In re Morgan K.

Filed 10/30/06 In re Morgan K. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Juvenile Court Referee. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.

____

Marilyn U. (Mother), the mother of 12-year old Morgan K. (born in August 1994), appeals from a March 2, 2006 order terminating her parental rights. We affirm the order because the evidence was sufficient to support the juvenile court’s finding that the beneficial relationship exception to termination of parental rights did not apply (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A)) and the court did not abuse its discretion in denying Mother a contested hearing on the beneficial relationship exception when the offer of proof did not warrant a hearing.^[1]

BACKGROUND^[2]

Morgan was detained in foster care in June 2004, when Mother, who was diagnosed in 1983 with bipolar disorder, was involuntarily hospitalized. At a hearing in August 2004, Morgan was released to Mother on condition that the maternal grandfather reside in Mother’s home and assist her in caring for Morgan and that Mother take all her prescribed medications. Morgan had spent a large part of his life living in the Philippines with the maternal grandfather. In September 2004, the juvenile court sustained an amended petition, finding that Morgan was a dependent child under section 300, subdivision (b) (failure to protect), based on Mother’s involuntary hospitalization for bipolar disorder and emotional problems placing Morgan at risk of harm. The court ordered family maintenance services and that Mother participate in individual counseling with a therapist, continue to receive medical care from a psychiatrist, and take all prescribed medications.

Mother, who had taken herself off anti-psychotic medication in July or August 2004 because she believed the medication was causing her physical problems, exhibited paranoid behavior. In late September 2004, the Department of Children and Family Services (DCFS) filed an application for an order that Mother complete a psychiatric medical evaluation. Notwithstanding Mother’s behavior, Morgan was not afraid of her or that she would hurt him. In October, Mother took herself off of her anti-depressant medication, believing that the medication would “ruin” her stomach. In November 2004, Mother stopped seeing her therapist.

In December 2004, DCFS reported that Mother’s behavior was becoming more bizarre and she was becoming angrier, but she was not hearing voices telling her to hurt herself or others and she was able to maintain a stable residence. Morgan was coping with Mother’s paranoia, but DCFS was concerned about his long-term development. In December 2004, the court appointed an Evidence Code section 730 expert psychiatrist to evaluate Mother and ordered that DCFS work with Mother to find doctors who could medically treat her conditions.

After Mother canceled her January 29, 2005 appointment with the expert psychiatrist, DCFS filed a section 342 subsequent petition and detained Morgan on February 3, 2005, placing him in foster care. Morgan was in foster care with unrelated caretakers until July 1, 2005, when he was placed with a maternal aunt and her fiancé, where he remains. The maternal aunt and her fiancé grew to love Morgan and wish to adopt him. In September 2005, Morgan told DCFS that he wanted visits with Mother, but if he could not live with Mother, he would like to be adopted by his aunt, his “‘secondary mom.’”

In early 2005, Morgan was reported tardy at school on many occasions. According to Morgan, he took care of himself when he lived with Mother because she slept a great deal due to her “medical problems.” Morgan admitted being annoyed with Mother when she talked about the same things over and over again, and he would walk away or go into the bathroom so as not to hear Mother. On one occasion in February 2005, when Morgan and Mother were in the schoolyard playground, Morgan became agitated and threw his backpack in Mother’s direction. DCFS characterized Morgan as in the position of “being the adult.”

Meanwhile, as reported by DCFS, the Long Beach Police Department mental health evaluation team characterized Mother in February 2005 as very paranoid and fixated on DCFS as the source of her problems, but she was not a danger to herself or others and there were insufficient exigent circumstances to put Mother on an “involuntary hold.” DCFS reported that Mother and Morgan had a strong emotional bond and were affectionate during visits, but in February and March 2005, Mother had problems with her monitored visits because she discussed the case’s details during the visits.

Mother saw the appointed expert, Dr. Leonard, on March 29, 2005. He diagnosed Mother with schizoaffective disorder, and his report stated that Mother’s “thought was almost exclusively focused on the delusional system that so impairs her daily affairs.” Dr. Leonard recommended that Mother be referred for both psychotherapy and pharmacotherapy.

In May 2005, the juvenile court sustained an amended section 342 subsequent petition, finding that Morgan was a dependent under section 300, subdivision (b), based on Mother’s violation of the court orders to participate in counseling and to take prescribed psychotropic medication. The court ordered family reunification services, that Mother be reexamined by a psychiatrist, that she undergo psychological testing, and that she take prescribed medications. Mother was afforded monitored visits once a week.

In September 2005, Mother picked up Morgan at school and took him to his babysitter’s home, where she visited with him for three hours. In October, when Mother again attempted to pick up Morgan at school, Mother became “uncontrollable” and had to be escorted off the premises by a sheriff’s deputy. Mother also pushed and hit a school employee as he escorted Mother off the premises. Morgan was transferred to another school, but Mother continued to call the school staff and was “‘still delusional and talking craziness about people.’” Mother’s monitored visits were moved to the DCFS office. When there were problems with scheduling monitored visits in October 2005, Mother became verbally abusive of the social worker and accused her of plotting to murder Mother. In November 2005, the social worker reported that Mother’s mental health continued to deteriorate. Mother’s explosive behaviors jeopardized the well-being of Morgan and the people facilitating the visits.

In November 2005, DCFS filed an ex parte application to suspend visitation pending proof that Mother was under the care of a therapist and was receiving psychiatric treatment. On November 3, 2005, the juvenile court terminated reunification services and scheduled a section 366.26 hearing for March 2, 2006. Although Mother saw a psychotherapist in November 2005, she did not receive psychiatric care from a medical doctor. On November 4, 2005, the court ordered that Mother have no further visits until she was receiving psychiatric care. The DCFS report for the section 366.26 hearing recommended termination of parental rights, noting that Mother still had not shown proof of meeting with a psychiatrist and Mother continued to assert that someone was trying to kill her and Morgan. At the March 2, 2006 hearing, Mother’s attorney stated that Mother was opposed to the termination of parental rights, that Morgan wished to have continued contact and visits, and that there was a strong bond between them. After the court began its ruling, finding that it was likely that Morgan will be adopted, Mother’s attorney stated that Mother wanted to set the matter for a contest. The court asked, “And the issue would be?” Mother’s attorney responded that “it would be the bond that she has with Morgan. She believes that it would be detrimental to him to have the parent-child relationship terminated.” The court stated, “That isn’t a sufficient reason, Counsel. [R]eunification services were terminated. This child has voiced his opinion as well. . . . And there is no legal basis to set a contest at this point. Mother has had her visitation suspended because she refused to comply with the court order of having a psychiatric evaluation and to follow her meds, and it was her own undoing that caused her inability to have any contact. There doesn’t seem to be any exception under [section 366.26, subdivision (c)(1)(A), (B), (C), (D), or (E)], so, for those reasons, your request to have a contest will be denied.”

The court terminated parental rights and referred Morgan for adoption. On appeal, Mother contends that she was entitled to a contested hearing on the beneficial relationship exception to termination of parental rights and that the evidence was insufficient to support the juvenile court’s finding that the exception did not apply.

DISCUSSION

The juvenile court does not violate due process principles by requiring an offer of proof before conducting a contested hearing on one of the statutory exceptions to termination of parental rights. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (Ibid.) Here, the issues before the juvenile court were whether Mother had maintained regular visitation and contact with Morgan and whether he would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).) A beneficial relationship within the meaning of section 366.26, subdivision (c)(1)(A) is 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 adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) We review the juvenile court’s ruling on this issue under the substantial evidence test. (Id. at pp. 575--576.)

Mother contends that the juvenile court “inappropriately abbreviated [her] counsel’s attempt to make an offer of proof to justify the contested hearing,” but the record does not support this claim. Rather, Mother’s attorney raised some points and the court found that those points did not warrant a contested hearing. Essentially, Mother’s offer of proof was that she “believed” that severing the parental bond would be detrimental to Morgan. The juvenile court impliedly determined that had Mother so testified, such testimony would not be sufficient to establish the beneficial relationship exception. Mother does not show that such a determination was error. She thus fails to establish that the juvenile court erred or abused its discretion in denying her a contested hearing.

We also conclude that Mother fails to establish that the juvenile court’s finding on the beneficial relationship exception was not supported by substantial evidence. Substantial evidence supports the finding that Mother had not maintained regular visitation and contact with Morgan because her failure to obtain psychiatric care prevented her from visiting him from November 4, 2005, to March 2, 2006. The court’s finding that Mother had not met the first prong for application of the exception is supported by substantial evidence.

And substantial evidence supports the implied finding that Mother had not established that Morgan’s well-being would be promoted more in a tenuous placement with the continuation of the (admittedly loving) parent-child relationship than in a permanent home with adoptive parents. At the time of the 366.26 hearing, Mother’s relationship with Morgan had actually regressed to a point where she was not entitled to visitation because she had not complied with the court orders to obtain psychiatric care and treatment, notwithstanding repeated urging to do so by the court and DCFS. The juvenile court reasonably could have found that, notwithstanding the strong and loving bond between Mother and Morgan, Mother’s situation lacked stability and that Morgan’s best interest would be promoted more by adoption into a stable home than by maintenance of a tenuous foster care placement.

The circumstances here are distinguishable from two cases Mother claims to be analogous. In In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), the Court of Appeal reversed an order terminating parental rights because there was insufficient evidence to support the determination that the mother did not show a beneficial relationship. At the time of the section 366.26 hearing, “Jerome was nearly nine years old. He had lived with [his mother] for the first six and one-half years of his life and expressed his wish to live with her again. For at least two months, he had been having unsupervised overnight visits in her home. He called her ‘mom’ or ‘mommy.’ There was apparently no woman in his life other than [his mother] with whom he had a beneficial relationship.” (Jerome D., supra, 84 Cal.App.4th at p. 1207.) Here, unlike Jerome D., there was no regular visitation, as Morgan had not been visiting with Mother for four months before the section 366.26 hearing. And, unlike Jerome D., Morgan had developed a loving and beneficial parental relationship with the maternal aunt.

In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.) is also distinguishable, factually and procedurally. The Court of Appeal in Brandon C. upheld an order of legal guardianship with the paternal grandmother on an appeal by DCFS, which had recommended termination of parental rights and adoption of twin boys, almost four years old at the time of the 366.26 hearing. The Court of Appeal concluded that substantial evidence supported the juvenile court’s finding of the beneficial relationship exception, noting that the mother established that she had faithfully visited her two sons every week for three years, except when she was out of state, that there was a close bond between the children and their mother, and that the children, who referred to their mother as “‘Mommy,’” benefited from continuing the relationship. (Brandon C., supra, 71 Cal.App.4th at pp. 1536--1537.) The court also noted that DCFS did not present any contrary evidence. (Id. at p. 1537.) That the foregoing circumstances in Brandon C. were sufficient to uphold the juvenile court’s finding of the beneficial relationship exception does not establish that the facts here are insufficient to uphold the juvenile court’s rejection of the exception.

Mother faults the juvenile court for failing “to fully consider the full scope of negative consequences to Morgan, beyond cataclysmic emotional trauma, of terminating his parent-child relationship with mother.” But Morgan’s relationship with Mother was not free of emotional stresses. And the juvenile court reasonably could have found that the emotional benefits of a stable and loving home with adoptive parents more than outweighed any emotional trauma that Morgan may experience with the termination of Mother’s parental rights.^[3] We conclude that Mother fails to establish the juvenile court’s findings are not supported by substantial evidence.DISPOSITION

The order of March 2, 2006, is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P.J.

I concur:

JACKSON, J.^*

I concur in the judgment only.

VOGEL, J.

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^[1] Unspecified statutory references are to the Welfare and Institutions Code.

^[2] Morgan’s parents are divorced. His father, Gregory K. (Father), lives in New Hampshire and had not seen Morgan in several years. Father, who first appeared in the juvenile court through his attorney in February 2005, is not a party to this appeal.

^[3] Mother also contends that the juvenile court “failed to reflect” that Mother owned several properties in the Philippines, which Morgan stood to inherit as Mother’s sole heir. But Mother does not establish that the juvenile court was unaware of these details, which are contained in a June 2005 assessment report on the maternal grandfather’s home in the Philippines. And Mother’s ownership of property in the Philippines has no bearing on the existence of the beneficial relationship exception, which is determined by considering factors such as 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 the parent and the child, and the child’s needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.)

^* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.