In re Joseph M.

Filed 6/8/07 In re Joseph M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, W. Andrew Hartzell, Chief Deputy County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.

C.M. appeals from an order terminating parental rights to three of her sons. Her sole appellate contention is that the juvenile court erred by finding that the so-called beneficial parental relationship exception to termination (Welf. & Inst. Code,  366.26, subd. (c)(1)(A)) did not apply. As we find ample support for the juvenile courts finding, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

C.M. (the mother) and Joseph M., Sr., (the father) had three sons together ‑‑ K.M., now aged 12; P.M., now aged 11; and Joseph M., Jr., now aged 3.

On February 28, 2005, the father reported to the police that he and the mother had had a physical fight and that Joseph had been in his arms at the time. K.M. confirmed this. The mother agreed that the fight had occurred (but denied that any of the children had been involved). The police found several potentially deadly or dangerous weapons in the fathers car.

Both parents had a history of substance abuse, as well as a history of domestic violence. In addition, the mother showed signs of some kind of mental problem, probably bipolar disorder. K.M. and P.M. had been the subject of previous dependency proceedings, filed in 1995 and terminated in 1997.

Both parents were arrested, and the boys were detained. On March 2, 2005, the Department of Childrens Services filed dependency petitions as to all three boys.

Later in March, the mother pleaded guilty to misdemeanor child endangerment. (Pen. Code,  273a, subd. (b).) The father pleaded guilty to possession of an unlawful weapon. (Pen. Code,  12020, subd. (a)(1).) They were both placed on probation. They then got married.

In May 2005, the juvenile court found jurisdiction based on risk of serious physical harm (Welf. & Inst. Code,  300, subd. (a)) and failure to protect (id., subd. (b)). It ordered that reunification services be provided. It placed the children with the paternal grandparents.

In June 2006, at the 12-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).

At the section 366.26 hearing, in October 2006, the mothers counsel argued that the beneficial parental relationship exception applied. The juvenile court, however, found that the evidence did not support the exception. It also found that the boys were adoptable. It therefore terminated parental rights.

II

THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

The mother contends the juvenile court erred by finding that the beneficial parental relationship exception did not apply.

A. Additional Factual and Procedural Background.

The section 366.26 hearing took place on October 31, 2006. The evidence before the juvenile court at the hearing consisted of the social workers report for the hearing, the adoption assessment, and the mothers testimony. It showed the following.

The children had been placed with their paternal grandparents since May 2005. Since then, their emotional, physical and academic status ha[d] greatly improved . . . . The prospective adoptive parents were committed to adoption. They were loving, caring and nurturing individuals who were continu[ing] to meet [the childrens] physical, emotional, social, . . . and medical needs.

In the social workers opinion, the children were desperate for stability. Each of the boys had developed a significant attachment with his prospective adoptive parents. K.M. told the social worker that he wants to be adopted by his grandparents because they do not argue and fight. [H]is grandparents love him and his brothers and will keep them until they are adults. [H]e is excited and happy to be getting adopted because he does not want to be in the system anymore.

Similarly, P.M. said that he wants to be adopted by his grandparents because he loves them and they love him. [H]is grandparents are his family and . . . he wants to live with them forever. [H]e enjoys living in the home and he does a lot of fun things such as going on trips in the RV. [H]e understands that adoption is permanent and . . . he wants to live with his grandparents forever.

Joseph was too young to express a preference, but he appear[ed] to be happy and comfortable in his current placement.

Visitation had been problematic and . . . detrimental to the boys. [E]motional distress . . . occurs at or following almost every visit . . . . During visits, the parents would exchange words, which appeared to cause K.M. and P.M. anxiety and/or distress . . . . K.M. and P.M. ha[d] consistently told [the] [s]ocial [w]orker that they do not want to go to visits.

At a visit in September 2006, the mother remarked to K.M., [W]ell, [adoption] is what YOU wanted. According to the social worker, [t]his resulted in a very unpleasant verbal sparring match between [K.M.] and [the] mother. K.M. told the paternal grandmother that the visit was a wasted two hours, then refused to talk about it.

In June 2006, the juvenile court had ordered visitation reduced to two hours a month. The mother testified that previously she had had visitation once a week. In the four monthspreceding the section 366.26 hearing, she had had only one visit; she testified that she had tried to arrange more but without success. After that, visitation had been suspended or terminated.

The mother testified that theres bonding between us very strongly. During visits, the children seem[ed] excited yet distant. Being told we couldnt talk about some things was a hardship; it made the visits frustrating.

According to the mother: The last visit [K.M.] started sharing some things with me to the opposite of what Im being told they are saying, they want adoption. And [P.M.], and it was little things said here and there, and Im hearing to the contrary. My children are saying they want to be adopted. And thats not what they told me. So the visits got tense. . . .

The child says, you know, Im horrible. How are you ‑‑ Im horrible too. And the allegations that were stated. What about you[,] Mom[?] And I said well, isnt this what you want? Why do you say things that arent true[?] And then it was turned around. And my visits were cancelled.

B. Analysis.

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (Welf. & Inst. Code,  366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to six statutory exceptions. (Welf. & Inst. Code,  366.26, subds. (c)(1)(A)-(c)(1)(F).) The only one relevant here is the beneficial parental relationship exception. (Welf. & Inst. Code,  366.26, subd. (c)(1)(A).) It applies when [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.)

We have interpreted the phrase benefit from continuing the relationship to refer to a parent-child relationship 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. 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. 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 parents rights are not terminated. [Citations.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.] (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

We must affirm a trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.] (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because the mother had the burden of proof, we must affirm unless there was indisputable evidence [in her favor] -‑ evidence no reasonable trier of fact could have rejected . . . . (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

There was no indisputable evidence that the boys would benefit more from continuing their relationship with the mother than from adoption. They had developed a positive and loving parent-child relationship with the prospective adoptive parents. According to the social worker, both K.M. and P.M. said that they wanted to be adopted by them. This was sufficient evidence ‑‑ even standing alone ‑‑ to support the juvenile courts ruling. The juvenile court was not required to believe the mothers self-serving (and somewhat disjointed) testimony that K.M. and P.M. had said something different to her, particularly in light of minors counsels representation to the court that K.M. and P.M. were in favor of the recommendation . . . .

The mother argues that her visitation (unlike the fathers) was positive. Not so. K.M. and P.M. told the social worker that they no longer wanted to go to visits at all. The mother herself testified that the visits had become frustrating and tense. She described the children as excited yet distant. Admittedly, the social worker reported that the inappropriate behavior during visits was usually on the part of the father. (Italics added.) The social worker also reported, however, that both parents would exchange words, which upset both K.M. and P.M. As domestic violence was the precipitating cause of the dependency, this was particularly counterproductive. Also, at the final visit, it was the mother who said to K.M., [W]ell, [adoption] is what YOU wanted, which resulted in a very unpleasant verbal sparring match between [K.M.] and [the] mother. Afterwards, K.M. was visibly upset.

The mother claims that she was just misunderstood: The social worker interpreted Mothers statement as argumentative but Mother was trying to determine whether [K.M.] did want to be adopt[ed.] This is asking us to resolve a conflict between the social workers report and the mothers testimony; that is the juvenile courts job, not ours. We note, however, that even based on the mothers own testimony, her question was indeed argumentative. She testified that she said: [W]ell, isnt this what you want? Why do you say things that arent true[?] (Italics added.)

Finally, the mother also relies on reports and testimony submitted in connection with earlier hearings. These, however, were not in evidence; accordingly, the juvenile court could not consider them. If the mother wanted this evidence considered, her counsel had to introduce it at the section 366.26 hearing. (See Welf. & Inst. Code,  366.26, subd. (b) [[a]t the hearing, . . . the court . . . shall review the report . . . , shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders], italics added.)

In sum, the juvenile court reasonably could find that the boys would not be harmed ‑‑ much less greatly harmed (see In re L.Y.L., supra, 101 Cal.App.4th at p. 953) ‑‑ by the severance of their natural parent-child relationship with the mother.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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