Filed 5/23/17 In re M.C. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re M.C., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

HANNAH C.,

Defendant and Appellant.
D071467


(Super. Ct. No. NJ14974)

APPEAL from an order of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed.
Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant Hannah C.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
Mica Llerandi, under appointment by the Court of Appeal, for Minor.

M.C. entered the juvenile dependency system when she was 19 months old after her mother, Hannah C. (Mother), was seen on hospital surveillance footage force-feeding and gagging M.C. After receiving more than two years of services, Mother failed to reunify with M.C. The juvenile court terminated Mother's parental rights and selected adoption as M.C.'s permanent plan under Welfare and Institutions Code section 366.26. Mother contends the court erred in finding there was not a beneficial parent-child relationship between her and M.C. that precluded termination of her parental rights. (See § 366.26, subd. (c)(1)(B)(i).) We find no error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
Family Background
Mother had a difficult childhood, marked by physical and sexual abuse. She was diagnosed with ADHD and was prescribed Adderall. After graduating from boarding school at age 16, she joined the Job Corps and earned certificates in the medical field. She worked off and on as a nanny in Virginia, living on the streets between jobs. To support herself financially, Mother worked as a prostitute, which is when she became pregnant with M.C. Because Mother was sexually active with several unknown men, she does not know the identity of M.C.'s father.
Mother gave birth to M.C. in February 2013. They briefly lived with Mother's adoptive mother in Seattle, then moved to San Diego to stay with Mother's biological father (a registered sex offender who had completed a 17-year prison sentence for murder and attempted rape). When he became violent, Mother and M.C. moved out and were homeless, spending time in shelters and motels.
Petition and Detention (September 2014)
On September 8, 2014, Mother took 19-month-old M.C. to the emergency room at Rady Children's Hospital (Rady) and reported M.C. was experiencing fever, diarrhea, and seizures. M.C. was kept at Rady for observation for 11 days. During this stay, Mother reported observing vomiting and seizure symptoms, but hospital staff—including a babysitter who observed M.C. for 24 hours—never observed the reported conditions. M.C.'s test results also came back normal. When Mother would report to nurses that M.C. had vomited, the nurses observed different liquids on various blankets and towels, but they never witnessed M.C. actually vomit.
Rady staff became suspicious that Mother may have been causing M.C. to vomit, so they recorded her interactions with M.C. on video. About 10 days into M.C.'s hospital stay, Mother "was observed via video on multiple occasions forcibly shoving food into [M.C.]'s mouth and then placing two or three fingers deep into [M.C.]'s mouth causing her to gag" and vomit. Mother was arrested and charged with felony child abuse.
The San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of M.C. alleging Mother had caused her serious physical harm and was incarcerated and unable to arrange for M.C.'s care. (§ 300, subds. (a), (g).) The Agency's detention report described three prior incidents in which Mother sought medical care for M.C. for symptoms medical staff were unable to substantiate.
As of the September 24 detention hearing, Mother was incarcerated at the Las Colinas Detention and Reentry Facility (Las Colinas) and M.C. was in a confidential foster placement. The court found the Agency had made a prima facie showing under section 300, subdivisions (a) and (g); ordered M.C. detained out of Mother's care; and ordered reunification services be provided to Mother.
The court did not provide for visitation due to a protective order in Mother's criminal case that prohibited her from having contact with M.C. However, the court indicated it would consider authorizing visitation if the criminal protective order were modified to allow it, but all visits would have to be supervised and Mother would be prohibited from giving M.C. any food or liquid.
The court set a jurisdiction/disposition hearing for October 14, which it later continued to February 3, 2015.
Jurisdiction/Disposition (October 2014 – February 2015)
The Agency's October 14 jurisdiction report recommended Mother submit to a psychological evaluation. The Rady medical team indicated Mother exhibited signs of Munchausen syndrome by proxy, which presented a greater risk of danger to M.C.
Mother remained at Las Colinas and was in protective custody, which prevented her from taking any classes. She told a social worker she was " 'trying to get a deal and get sentenced and get it over with.' " On January 6, 2015, the criminal court modified the protective order to allow Mother supervised visitation as ordered in the dependency case. However, Mother was placed on a "disciplinary lockdown" on January 21 and was ineligible for visits until February 21.
M.C. remained in foster care, where she was thriving. She had no instances of seizures, diarrhea, or vomiting, and she had a healthy appetite.
At the February 3 hearing, the court sustained the petition, declared M.C. a dependent, removed physical custody from Mother, ordered that M.C. remain placed in foster care, and ordered that Mother continue to receive reunification services. The court set a six-month review hearing for August 4.
Six-Month Status Review (February – August 2015)
The Agency's report for the six-month status review recommended that M.C. remain in her foster placement, and that Mother continue to receive reunification services and have supervised visits.
In February, Mother was convicted of felony child abuse and was granted formal "High Risk Probation for people . . . with mental health concerns." Mother advised a social worker "that she has a prescription drug problem with Adderall" and would like to be referred to a residential substance abuse treatment program. Following her release from Las Colinas on March 20, Mother was admitted to the North County Serenity House (Serenity House) residential treatment program. She reportedly did well in the program and was close to finishing all of its requirements. An Agency social worker acknowledged Mother was "making great efforts in her services" and "appear[ed] to have gained some insight and has also started to be more forthcoming about the falsification of [M.C.]'s physical symptoms." Specifically, Mother admitted to a social worker that she "fabricated all of [M.C.]'s symptoms" for "her own psychological needs, specifically, [to] gain attention and sympathy."
The Agency reported M.C. "adjusted well" to her foster placement. She had "grown quite attached" to the foster mother, called her " 'mom,' " and "look[ed] to her for comfort, security and attention." M.C. had not had any episodes of seizures, vomiting, or diarrhea in her foster placement. M.C.'s court appointed special advocate (CASA) reported similar observations. The foster family was willing to adopt M.C.
Mother underwent a psychological evaluation in March. The clinical psychologist who performed the evaluation diagnosed Mother with, among other things, "Factitious disorder NOS (Munchausen by proxy)," "Neglect of Child," and "Physical Abuse of a Child." He further assessed her as having "very poor" emotional/psychological functioning, and opined her "personality disorders . . . will require a great deal of intervention and may interfere with legal timelines in terms of reunification."
Mother's first supervised visit with M.C. occurred on April 1, over six months into the dependency case. M.C. initially "sort of stared at [Mother] and would not go up to her," but M.C. "slowly warmed up to her" when Mother gave her some new clothes. Mother engaged with M.C., but the child "often looked at the [foster mother] during the visit." M.C. allowed Mother to hug her, but M.C. did not hug back.
Mother continued to visit M.C. weekly. On "several occasions," M.C. "would walk to the front gate of Serenity House and look for the [foster mother]." At one visit, M.C. did not want to get out of the car to enter Serenity House. M.C. became "more responsive" to Mother over time, and a social worker observed that Mother "is good with [M.C.] as far as staying close to her[ ] [and] supervising her to ensure her safety and communicating with her."
At the continued September 22 six-month review hearing, the juvenile court found that although Mother had made substantive progress on her case plan, it would be detrimental to return M.C. to her custody. The court ordered that M.C. remain placed in foster care, and that Mother continue to receive reunification services and have supervised visits. The court eventually set a 12-month status review hearing for February 2, 2016.
12-Month Status Review (October 2015 – February 2016)
The Agency's report for the 12-month status review recommended that M.C. remain in her foster placement, and that Mother continue to receive reunification services and have supervised visits.
The Agency reported M.C. remained attached to the foster mother and continued to call her "mom" and look to her for safety, comfort, and encouragement. The CASA stated M.C. "has a wonderful relationship with the foster mother. [M.C.] looks up to her, trusts her and calls her 'mommy.' The foster mother maintains a loving and kind relationship with [M.C.]."
The Agency reported Mother was visiting M.C. consistently, and they had "a positive relationship; [Mother] praises [M.C.] often and they are affectionate to one another." However, "[o]n occasion, [M.C.] mention[ed] leaving the visit to go with her other mommy . . . ." Mother handled those instances "with grace."
Mother had reportedly been doing well at Serenity House, but was discharged from the program in November for "committ[ing] an act of violence toward another client." Mother transitioned into a sober living facility. The Agency recognized Mother was "working diligently in her services," but expressed concern that she "has only started to scratch the surface of the" trauma from her own childhood that caused her "constant need for attention." Mother's "attention needs" were being fulfilled by those involved in the dependency case, which led the Agency to wonder: "As she transitions into the 'real' world, how and where will she get that attention that she so craves?"
The Agency reported that Mother had become less responsive to the Agency. She missed a scheduled meeting, and did not respond to voice or text messages for three weeks. She eventually responded, but declined to meet with the social worker because she didn't want to "keep rehashing" what she had done to M.C.
At the February 2 status review hearing, the juvenile court found that although Mother had made substantive progress on her case plan, it would be detrimental to return M.C. to her custody. The court ordered that M.C. remain placed in foster care, and that Mother continue to receive reunification services and have supervised visits. The court set an 18-month status review hearing.
18-Month Status Review (February – April 2016)
The Agency's report for the 18-month status review recommended that the court terminate Mother's reunification services and set a permanency planning hearing under section 366.26.
The Agency recognized Mother had gained some insight into her condition. She was "able to identify that she craved attention and used her daughter to gain that attention, and she asserts now, because of all that has happened, she no longer needs that attention." However, the Agency was concerned that Mother may not have appreciated that she only felt she had made progress because of all the attention she was receiving in connection with the dependency case—"from her service providers, the women in sober living, the foster mother, her therapist, her attorney, and . . . the Agency . . . ." The Agency also expressed concern over the "high rate of re-abuse" for those diagnosed with Munchausen syndrome by proxy. Mother was "extremely obstinate about meeting with [the social worker] in general."
Mother's supervised visits went well, but she "indicated that the good-byes were not going well and [M.C.] would hit her or pull her hair." The Agency noted Mother never progressed to unsupervised visits. The CASA observed that Mother was "consistently appropriate" with M.C. during visits. However, the CASA believed M.C. "deserves permanency," and recommended the court terminate reunification services and set a section 366.26 hearing.
At the May 2 status review hearing, the juvenile court found Mother had made only minimal progress on her case plan, and that it would be detrimental to restore custody of M.C. to Mother. The court terminated Mother's reunification services and set a section 366.26 hearing.
Section 366.26 Hearing (October 2016)
At the section 366.26 hearing, the juvenile court received in evidence the Agency's section 366.26 report and the curriculum vitae of the social worker who prepared it. The social worker attended the hearing, but none of the parties examined her.
The Agency recommended that the court terminate Mother's parental rights and select adoption as M.C.'s permanent plan. The Agency determined M.C. was generally adoptable "based on her numerous appealing characteristics," and specifically adoptable because the foster parents expressed a desire to adopt her. The Agency reported that "[o]n two separate occasions, [Mother] has stated she wanted [M.C.] to remain in the home of the current caregivers, if she is unable to reunify . . . ."
The Agency asserted the beneficial parent-child relationship exception to adoption did not apply. The Agency acknowledged Mother had consistently visited M.C., but asserted that terminating Mother's parental rights would not be detrimental to M.C. because she "depends on her current caregiver to provide for all of her needs and does not seek [Mother] to provide for her." Mother still had not progressed to unsupervised visits.
The Agency's report indicated visits generally went well, although on one occasion M.C. initially "appeared to back away" from Mother's display of affection. The report also conveyed that "[t]he visitation monitor has reported [M.C.] is usually able to separate at the end of the visits without incident."
The social worker described M.C.'s respective relationships with Mother and her foster mother: "Due to the circumstances, [Mother] has a friendly, yet affectionate, relationship with [M.C.] However, [M.C.] depends on her current caregiver to provide for all of her needs and does not seek [Mother] to provide for her. Therefore, it does not appear [M.C.] will suffer detriment, if [Mother]'s parental rights are terminated."
The juvenile court found M.C. generally and specifically adoptable. With respect to the beneficial parent-child exception to adoption, the court characterized this as "a very unique case" due to Mother's diagnosis. The court found Mother had maintained consistent visitation with M.C. and that their "visits have been described generally as being enjoyable and appropriate . . . ." However, the court observed "M.C. did not express any separation anxiety at the conclusion of the visits nor is there any evidence that she expressed any desire to inquire of or about her mother in between her visits." Therefore, the court found "that it would not be in [M.C.]'s best interests to promote or facilitate a mother/child relationship, and further, whatever benefit may have been conferred upon [M.C.] by contact she has had with her mother is greatly outweighed by her need for stability and placement, which can only be achieved through adoptive placement."
Consequently, the juvenile court terminated Mother's parental rights, selected adoption as M.C.'s permanent plan, and designated the foster parents as M.C.'s de facto and presumptive adoptive parents.
Mother appeals.
DISCUSSION
Mother contends the juvenile court erred in finding there was not a beneficial parent-child relationship between her and M.C. that precluded terminating Mother's parental rights and selecting adoption as M.C.'s permanent plan. We disagree.
A. Relevant Legal Principles
" 'At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.' [Citation.] 'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ' " (In re G.B. (2014) 227 Cal.App.4th, 1147, 1165.)
This court has interpreted "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. 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 parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
" 'The balancing of competing considerations 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.' " (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350; see Autumn H., supra, 27 Cal.App.4th at p. 576.)
"A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence. [Citation.] It is not enough to show that the parent and child have a friendly and loving relationship. [Citation.] ' "Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . ." ' [Citation.] For the exception to apply, 'a parental relationship is necessary. . . .' [Citation.] ' "While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.". . .' " (In re J.C. (2014) 226 Cal.App.4th 503, 529.) "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 Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
B. Analysis
The juvenile court found, and the Agency does not dispute, Mother carried her burden of establishing she "maintained regular visitation and contact" with M.C. (§ 366.26, subd. (c)(1)(B)(i)). Therefore, we need only consider whether the juvenile court abused its discretion in determining whether the benefits to M.C. of continuing a parental relationship with Mother outweighed the benefits of a permanent plan of adoption. (See Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has not shown an abuse of discretion in this regard.
M.C. spent the first 19 months of her life in Mother's care. During that period, Mother admits she had M.C. hospitalized four times with false symptoms so that Mother could garner attention from medical staff at M.C.'s expense. By contrast, as of the section 366.26 hearing, M.C. had been detained out of Mother's custody for more than two years (more than half of her life). During that period, the Agency observed that M.C. "gr[ew] quite attached" to the foster mother; called her " 'mom' "; and "look[ed] to her for comfort, security and attention." M.C. was thriving in her foster placement, and exhibited none of the medical symptoms Mother reported. The CASA also observed M.C. "has a wonderful relationship with the foster mother. [M.C.] looks up to her, trusts her and calls her 'mommy.' The foster mother maintains a loving and kind relationship with [M.C.]" The CASA opined M.C. "deserves permanency."
Mother was initially unable to visit M.C. due to a protective order in the criminal case, and then due to her being on "disciplinary lockdown" at Las Colinas. Mother later began consistently visiting M.C., but the visits never progressed to being unsupervised. The Agency and the juvenile court recognized the visits were generally enjoyable and appropriate. But the record also shows there were many visits during which M.C. was reluctant to return Mother's displays of affections, or sought out her foster mother. Mother has not identified any evidence in the record indicating M.C. inquired about Mother between visits. To the contrary, the record shows M.C. did not wish to speak to Mother on the phone between visits.
Mother cites her progress in her reunification services as "relevant . . . to show [her] past and continuing progress toward responsible, safe, and non-detrimental parenting of [M.C.]" We commend her on her progress. However, the record shows she still has a long way to go to address her complex diagnosis—one that (according to the record) has a high rate of reabuse. Moreover, the record supports the Agency's concern that some of Mother's apparent progress in addressing her need for attention may be the result of the artificial dependency environment; her progress was untested in the " 'real' world."
In the end, the court's focus must be squarely on the child. That the parent is doing well and making progress is laudable, but it does not mean that adoption is not in the best interests of the child, particularly where the progress is slow, uneven, or uncertain. On balance, we find no abuse of discretion in the trial court's conclusion that Mother did not meet her burden of establishing the beneficial parent-child relationship exception.
Citing an online publication, Mother argues an adoption is not inherently more permanent than a guardianship. (See Adoption Disruption and Dissolution (June 2012) Child Welfare Information Gateway <https://www.childwelfare.gov/pubPDFs/s_disrup.pdf> [as of May 23, 2017.].) However, according to that publication, only about 10 to 25 percent of adoptions are disrupted, and only 1 to 5 percent are dissolved. (Id. at pp. 2, 6.) Moreover, Mother has cited no evidence indicating it is likely the foster parents' adoption of M.C. would be disrupted or that (in Mother's words) they "might simply walk away, as can any parent." To the contrary, the record shows the foster family has been committed to M.C. throughout her two-year-plus placement, and even Mother told the Agency she wanted M.C. to remain with them if she failed to reunify. In any event, the Legislature has expressed " 'a strong preference for adoption over the alternative permanency plans' " where, as here, the child is adoptable. (In re G.B., supra, 227 Cal.App.4th at p. 1165.) Mother's challenge to the preference for adoption is more properly addressed to the Legislature.
DISPOSITION
The order is affirmed.



HALLER, Acting P. J.

WE CONCUR:




AARON, J.




DATO, J.