In re T.W.

Filed 3/17/06 In re T.W. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steven L. Berman, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

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Roberta W. appeals from a trial court order terminating her parental rights to her son T. She contends that the court erred when it found that the Welfare and Institutions Code[1] section 366.26, subdivision (c)(1)(A) "visits exception" to adoption did not apply, and by failing to consider T.'s wishes. We find no error, and affirm.

Facts

The section 300 petition in this case was filed in September of 2002, when T. was five years old. It alleged that appellant had mental and emotional problems which endangered his safety, noting, among other things, that T. had an eye condition which required special care. (Later, DCFS explained that T. needed to wear a patch on his left eye for six hours a day to avoid the need for surgery.)

The accompanying report explained that police had been called to the home twice in August, once because T. was screaming and once because he was running after appellant in the street. A social worker visited and found appellant incoherent, angry, and hearing voices. T. was placed with his aunt, Marie W. In his very first conversation with the social worker, T. said that he wanted to live with his aunt.

A psychologist appointed at the detention hearing reported that appellant's condition was "acutely psychotic in nature," and that she most likely suffered from Schizophrenia, Paranoid Type.

The petition was sustained in January 2003, as to allegations that appellant's emotional problems limited her ability to care for T. and endangered him, and that on one occasion, she left him without adequate supervision. She was ordered to attend a parent education program and individual counseling and to participate in a psychiatric evaluation and comply with medication. She was allowed monitored visits.

Parental rights were not terminated until June 2005. During the almost three years of this dependency, appellant made progress with her case plan -- indeed, T. was returned to her for a time. However, her behavior was inconsistent, and depended on her psychiatric treatment. As the court noted in the contested 366.22 hearing, "this case does appear to boil down to whether or not mother has complied with her medication and is a danger to the child."

At first, between T.'s detention and June of 2003, nothing improved. In October, appellant screamed at the social worker during a meeting. During an informal meeting in December, she talked to herself. She said that she was seeing a psychologist but refused to give the social worker the telephone number. The social worker did get the number from T.'s aunt, and learned that appellant had seen the psychologist as part of a workers' compensation claim.

September and October 2002 visits with T. included hugs and kisses, but appellant was often late, and often wandered away from T. In February 2003, scheduling became her responsibility, not her sister's, and her visits became inconsistent. In March, during a visit at a McDonald's, she grabbed T. and screamed that the monitor was taking him away. Police were called.

Appellant was hospitalized on a psychiatric hold in May 2003, after she stole her mother's car and refused to stop driving when her mother tried to get in. The hospitalization was extended because appellant refused to take her medication.

Things improved when appellant began seeing a psychiatrist, Dr. Curtis, although she resisted DCFS's efforts to contact him, saying that the treatment was not for issues related to the dependency and that he would not communicate with the social worker. In June, appellant provided DCFS with a note from Dr. Curtis, confirming that appellant was in treatment and was taking psychotropic medication "as is common in workers compensation." In July, appellant completed her parenting classes. In August, on learning from appellant that she only saw Dr. Curtis when she needed a prescription refill, DCFS asked appellant to go into counseling. She did so.

During this period, appellant visited T. regularly, twice a week for an hour and a half, or once a week for three hours. T. was excited about the visits, although Marie W. opined that he was actually excited about the toys appellant brought.

In its reports, DCFS noted the importance of appellant's compliance with medication, and the difficulties presented by the lack of communication with Dr. Curtis. Finally, in November, appellant gave her psychologist permission to contact Dr. Curtis.

In January 2004, through the psychologist, DCFS was able to verify that appellant was attending her appointments with Dr. Curtis and was taking her medication. Based on these good reports, the court ordered unmonitored visits, then weekend visits.

On April 7, after a contested section 366.22 hearing, the court ordered T. returned to appellant. The court heard evidence that T. did not want to visit his mother, and that she was drinking, which may have been counter-indicated with her medication, but found that although the case was a difficult one, DCFS had not met its burden of showing that return to appellant would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of [T.]." (§ 366.22, subd. (a).)

The court ordered conjoint counseling for appellant and T., to begin within ten days, and individual counseling for T., and ordered appellant to comply with her psychiatrist's orders on medication, refrain from alcohol use, and have random tests for alcohol at least once a week.

By May 6, when the court again examined the case, appellant had not arranged conjoint counseling or counseling for T., although she had been referred to the same agency where she herself was in counseling. The social worker did not think that she was drinking, but she was not in a program of random alcohol testing. She insisted that she could not take time from her job to randomly test, but could test through Kaiser, choosing one "random" day a week. Marie W., who had weekend visits with T. and often sat for him, reported that he appeared subdued. Appellant had not taken T. to his scheduled eye exam, again for reasons concerning her work schedule, and had not rescheduled.

The court announced an intent to re-detain T., but ultimately granted a two-week continuance on appellant's representation that she would randomly test and would take T. to his doctor's appointment, even if it meant that she had to quit her job.

The court heard the case again toward the end of May. For the hearing, DCFS reported that appellant had made therapist and ophthalmologist appointments for T., but was not in a program of random testing. At the hearing, the court questioned appellant's mother. Although she had at earlier times voiced concerns about appellant's behavior, she expressed her belief that appellant did not have a problem with alcohol.

The case was continued until July 20. DCFS's report for that hearing included many troubling facts: appellant was often late to her therapy appointments. Once, when the therapist informed her that she was too late, and that there would be no session, she began screaming. In June, appellant stopped taking her medications -- she said so to both DCFS and her therapist.

T.'s eye doctor reported that his eyesight was deteriorating because he had not been wearing his eye patch. Appellant said that she had not used a patch at first because she did not have one, but had begun to do so. However, she identified the wrong eye. T.'s grandmother and appellant's boyfriend reported that she sometimes put the patch on the wrong eye, sometimes forgot to put it on, and sometimes took it off when T. complained. Appellant enrolled T. in a new school, but would not give the social worker the name of the school.

Appellant's mother told DCFS that appellant's behavior had been erratic and paranoid. Appellant's boyfriend reported that when he asked appellant whether she was taking her medication, she screamed at him, at one point accusing him of putting poison in her coffee, to the point that police were called. T. saw all of that.

T.'s teacher reported that he was often late for school, and was absent once a week.

At the July 20 hearing, T.'s lawyer represented that T. had said that appellant hit him with a fist over the head, that at times there was no food in the house and he went hungry, and that appellant screamed at him, which scared him.

On the court's recommendation, DCFS filed a section 387 petition. It alleged that T. was endangered because appellant suffered from serious mental or emotional problems and did not take the prescription medication designed to address those problems, and because she failed to provide T. with the care he needed for his eye problem. The court detained T., who went back to his aunt.

In September, the court sustained the petition and set a section 366.26 hearing. By then, DCFS had reported that appellant was insisting that she did not need any medication, although her psychiatrist was reporting that she did. Appellant was confrontational with the social worker. T. told DCFS that his mother had hit him once, and that he wanted to live with his aunt.

After that, appellant's behavior was increasingly aggressive and erratic. Her mother, who had been monitoring visits, refused to monitor, because appellant had become upset and lunged at her. Marie W. agreed to monitor, but only at DCFS offices. At the first such visit, in September, T. hid behind his aunt while appellant screamed at her. At the next visit, on October 28, appellant screamed at T. for disturbing the arrangement of toys she had constructed for him. T. rushed away from these visits.

Appellant was involuntarily hospitalized from November 6 to November 28. When she was released, her visits, originally set at three hours a week, were reduced to one hour a week. Her behavior improved after her hospitalization.

The section 366.26 hearing, initially set for January, was not concluded until June, in part due to difficulties in giving notice to T.'s father. DCFS reported in March and April: T. consistently told DCFS that he wanted to live with his aunt. When he was not around his mother, he was spontaneous and outgoing. When he was, he was cautious and reserved. Appellant did not visit in February or the first three weeks of March.

T. had his eye surgery in April. Appellant and Marie W. had talked to DCFS about their plan to maintain visits after parental rights were terminated.

On this record, the court found that the 366.26, subdivision (c)(1)(A) "visits exception" to adoption did not apply, finding that, inter alia, there was no evidence that Tamari benefited from his visits with appellant. To the contrary, although he loved his mother, he was upset by her and frightened of her.

Discussion

Section 366.26,subdivison (c)(1)(A)

At a section 366.26 hearing, on a finding that the child is adoptable,

"the court shall terminate parental rights and order the child placed for adoption," unless "the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances," (§ 366.26, subd. (c)(1)) to wit, that "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A).)

The subsection does not apply unless the parent shows that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

Appellant's argument is that she did show such a connection. She argues that she maintained regular contact with T. throughout the dependency, and points out that she cared for him for the first five years of his life. She cites the evidence that a significant emotional attachment was created in that time, including the evidence that T. initially told the social worker that he loved his mother, and evidence of the positive interactions in the visits early in the dependency.

As to the harm T. would suffer from termination of rights, appellant cites T.'s therapist's December 2004 comment that T. "expresses interest and positive feelings about his visits with his mother but also states that he likes living with his aunt," and the social worker's January 2005 comment that "[t]he child and the mother have a relationship. The child knows who is mother is and his connection to his mother is very important." Appellant acknowledges that there was evidence that during some periods T. had behavioral problems after visits, and did not want to visit, but argues that some of that evidence came from Marie W., who wanted to adopt T., and cites the court's comment at the April 7 hearing, regarding Marie W.'s testimony that appellant should not have been drinking: "the court is not quite sure that the aunt doesn't have an ax to grind in this matter as well." Appellant also questions whether Marie W. would allow visits after adoption, citing DCFS's March 2005 report that T.'s grandmother wanted the court to mandate her visits, so that Marie would not be able to deny her visits.

We do not see that appellant has established grounds for reversal, under either the sufficiency of the evidence (In re Autumn H. (1994) 27 Cal.App.4th 567, 575) or abuse of discretion (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351) standards she suggests. There was evidence that appellant visited regularly during most of the dependency, but she did not do so in the period just prior to termination of rights.

There was evidence of positive interactions during visits, and that for a time, T. was excited about visits. There was also evidence that during other visits, appellant ignored T. or, worse, screamed at him, and that for long periods, T. did not want to visit. There was evidence that T. loved his mother, but also evidence that he was frightened and watchful when he was around her, hardly a state which is beneficial to a child. This was certainly true after he was returned home, then detained again.

The sad fact of this case is that despite the connection between appellant and T., appellant was unstable and did not consistently take the medication which allowed her to function in a manner which meant that her connection with T. was a benefit to him.

T.'s wishes

In subdivision (h), section 366.26 provides that "At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." Under the subdivision, courts have a mandatory duty to consider the child's wishes, to the extent that they are ascertainable, before entering an order terminating parental rights. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591; In re Juan H. (1992) 11 Cal.App.4th 169, 173.)

One case, In re Diana G. (1992) 10 Cal.App.4th 1468, held that the court must take direct evidence of the child's wishes regarding termination and adoption, and that the evidence must reflect the fact that the child is aware that the proceeding involves the termination of parental rights. (Id. at p. 1480.) Leo M. disagreed, finding that while the child's feelings "must be explored," the trial judge has the discretion to decide whether to require a direct statement from the child. (In re Leo M., supra, 19 Cal.App.4th at p. 1592.) We think Leo M. sets out the better rule, but in any event, appellant does not insist on the Diana G. standard. Instead, she argues that there is no evidence that the trial judge here considered T.'s wishes at all. Appellant again cites the positive comments, from T.'s therapist and from the social worker, regarding T.'s relationship with appellant, and also cites the fact that the DCFS reports do not include a statement from T. on termination of rights.

We see ample evidence. From the beginning of the dependency, T. voiced his wish to live with his aunt, and throughout the dependency, he sought the care and stability he found with her. He did not seek visits with his mother, but instead feared her. The record indicates that these desires of T.'s were very much on the trial court's mind when it terminated parental rights.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] All further statutory references are to that code.