In re Jordan W.
Filed 11/12/13 In re Jordan W. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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 FOUR
In re JORDAN W. et al.,
Persons Coming Under the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
LISA W.,
Defendant and Appellant.
B248813
(Los Angeles County
Super. Ct. No. CK65309)
APPEAL
from an order of the Superior Court
of
County, Amy Pellman, Judge.
Affirmed.
Roland
Koncan, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Peter
Ferrera, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Lisa
W. (Mother) appeals the order terminating her
Institutions Code section 366.26 over her two children, 14-year old Jordan and
11-year old “Jamie.â€
name="_ftnref1" title="">[1] Finding no error, we affirm.
The children
were adopted by Mother and her former husband (Father) after being removed at
birth from their biological parents due to pre-natal drug exposure. In 2006, a dependency proceeding was
commenced as the result of physical abuse by Mother, domestic violence between
Mother and Father, Father’s abuse of alcohol, and Mother’s abuse of
methamphetamine.
title="">[2] Mother completed services and reunited with
the children in February 2009.
name="_ftnref3" title="">[3]
The
(DCFS) became involved with the family again in June 2011, when Jordan arrived at school with a black
eye. He was questioned and revealed that
Mother had hit him with a belt. He
further reported that she regularly hit him with a belt as a form of
discipline, leaving purple and red marks on his body, and would close the doors
and windows so no one would hear. Jordan had a bruise on his leg where Mother
hit him with her hand a week earlier. In
addition, she sometimes pulled his hair.
She warned him not to tell anyone about the abuse or he would be taken
away. Jordan and Jamie reported that
Mother also hit Jamie with a belt.
Mother’s male companion reported that Mother hit the children with a
belt on their buttocks to “discipline†them approximately once a week. On the day of the most recent incident, Mother
claimed to have hit Jordan on the leg with the belt and said that
he must have injured his eye in some other fashion.
he was difficult to discipline due to attention deficit hyperactivity disorder
(ADHD).
The children
were detained and Mother was provided monitored
visitation. DCFS was ordered to immediately
begin providing anger management counseling and individual counseling for
Mother. In the period following the
detention, Mother visited the children regularly. In addition, Mother began attending
anger management classes. The
children stated they wanted to return to Mother.
Interviewed
prior to the jurisdictional hearing, Jordan stated that Mother regularly hit him
when he got in trouble, leaving bruises all over his body. She also pulled his hair and dragged him
across the floor. On the day he
sustained the black eye, Mother’s companion had tried to hold her down to stop
her from hitting Jordan.
Jordan said he wanted a new family or a “nicerâ€
family. Jamie reported being hit and
also having her hair pulled. Mother admitted
hitting the children with a belt, but said she did not do it regularly and
claimed she only hit their buttocks. She
claimed it did not hurt them and that they “laugh[ed]†when she did it. The caseworker stated that “the children have
suffered from years of continued abuse by [Mother],†that Mother “lack[ed] the
ability to practice self-restraint and the ability to use proper anger
management skills when dealing with her children and her companion,†and that
despite the services provided, Mother “failed to learn more effective ways of
controlling, disciplining, and teaching her children, especially Jordan who has
special needs . . . .†DCFS
recommended no reunification services for Mother under the exception applicable
where there has been a prior proceeding involving the same children and the
abuse is repeated. (See § 361.5, subd.
(b)(3).)
In September
2011, the court ordered a psychological
evaluation of Mother. The court
requested the expert to address whether returning the children to Mother was
appropriate or likely. The psychologist concluded
Mother suffered from no serious mental illness, just “poor coping skills,†“low
frustration tolerance,†and “a chronic, moderate level of depression.†The psychologist recommended that Mother be
provided reunification services based on the children’s attachment to her and
her love for them. The psychologist believed
that although Mother was “functioning at a very marginal level†and “t[ook] longer
than some parents to respond to interventions,†she had “the ability and
motivation to do so.†During the
interview, the psychologist learned that Mother had never informed the children
they were adopted and had led them to believe she had given birth to them. She recommended that Mother’s therapist devise
a plan for telling the children the truth.
In November
2011, after several months in foster care, the children were placed with Helen
P., a family friend, with whom they had lived during the prior dependency proceeding. The children adjusted well to the placement
and felt safe. They began referring to Helen
as “Nana†and to Helen’s daughter as their “sister.†Jordan was enrolled in athletic programs,
his academics improved, and he began to enjoy school. Jamie began participating in cheerleading and
gymnastics, and making progress in meeting grade level standards. Helen ensured that the children participated
in therapy and wraparound services and received the medication prescribed for
ADHD.
At the
November 2011 jurisdictional/dispositional hearing, the court found true that
Mother physically abused Jordan “by repeatedly striking [his] face and shoulder
with a belt, inflicting bruising and swelling to [his] eye and shoulder,†striking
him with belts on numerous prior occasions, and bruising his leg with her hand;
the court also found true that Mother abused Jamie by striking her with a belt. The court found jurisdiction appropriate
under section 300, subdivision (a) (serious physical harm). The court ordered reunification services for Mother,
including an anger management program, individual counseling, conjoint
counseling with the children, and parenting classes or group counseling for
parents of children with ADHD.
After the
jurisdictional/dispositional hearing, Mother participated in all the required
programs. On April 12, 2012, she filed a
section 388 petition for a modification seeking return of the children under a
family maintenance program or unmonitored overnight visits, claiming to have
addressed the issues that brought the family before the court. The court set a May 16 hearing on the
petition. The caseworker interviewed the
children prior to the hearing. Jamie was
opposed to unmonitored visits or being returned to Mother; she was afraid
Mother would “be like she was before†once services were withdrawn. Jordan seemed ambivalent when asked about unmonitored
visitation with Mother or return to Mother and became irritated and withdrawn.
providers to confirm Mother’s progress. The
caseworker expressed concern that Mother had not made sufficient progress and
was continuing to minimize or hide her conduct. DCFS recommended six more months of services,
more intensive therapy for Mother, and continued monitored visits. The court ordered a contested hearing on
visitation and the section 388 petition was withdrawn.
In July 2012,
the court directed the children’s therapists to tell them they were adopted and
to begin conjoint therapy with Mother when the therapists deemed it
appropriate. The children were told about
their adoption later that month in a joint therapy session. Mother was offered the opportunity to be present,
but said she was “not ready.†After
being informed about their adoption, the children began refusing to visit
Mother other than at public or school events.
They expressed the belief that Mother had not changed, and that they
would be abused again if they returned and would end up back in foster
care. They expressed their desire to stay
with Helen and to be adopted by her. In
November, the court suspended Mother’s visitation outside of a therapeutic
setting. A few conjoint therapy sessions
took place, but the children did not wish to continue. In December, the court found Mother not in
compliance with the case plan and terminated reunification services.
By the April 17,
2013 section 366.26 hearing, the children were refusing all interaction with
Mother, including telephone calls and conjoint therapy. The caseworker explained that the children had
detected no meaningful changes in Mother during their visits. As it could not be said that Mother had a
parental role in either child’s life or that her relationship with them was
beneficial, DCFS recommended termination of parental rights. Mother did not appear at the hearing. Counsel for Mother made the following
statement on her behalf: “In light of
the order . . . ceasing . . . all Mother’s visitation with the
children, I explained to [her] that I was not going to be able to raise [the
regular visitation] exception, and the children, I believe, are also wanting to
be adopted. She would just like me to
state, for the record, that she’s very sad and that she believes the children
have been brainwashed into wanting to be adopted. She would object to [parental] rights being
terminated.†The court found by clear
and convincing evidence that the children were adoptable, that it would be detrimental
to return them to their parents, and that no statutory exception to adoption
applied. The court terminated parental
rights over the children. Mother
appealed.
At the section
366.26 hearing, the court may order one of three alternatives for the children
-- adoption, guardianship or long-term foster care. (§ 366.26, subd. (b).) If a child is adoptable, there is a strong
preference for adoption over the other alternatives. (Id.,
subd. (c)(1); San Diego County Dept. of
Social Services v. Superior Court (1996) 13 Cal.4th 882, 884-885.) Here, there was no dispute that the children
were likely to be adopted if parental rights were terminated. Accordingly, the burden was on Mother to
demonstrate that termination of parental rights would be detrimental to the
children under one of the exceptions listed in section 366.26, subdivision
(c)(1). (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.)
Mother contends
on appeal that the exception contained in section 366.26, subdivision
(c)(1)(B)(i) applied. That provision
provides an exception to termination of parental rights where “[t]he parents
have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.†At the section 366.26 hearing, however, Mother’s
counsel conceded that regular visitation had not occurred and that this
exception did not apply. “The juvenile
court does not have a sua sponte duty to determine whether an exception to
adoption applies.†(In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) A parent’s failure to raise before the
juvenile court the regular visitation and benefit from relationship exception (now
found in subdivision (c)(1)(B)(i), previously in (c)(1)(A)) results in
forfeiture of the issue, and the existence of the exception cannot be raised on
appeal. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; see also
parent failed to raise exception applicable where foster parent unwilling or
unable to adopt]; In re Erik P. (2002)
104 Cal.App.4th 395, 401 [applying forfeiture rule when parent failed to raise
sibling exception].) Accordingly, Mother
has forfeited this issue.
Moreover, even
were we to reach the merits, we would find no error. “‘Because a section 366.26 hearing occurs
only after the court has repeatedly found the parent unable to meet the child’s
needs, it is only in an extraordinary case that preservation of the parent’s
rights will prevail over the Legislature’s preference for adoptive
placement.’†(In re T.S., supra, 175
Cal.App.4th at p. 1039, quoting In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The court must find that the parent-child
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,†and that severing the relationship “would deprive the child
of a substantial, positive emotional attachment such that the child would be
greatly harmed . . . .†(
567, 575.)
The evidence
was overwhelming that the benefits of adoption by Helen far exceeded any
benefit to the children from continuing the relationship with Mother. Mother had physically abused the children throughout
their young lives. The children were
nine and 11 when they were removed in June 2011, and had been out of her care
for almost two years at the time of the section 366.26 hearing. They had previously been out of Mother’s care
more than two years in connection with the prior proceeding. Despite the services provided from 2006
through 2009, Mother continued to regularly beat the children hard enough to
leave bruises and marks. Helen had taken
the children into her home twice, and both times had provided an environment where
the children felt safe and secure. She
ensured that they engaged in healthful activities and that their therapeutic
needs were met so they could succeed academically. The children were closely bonded with Helen,
whom they called Nana, and her daughter, whom they regarded as a sister.
It is often
said that to establish the exception contained in section 366.26, subdivision
(c)(1)(B)(i), “the parents must do more than demonstrate ‘frequent and loving
contact’ [citation], an emotional bond with the child, or that the parents and
child find their visits pleasant.
[Citation.]†(
1093, 1108-1109, quoting In re Beatrice M.
(1994) 29 Cal.App.4th 1411, 1418-1420.) Here,
the evidence did not even demonstrate pleasant visits, an emotional bond, or
frequent and loving contact. Mother had
not visited the children other than in public and therapeutic settings for many
months. The children believed her to be
unchanged and deceptive. They wanted
nothing more to do with her. In this
situation, termination of parental rights would have been unavoidable, even had
Mother raised the issue of an exception at the section 366.26 hearing.
The order
terminating parental rights is affirmed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.
to the Welfare and Institutions Code. To
preserve the girl’s privacy, we use a pseudonym instead of her rather unusual
name.
allegations that “[o]n numerous occasions,†Mother had abused Jordan by
striking him with a belt and a hanger, and had abused Jamie by striking her
with a belt. There had been four earlier
referrals alleging physical abuse of the children, in September 2004, April
2005, and January and April 2006. On the
first occasion, Jordan had a black eye; on the second, he had marks on his face
and arm. The 2006 referrals included the
allegation that Mother had hit four-year old Jamie with a paddle, with
sufficient force to break the paddle. In
2007, during the prior dependency proceeding, Jamie returned from an overnight
visit with a bruise on her cheek from having been slapped by Mother.
