In re L.H.

Filed 3/7/07 In re L.H. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Elisa H. appeals from the order of the juvenile court terminating her parental rights to L. H. pursuant to Welfare and Institutions Code section 366.26.[1] She describes the issue presented in this appeal as "Whether the section 366.26, subdivision (c)(1)(A) exception to adoption was triggered where an eight-year-old child wanted to both live with her caretakers and continue the relationship she had with a mother she loved; especially in light of the court's recognition of the strength of the parent/child relationship and favoring open adoption." We affirm.

Background

L. was touched inappropriately by appellant's father. Appellant herself had been molested by him when she was a girl. In 2004, appellant's mother was ill. Although appellant's father lived in the same home, appellant moved with L. into her parents' home in Stockton to care for her mother. In 2004, L. disclosed that her grandfather had touched her again.

In July 2004 dependency proceedings were initiated and, after a jurisdictional hearing, a petition was sustained when the juvenile court found that L. was a person described by Welfare and Institutions Code section 300, subdivisions (b), (d), and (g). L. was placed with appellant.

Appellant and L.'s father Mr. H. moved to San Jose and, in January 2005, the dependency case was transferred to Santa Clara County for disposition. Although family maintenance services were recommended at first, concern over L. being exposed to domestic violence led the Department of Family and Children's Services to file a section 342 petition. Following a detention hearing, the juvenile court ordered L. to be detained.

In a report dated March 25, 2005, the social worker said that appellant had stated that Mr. H. "would call her names and has hit her in front of L." and that "his two catch phrases to her are 'fat bitch' and 'I am going to beat the shit out of you.' " L. had said that "she has witnessed her father push her mother with the door, and has heard him call her names, and make her cry."

The social worker wrote that L. "was concerned as to how mother was coping without her being there for her. . . . L. appears generally concerned for her mother's well being, similar [to how] a parent would be for a child." L., who was in kindergarten, was attending her fourth elementary school. The social worker was concerned about the multiple living arrangements "which is expected when there are issues of domestic violence and substance abuse." L. said that she loved both of her parents but wanted to go home with her mother.

On April 22, 2005, the court ordered reunification services for appellant. Although appellant demonstrated minimal compliance with the case plan, she maintained regular visitation and L. enjoyed the visits because she and appellant "play[ed] a lot." The November 2005 status review report described efforts to place L. with a relative. Although she had experienced "difficulties both academically and socially" during kindergarten, L. was now in the first grade and was doing "extremely well" She enjoyed living with her foster parents and looked forward to visiting her parents. She did not "display any adverse behaviors after her visits with her parents have concluded." L.'s foster parents were ready to transition from being an emergency satellite placement to a concurrent placement. By the time of the 12-month review, the social worker recommended that the trial court terminate reunification services and set the matter for a section 366.26 hearing.

The report prepared for the section 366.26 hearing said that appellant had only minimally complied with the case plan and was sometimes homeless, living out of her car. Her relationship with Mr. H. was described as "confusing, inconsistent, and unstable." The report said that L. would begin second grade in a few weeks and was looking forward to the new school year. L.'s therapist described her as "very resilient and adjusting very well to her placement." L. understood "that her living situation is due to nothing that she did but rather is [a] consequence due to her parents' behaviors and choices. (The child) understands that her mom and dad love her and she loves the[m], as well. (The child) accepts her living situation and appears very well adjusted and bonded to the prospective adoptive parents."

The report noted that "the prospective adoptive parents are very understanding of how connected the child is with her biological mother. The prospective adoptive parents are willing to maintain future contact with the mother. Though the prospective adoptive parents are open to continued contact between the child and the biological mother, they would like to emphasi[ze] that once the adoption is finalized, continued contact will be done at their discretion and may be very minimal." The report said that the social worker had met with L. who told the worker that "she hoped she could live with the prospective adoptive parents forever and still have visits with her mom and dad." Both the foster mother and L.'s therapist had explained to her "in the best age-appropriate way" the concept of adoption.

On August 9, 2006, counsel for L. told the court that L. had been interviewed and had said that she liked her foster home very much and wanted to "stay there forever." Counsel said that adoption had been explained to her, "what it meant, what it was, and she appeared to understand that." Counsel said that L. stated that "her mother is nice now. And she does like spending time with her, but wants to stay with her foster mother, the foster mom. And she stated when asked, if she had three wishes, she stated her first wish was to live with her foster mother forever, second wish was she wanted to spend more time with her foster dad, he works a lot, and third, was to have family time with her foster family."

At the selection and implementation hearing held August 28, 2006, the social worker testified as an expert in risk assessment and the evaluation of permanency planning options for dependent children. L. had been living with her foster parents for about a year and a half after living with appellant for her first six years. He said that L. was "very adoptable" because she was "a very intelligent, engaging child who loves to please the people that she lives with. She's very smart." The social worker had monitored appellant's visits with L. He testified, "Mother and daughter play very much like sisters." He said that their relationship "resembled more like that of a sibling relationship or maybe an aunt with a niece." He said that appellant was "very appropriate" in her interactions with L. Some of their activities were ones that a parent would engage in with a child, such as reading a book together. When appellant told L. that she loved her, L. said, "I love you too, Mom." He said that when the visits ended and L. was transported back to her foster parents she "did not exhibit any emotional or adverse behaviors."

The social worker had discussed adoption with L. When he told her that adoption would mean that the foster parents would provide her a permanent home until she turned 18, she said that she wanted to live there forever. He said that L. was "very connected" with her mother and that they had a "very special relationship" but that, according to her therapist, she did not engage in "magical thinking that somehow, somewhere down the road that Mom or Dad are going to get her back." L. was "okay with" having her last name changed, but wanted to keep her old last name as her middle name after the adoption.

The social worker testified that adoption was in L.'s best interest. The social worker testified that the prospective adoptive parents had always taken L.'s best interests into account and that if they made the decision to stop permitting visits between L. and her parents he would still believe that adoption was in her best interest.

Appellant testified that she and L. had a "special relationship" and that they "were always together." During the six and a half years that they lived together she dressed her, bathed her, fixed her meals, read books with her, did homework with her, and took her to school on their bicycles. Sometimes they would ride bikes in the park because bike riding "was her favorite thing." At night, appellant would rub L.'s back or stomach until she fell asleep. Appellant had a pass for Marine World and they went almost every weekend with appellant's sister and her children.

Appellant testified that although L. was comfortable where she was, her bond with her was "deeper," "emotional," and "mental." Appellant predicted that if L. were never to see her again she would have emotional problems and the prospective adoptive parents would start having problems with her.

Counsel for L., referring to In re Autumn H. (1994) 27 Cal.App.4th 567, argued that although L. enjoyed her visits with her mother, that relationship did not outweigh having a permanent stable home.

The juvenile court said, the "crux of the case comes down to this balancing that [counsel for L.] just referred to which is really balancing whether or not the relationship that either or both parents have with [L.] compared to the potential benefits of finding a stable loving home for her." The court said, "I think in many ways what you see in [L.] is that she did have very good bonding and parenting" from her parents. She said that L. would have a "rapport and love" for Ms. H. that "she'll have [for] the rest of her life." The court said that this was a "very special case." The court said that it would support an open adoption and requested that the social worker meet with the prospective adoptive parents to discuss that. The court found L. adoptable and terminated appellant's parental rights.

Discussion

Appellant contends, "Substantial evidence failed to support the determination to terminate [appellant's] parental rights when she visited L. on a regular basis, assumed a parental role to the extent visitation permitted and shared a significant, positive relationship with her daughter."

The exception of section 366.26, subdivision (c)(1)(A) applies where: "The parents [or guardians] have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." To meet the burden of proving the section 366.26, subdivision (c)(1)(A) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show that he or she occupies a parental role in the life of the child. (Ibid.) In re Autumn H., supra, 27 Cal.App.4th 567, 575, defined this relationship as 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. 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." The determination is made on a case-by-case basis, taking into consideration all pertinent factors. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) It is important to recall that at the point in the proceedings at which the juvenile court makes this determination, the child's interest in a permanent home is paramount. Reunification is not an issue. There must be a compelling reason for applying the parental benefit exception. (Ibid.) Determining whether the exception applies is a "quintessentially discretionary determination." (Id. at p. 1351.)

It is an extraordinary case when preservation of a parent's rights at this juncture would prevail over the Legislature's preference for adoptive placement. (Ibid.) We review the judgment for substantial evidence.[2] (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Appellant argues that "continuation of the parent-child relationship would promote [L.'s] well-being to such a degree as to outweigh the well-being [L.] would gain in a permanent home with new, adoptive parents when [L.] could enjoy her current living situation and continue to be a part of two families through guardianship." The court expressly considered this option when it described the "balancing act" of deciding this case. The court recognized that "giving her an adoptive home really guarantees her a much higher level of commitment from those people than to proceed on a plan of guardianship."

We find substantial evidence to support the juvenile court's determination here. There is evidence in the record that appellant loved L., that she visited her as frequently as she was allowed, and that L. enjoyed her visits. The record shows that there was a close and loving bond between the two. However, that is not enough. Appellant was obligated to show that her relationship with L. was so beneficial to L.'s welfare that severing it would cause L. to be greatly harmed, outweighing the well-being she would gain in a permanent home with new adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) From all reports, L. was a resilient child who, whether through appellant's loving care or the girl's innate personal strength, came through her first six years in good shape despite having been exposed to family conflict and numerous moves. A child of her age could certainly be expected to remember some of her experiences with her early caretakers with fondness, but this does not diminish the importance of stability and security to her well-being. That L. could simultaneously express her love for her mother, while asserting that she wished to live with her prospective adoptive parents forever, suggests that even she understood that her longing for permanence was greater than her need to preserve her bond with her mother. We hope that the prospective adoptive parents will respect this bond, and support a continued relationship between L. and appellant. However, the record supports the juvenile court's finding that L. would not be greatly harmed by termination of appellant's parental rights.

Disposition

The order appealed from is affirmed.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] Although appellate courts routinely have applied the substantial evidence standard when reviewing termination orders, some courts have ruled that the appropriate standard is abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Appellant argues that the abuse of discretion standard is a "better fit in cases like this one." Appellant acknowledges that "the practical differences between the two standards of review are not significant." Under either standard the juvenile court's decision here must be affirmed.