upon a finding that it would be detrimental to the minor because the parent has maintained regular visitation and the minor would benefit from a continuing relationship. This exception to adoption applies only if the parent demonstrates that severing the parent and child relationship would deprive the child of "a substantial, positive emotional attachment such that the child would be greatly harmed . . . ." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

"'In the context of the dependency scheme prescribed by the Legislature, we interpret the "benefit from continuing the [parent/child] relationship" exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.' [Citation.] [¶] The balancing . . . must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

In light of these principles, we conclude that the court did not err in terminating mother's parental rights. Although it is undisputed that mother maintained regular visitation with the children, she failed to make any showing that severance of the parent/child relationship would harm either child. As to J.W., who was removed from mother's custody when he was only five weeks old, mother concedes in her opening brief that there was effectively no parent/child relationship. As for A.W., the evidence demonstrates that the child views mother as a playmate instead of a parent, and that she looked to her grandmother for emotional comfort and support. Indeed, A.W. experienced anxiety when faced with the suggestion that she might be returned to her mother, and exhibited behaviors indicating that she was afraid of her.

Nevertheless, mother contends that her relationship with A.W. is "complex" and that "[t]he benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have." She also argues that while she and the children's prospective adoptive mother (the children's paternal grandmother) had "maintained a cordial relationship, there was tension that could prove detrimental to the children should it interfere with the continued relationship all parties envisioned outside of the termination order." We are not persuaded. Mother's visitation was limited because A.W. "acted out" and expressed anxiety after their visits, and expressed behaviors indicating that she was afraid of her. Moreover, "tension" between mother and the prospective adoptive parent is to be expected under the circumstances. As CASA reasoned, "the conflicts between the mother and grandmother are normal responses to a complex and traumatic situation." Although CASA also worried that "[t]he conflicted emotions between these important women in the children's lives could contribute to additional emotional stress for the children," CASA concluded that this possibility was insufficient to undermine the conclusion that the benefits from a stable and permanent home with their grandmother would outweigh any benefits they might derive from continuing a parent/child relationship with mother. Because mother failed to controvert this conclusion, the court did not err in terminating her parental rights and ordering the children placed for adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Zachary G., supra, 77 Cal.App.4th at p. 811.)

The order of the juvenile court is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Teresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

James B. Lindholm, Jr., County Counsel, Patricia A. Stevens, Deputy County Counsel, for Plaintiff and Respondent.

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^[1] Further statutory references are to the Welfare and Institutions Code.

^[2] The orders pertaining to D.B. are not at issue in this appeal.

^[3] Father, who was ultimately convicted of felony child abuse of J.W., is not a party to this appeal.

^[4] Mother argues the appropriate standard of review is abuse of discretion rather than the substantial evidence test. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) She acknowledges, however, that the practical differences between the two standards of review are not significant. Under either standard of review, our resolution of this case would be the same.