In re Matthew D.

Filed 7/6/07 In re Matthew D. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jon E. Stuebbe, Judge.

Candace S. Heidelberger, under appointment by the Court of Appeal, for Defendant and Appellant.

B.C. Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, M.D., appeals from the order of the juvenile court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26.^[1] Appellant contends the court erred in failing to acknowledge her argument that termination would be detrimental to her children based on the beneficial relationship exception ( 366.26, subd. (c)(1)(A)). We disagree and will affirm.

FACTS AND PROCEEDINGS

Earlier Petitions

A section 300 petition was filed on July 19, 2000, alleging that the two minor children Matthew D. (then age 3) and Monica D. (then age 1) were at risk of suffering serious physical harm because they were residing in a home where methamphetamine was being manufactured. The petition alleged their parents failed to protect the children because both were using controlled substances that impaired their ability to provide the children with proper care, the father would drink alcohol until he would pass out, the children were filthy and inadequately clothed, the mother was diagnosed with a mental illness, and the parents failed to seek help for Matthews speech problem that left him only able to communicate with simple words and gestures. The petition alleged that both parents failed to support their children financially and emotionally due to incarceration in penal facilities. After contested jurisdiction and disposition hearings, they were adjudged dependents of the court and placed in a foster home. The parents were provided with reunification services.

Both children were generally healthy, but Matthew was unstable on his feet and appeared to have a problem with his speech. Monica had two thumbs on her right hand that could be corrected by surgery. Matthew was outgoing and friendly while Monica was more reserved.

During a six-month review hearing conducted on May 14, 2001, it was noted that both parents had been incarcerated but still participated in whatever services were available to them. The social worker did not recommend termination of services to the parents at that time. A 12-month review hearing was conducted on September 6, 2001. Appellant was actively participating in reunification services and maintaining regular visitation with the children. Appellant had been released from jail in March 2001, attended substance abuse counseling, and was involved in an outpatient mental health counseling program. Services to both parents were extended.

An 18-month review hearing was held on January 14, 2002. The social worker recommended the children be returned to their parents custody. The court accepted this recommendation and ordered the children returned to their parents.

On March 21, 2002, a supplemental petition was filed pursuant to section 387 alleging that appellant bit Matthew, causing physical harm, and that the children were at substantial risk because their father negligently failed to protect Matthew. An amended supplemental petition was filed on May 2, 2002, adding allegations that the mother failed to supervise Matthew, failed to seek mental health counseling services for him, and the father also failed to adequately supervise Matthew. At the jurisdictional hearing on May 7, 2002, the juvenile court found the first allegation from the March 2002 petition to be true and found true the allegations the parents failed to adequately supervise Matthew and that appellant failed to obtain counseling services for him. A similar petition was filed on behalf of Monica.

At a contested disposition hearing in June 17, 2002, the juvenile court terminated reunification services to the parents. The court found its previous orders had not been effective in the protection of the children who were placed again into foster care. On September 20, 2002, appellant filed a petition for modification of the courts order pursuant to section 388. Appellant alleged that she had successfully completed substance abuse and parenting counseling, participated in guided visitation services, and meet regularly with her children.

A joint hearing on the section 388 petition and to terminate parental rights was held on January 30, 2003. Although guided visits between the children and their parents were going well, the social worker believed the children had mixed feelings about their relationship with their parents. The social worker recommended long-term foster care for the children. The court denied the section 388 petition and ordered long-term foster care for the children as the permanent plan. The parents were permitted weekly, unsupervised visits of four hours.

During a permanent plan review hearing held on October 9, 2003, guided visits between the children and appellant stopped after May 2003 because appellant broke her leg. The court ordered guided visitation with the parents overnight, every other week. A social workers report for a review hearing, held on January 29, 2004, noted the children and parents enjoyed the visits but the parents did not seem to know what to do with the children during the visits. The parents had difficulty setting up clear, consistent rules for the children to follow and were inconsistent in following through with consequences.

A hearing on a permanent plan review was held on October 4, 2004. The social workers report prepared for the hearing noted the parents poor health was affecting their parenting ability. They cancelled visits due to health and transportation problems. The quality of their parenting was inconsistent from visitation to visitation. There was a strong bond between the parents and their children. The social worker concluded the parents were unable, and at times unwilling, to care for the children and recommended that the childrens placement out of their home was appropriate and necessary.

A counseling agency was closing the parents case because there was no forward movement by the parents. The children, by now, were exhibiting challenging behaviors that the parents could not handle. The children would not follow their parents instructions if they disagreed with them. A Court Appointed Special Advocate (CASA) worker filed a report indicating the parents were having difficulty maintaining the visitation schedule and were requesting a decrease in frequency. The CASA worker recommended that because of the childrens behavioral issues and their very active behavior, it was in their best interest to remain in long-term foster care.^[2]

By April 2005, the care provider was expressing concern about Matthew acting out after visits with appellant. He was also exhibiting behavioral problems at home and at school. Matthew was struggling academically and socially and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).

At the conclusion of a permanent plan review hearing on October 3, 2005, the children were returned to their parents custody under a plan of family maintenance. Visitation had been regular and the children, now ages 8 and 6, stated they wanted to live with their parents. The court found the parents had made substantial progress toward mitigating the causes for the children being made dependents of the court. Matthews behaviors in foster care, including biting his sister and urinating in inappropriate places, had continued to deteriorate.

Supplemental Petition

On February 22, 2006, a supplemental petition was filed pursuant to section 387 to remove the children from their parents custody due to the filthy condition of the home. Once in January and twice in February 2006, social workers found debris, soiled diapers, and feminine napkins scattered around the home. Food was rotting in the kitchen. The children were unclean. The father was in the hospital suffering from blood clots. The social worker reported that this was the third time the children had been removed from their home due to their parents neglect and failure to provide adequate care. The court sustained the allegations after a contested jurisdictional hearing on April 27, 2006.

Disposition Hearing

A social workers report prepared prior to the disposition hearing indicated the children had been placed with a paternal aunt. The social worker had investigated resources available to assist the parents, but they did not qualify for those services. Appellant was provided with a list of home support services she could seek on her own. Appellant admitted she could not keep the home clean. She told the social worker she could get help from a neighbor and from her church. Due to the childrens long history as dependents, the social worker recommended that reunification services to the parents be terminated and that the matter be set for the termination of parental rights within 120 days.

A CASA worker reported that the children were doing well in the home of their aunt. The children enjoyed the structure and routine set up by their aunt. The CASA worker found the children sitting at the table doing their homework. Matthew was a very good reader but working only at a third grade level in other subjects. Monica was doing well in school.

On May 31, 2006, the court held a disposition hearing. The court terminated reunification services to the parents and ordered a permanent plan of adoption.^[3]

Termination of Parental Rights

The social worker reported that Matthew had 15 different placements during dependency proceedings dating back to the year 2000. Monica had 16 different placements. By October 2006, both children had been diagnosed with ADHD and were taking medication under the care of a physician. Matthew was enrolled in the fourth grade and was working below grade level. Monica was in the second grade. She had been retained in first grade, but caught up to grade level.

The third time the children were taken into protective custody, they indicated they did not want to return to their parents home. Appellant visited the children six times in 2006, three times in March, once in April, once in May, and once in August. During the early visits, Monica was affectionate with her mother. Matthew was more distant. During the later visits, Matthew did his homework or played with Monica. Matthew did not want to attend the August 2006 visit with appellant.

Both children referred to their current caretakers as their primary parental figures, viewing appellant as a friendly visitor. The social worker concluded it would not be detrimental to either child to terminate appellants parental rights.^[4] Both children told the social worker that they did not want to go home but wanted to remain in the care of their aunt. The aunt planned to adopt the children because she loves them both. She had maintained her own business for many years and was attending medical school. The social worker recommended termination of parental rights.

A CASA report filed prior to the hearing stated that Matthews aunt noted that Matthew was biting again. The aunt was looking for a counselor to address this problem. The aunt reported that while the family was camping during the summer, Matthew made a friend. This was the first time the aunt had seen this happen. According to the aunt, Matthew hated seeing his parents. The CASA representative noted that the aunt was very active with both children. During a meeting with their parents on August 7, 2006, Monica interacted with her parents more than did Matthew.

In making its ruling, the juvenile court explained that it considered whether there is a parental connection and emotional bond with the children. The court acknowledged the children maintained an emotional bond with their parents and sought to keep some contact with their parents. The court noted that the children also needed permanency, especially given the fact that they were ages 9 and 7 at the time of the hearing. The court noted there were 16 placements over 6 years, which the court found disturbing considering what the children had experienced.

The court found the parents failed to qualify for the statutory exception to adoption. The court found the childrens out-of-home placement was appropriate and necessary. The court found the children were likely to be adopted by clear and convincing evidence and it terminated the parental rights of both parents.

DISCUSSION

Appellant contends the court erred in failing to apply the section 366.26, subdivision (c)(1)(A) exception and preserve her parental rights.

When reunification efforts cease, the scale tips away from a parents interest in maintaining family ties and towards the childs interest in permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing is designed to protect a childs compelling right to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) At that point, adoption becomes the preferred permanent plan.

Provided a dependent child is likely to be adopted, the statutory presumption at the permanency planning stage is that termination is in the childs best interests and therefore not detrimental. ( 366.26, subd. (b); see also In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344 (Lorenzo C.).) In other words, the decision to terminate parental rights at a section 366.26 hearing is virtually automatic if the child is going to be adopted. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).)

Although section 366.26, subdivision (c)(1) acknowledges that termination is detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (Ibid.) It is up to a parent or other party to prove that termination would be detrimental. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1343.) The statutory exceptions merely permit the court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Consequently, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

Appellant relies on the statutory exception, which the court may find if a parent has maintained regular visitation and contact with his or her child and the child would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)). However, appellant ignores her burden of proving the children would so benefit from continuing their relationship that it would be detrimental to terminate it.

The existence of interaction between natural parent and child will always confer some incidental benefit to the child. Nevertheless, the exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.)

Appellant failed to meet her burden to show that the beneficial relationship exception should apply to her childrens case. Matthew expressed a preference to not even see appellant. Monica appeared to have a better relationship with appellant, but, at best, both children viewed their parents as friendly visitors. We disagree with appellants assertion that the children benefited from their relationship with appellant and benefited from continued visitation with her.

The fact that appellant actually acquired custody of her children in 2005 under a plan of family maintenance and still had a supplemental petition filed for dependency due to filthy conditions in the home is particularly disturbing. Appellant had been receiving reunification services, parental training, treatment for her mental health condition, and drug rehabilitation classes since the initial petition was filed in 2000, yet she still kept her home in a filthy condition. Appellant also received assistance from her church and a CASA representative but still could not properly care for her children without supervision and periodic intervention from social workers.

Appellants interactions with her children became more superficial by the time of the section 366.26 hearing. Appellant admitted to a social worker that she was not up to the task of keeping her home clean. The children had grown much closer to their aunt, who loves them and wished to adopt them. The juvenile court rightly pointed out that the very duration of these proceedings was disturbing. The childrens need for permanency in their lives, something appellant failed to consistently provided them, was at a critical point. This is especially true given the childrens ages, the length of time they had been dependents of the court, and the large number of placements they had endured. Both children suffer from ADHD and need involved parents. Both children require the stability and structure in their lives that their aunt provided on a daily basis.

Appellant failed to establish the special kind of bond contemplated in the section 366.26, subdivision (c)(1)(A) exception. Having reviewed the entire record, we conclude the trial court did not abuse its discretion by terminating appellants parental rights.

DISPOSITION

The juvenile courts order terminating parental rights is affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^*Before Vartabedian, Acting P.J., Levy, J., and Hill, J.

^[1] Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.

^[2] On one occasion, Matthew tried to run away from his mother and she had to chase him down the street.

^[3] On August 30, 2006, this court denied the petitions by the parents for an extraordinary writ to undo the juvenile courts order to implement a permanent plan of adoption and to reinstate reunification services.

^[4] The social worker further concluded that the fathers relationship with his children had deteriorated significantly since they were placed in protective custody and that they did not have a parent/child relationship with him.