In re Omar J.

Filed 10/17/07 In re Omar J. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Martinez, Commissioner. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, County Counsel, Frank J. Da Vanzo, Principal Deputy County Counsel for Plaintiff and Respondent.

FACTUAL AND PROCEDURAL BACKGROUND

I

Proceedings Prior to Termination of Reunification Services

Appellant is the mother of Omar J. born in July 2002. Appellant was herself a dependent minor when she gave birth to Omar at the age of 16.

The Department of Children and Family Services (DCFS) intervened in March 2003, when Omar was 8 months old, after appellant threatened suicide. At the time, appellant and Omar were living together in a group home. Omar was placed with his father, who was living with his mother, Omars paternal grandmother. Appellant did not contest the petition, which, as amended, stated she lack[ed] stability and left the child without appropriate supervision when she was under medical observation for the suicide threat.

Initially, the juvenile court permitted appellant and the father to share custody of Omar. Appellant was ordered to undertake individual counseling to address case issues and verify a stable lifestyle. Within a few months, appellants conduct caused DCFS to file an amended petition, stating that appellant had failed to provide Omar with ongoing responsible care and supervision.^[1] Omar was detained and placed with his paternal grandmother.^[2]

Throughout the remainder of the reunification period, which lasted until May 2005, appellant sometimes adhered to the case plan, creating hope that reunification would succeed. But she was never able to entirely curb the behavior that led to Omars detention and, in addition, undermined her progress by continual use of marijuana.^[3]

Appellant finally found a stable home in November 2004, when she was placed with a new foster mother, a family friend who agreed that Omar could reside with them. But when the caseworker took Omar for a visit with appellant in the new placement in December, she smelled marijuana. Further bad behavior followed. In January 2005, during a 9:30 a.m. supervised visit, appellant abducted Omar and did not return him until found and confronted by police that evening. In February, appellant was briefly arrested for an altercation that took place on the street in Los Angeles.

By the time of the 18-month review hearing, although appellant had received a certificate for participation in anger management and was undergoing an approved counseling program, DCFS recommended termination of reunification services. At a contested hearing on May 26, 2005, the court ordered reunification services terminated and set a hearing under Welfare and Institutions Code section 366.26.^[4]

II

Proceedings After Termination of Reunification Services

A.Appellants Section 388 Petition

Although the court terminated reunification services in May 2005, the section 366.26 proceedings were not concluded until September 2006. There were several reasons for the long interval. Some delay resulted from a section 388 petition, filed by appellant in November 2005, seeking modification of the courts orders and return of Omar. The petition was supported by appellants therapist, Michelle Bush, who stated that appellant had made significant progress since the original DCFS petition was filed, having completed anger management and parenting classes, participated in therapy for ten months, graduated from high school, and remained in the same placement since the end of 2004 without incident. The court instructed DCFS to submit a report addressing whether Omar could safely be returned to appellant. The caseworker reported that appellant had dropped out of her counseling program for one month and tested positive for marijuana on multiple occasions. In addition, during an unannounced visit in February, the caseworker discovered that appellant and her foster mother had allowed Omar and appellant to go out with a group of children, supervised only by an older child. The caseworker and appellants therapist explored placing appellant into a program for women with children and a history of drug use and psychological issues. In January 2006, appellant was accepted into the program. Nonetheless, DCFS continued to contest appellants petition, primarily due to her continued use of marijuana. By order dated March 7, 2006, the court denied the petition, stating there was insufficient evidence of changed circumstances or progress.

B. Omars Relationship with His Grandmother

Another issue that arose during the interval between termination of reunification services and the section 366.26 hearing involved Omars placement. There were reports that the grandmother used corporal punishment on Omar and that she improperly restrained him. The grandmother herself reported that Omar was rebellious, and had begun cursing and giving her attitude. She also reported that Omar had commenced inappropriate masturbatory behavior, smeared feces on the walls after going to the bathroom, and threatened to cut his cousin with a knife.^[5]The court ordered a psychological assessment and therapy for Omar.^[6]

The April, June, and August 2006 reports stated that Omars defiant behavior toward his grandmother, though continuing, was less frequent. During this period Omar had learned to open doors and had developed a practice of wandering outside alone. The grandmother reported she was unable to stop him. In addition, Omar sometimes said he would tell his mother -- meaning appellant -- when he did not get his way and viewed the time outs his grandmother imposed as a game. Omar began counseling sessions on July 28. On July 31, the grandmother began parenting classes and family preservation to address the courts concern as to the appropriateness of paternal grandmother as an adoptive parent . . . .

Throughout the period between termination of reunification services and the section 366.26 hearing, the caseworkers conclusions concerning Omars development and relationship with the grandmother were positive. The caseworker reported that Omar was a normal, happy, well functioning child, . . . developing in an age appropriate manner and . . . bonded with [the] paternal grandmother. She also described him as thriving under the care of his grandmother, with no behavioral problems, besides being somewhat disobedient. She expressed the opinion that Omar appears to be bonded with paternal grandmother and to have adjusted well to his placement. In August 2006, she further stated that the grandmother has been very receptive in participat[ing] in the counseling to address parenting issues, and skill.

C. DCFSs Assessment of Omars Adoptability and Bond with Appellant

At the time reunification services were terminated, the caseworker stated in the Concurrent Planning Permanent Planning Adoption Assessment filed with the April 2005 report: [Appellant] has maintained regular visitation and contact with the child and the child could benefit from continuing the relationship. In September 2005, the caseworker again recommended that parental rights not be terminated at this time. However, in the February 2006 report, the caseworker stated that termination of parental rights would not be detrimental to Omar. The explanation given was that the prospective adoptive parent requests that the adoption be a closed adoption. Thereafter, the caseworker consistently took the position that parental rights should be terminated and that termination of parental rights would not be detrimental to the child . . . .

With respect to adoptability, the caseworker consistently stated: Due to the childs age, it is [DCFSs] impression that the child is adoptable. Paternal grandmother continues to express interest in adopting the child.

D. Section 366.26 Hearing

The court commenced the section 366.26 hearing in August 2006. Appellant called two therapists as witnesses. Bush, appellants personal therapist, testified she had observed appellant and Omar together approximately five times. Appellant behaved parentally toward him, helping him to get dressed and to eat, read to him, played with him, told him to cover his mouth when he coughed, and admonished him if he ran too far away. Omar ran to appellant, lit up when he saw her, talked to her, and looked to her for approval. Bush expressed the opinion that Omar was bonded to appellant. Alan Gordon, appellants family therapist, held sessions with appellant and Omar beginning in May 2006. His primary goal was to determine the strength of the attachment between them. He testified that the relationship between them seemed very natural and the bond appeared to be strong. When the two were together, Omar was quiet and obedient. When he had to leave, he was sad. Gordon observed no aggressive behavior or foul language. Gordon opined that severing the relationship with appellant would be detrimental to Omar, as he seemed to depend on appellant and get a lot out of the relationship.

DCFS did not call any witnesses, relying instead on the information and recommendations contained in the written reports. In closing, counsel for DCFS, joined by counsel for Omars father, urged the court to terminate parental rights. The attorney for Omar joined with appellant in asking that parental rights not be terminated. Although the court was prepared to make its ruling on August 9, the matter was continued to September 13 because Omars birth certificate could not be located. In the interim, DCFS submitted a report stating that the family preservation worker reported the grandmother was very receptive to the counseling sessions and that Omar had exhibited improvements in the way [he] behaves and respond[s] to [the] grandmothers instructions.

On September 13, 2006, the court found by clear and convincing evidence that Omar was adoptable because: He has been well cared for by his paternal grandmother for a substantial period of time. She is aware of all his needs and is meeting his needs. Appellant, on the other hand, did not grasp the concept of caregiving. The court found no evidence to indicate that it would be detrimental to terminate parental rights. Although Omar had a fun time with his mother, the court felt obliged to distinguish between fun time and the real time he spent with his grandmother. [W]eighing and balancing all the factors, the court found that the grandmother is the primary caretaker; appellant is the visitor . . . not occupying the caregiver or parental role. While Omar enjoys his visits and knows who his mother is, the court found no evidence that he is experiencing any distress or exhibiting any distress in not being with his mother. The court discounted the testimony of the therapists, who did not seem familiar with appellants misbehavior and who observed the child during playtime with [appellant]. Accordingly, the court concluded, the evidence d[id] not support that [Omar had] a substantial positive, emotional attachment such that the relationship would be greatly harmed if [parental rights were terminated]. Based on these findings, the court ordered parental rights terminated. This appeal followed.

DISCUSSION

Maintenance of the familial bond between children and parents -- even imperfect or separated parents -- comports with our highest values and usually best serves the interests of parents, children, family, and community. (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) However, when parents provide so inadequately for their children that the children must be removed from their homes, and the parents fail to overcome such inadequacies after reasonable assistance by public agencies, the states interest shifts from preserving the family to providing a stable, permanent alternative home for the children. (In re David H. (1995) 33 Cal.App.4th 368, 377.)

Once a court determines that the childs parents are, and are likely to remain, unfit to care for the child, the last phase of dependency begins -- implementation of a permanent plan under section 366.26. (In re David H., supra, at p. 377.) Section 366.26, subdivision (c)(1) requires the court to terminate parental rights and order the dependent minor placed for adoption if it finds by clear and convincing evidence that the child is likely to be adopted unless it finds a compelling reason for determining that termination would be detrimental to the child due to the existence of certain specified exceptional circumstances. The exception raised by appellant here is contained in subdivision (c)(1)(A) which applies where [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

In In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), the court explained that the benefit from continuing the [parent/child] relationship exception means that 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. (Id. at p. 575.) 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 parents rights are not terminated. (Ibid.) The court in Autumn H. recognized that [i]nteraction between natural parent and child will always confer some incidental benefit to the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.) But a significant attachment between the parent and child can only result from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation and from day-to-day interaction, companionship and shared experiences. (Ibid.)

In In re Casey D. (1999) 70 Cal.App.4th 38, the court explained that the holding in Autumn H., while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact. (Id. at p. 51.) Rather, the decision attempts to describe the nature of the beneficial parent-child exception to the general rule that adoption should be ordered when the child is likely to be adopted. Another way of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the childs need for a stable and permanent home that would come with adoption. (Ibid.)

It is clear that the parent contesting termination of parental rights under subdivision (c)(1)(A) bears the burden of proving either (1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) To overcome the preference for adoption and avoid termination of the natural parents rights, the parent must show 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., supra, at p. 466.) A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the childs need for a parent. (Ibid.)

The factors courts should take into account in determining whether loss of the parental relationship would cause the child to suffer substantial detriment include the age of the child, the portion of the childs life spent in the parents care and custody, the nature of the interaction between the parent and child when they are together, and the childs particular needs. (In re Angel B., supra, 97 Cal.App.4th at p. 467; see, e.g., In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207 [order terminating parental rights reversed where child was nine years old, had lived with his mother for the first six-and-a-half years of his life, expressed his wish to live with her again, and had no one else in his life to occupy the role of mother]; In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [order terminating parental rights reversed where children had been in mothers care for significant portion of their lives and psychologist testified they were primarily bonded to her and severance of the relationship would be detrimental to them].) On appeal, we review the juvenile courts findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court.^[7] (In re Dakota H., supra, 132 Cal.App.4th at p. 228; In re Jamie R. (2001) 90 Cal.App.4th 766, 774.) The judgment will be upheld if supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H., supra, at p. 228.)

Here, the juvenile court ruled that appellant failed to meet her burden of proving substantial detriment to Omar within the meaning of section 366.26, subdivision (c)(1)(A). Appellant contends the court erred, pointing to the testimony of her therapists, Bush and Gordon, both of whom said that Omar had a strong bond with appellant and expressed the opinion that severing the bond would be detrimental to him. However, as the court noted, their observations of appellant and Omar were limited and took place in an unnatural setting. Accordingly, the court chose to credit the caseworker, who had seen Omar in the care of his grandmother on numerous occasions and stated in her reports that, at those times, Omar had bonded with [his] paternal grandmother and adjusted well to his placement.

Appellant contends that the court seemed to discount . . . compelling evidence presented of the parental role [appellant] played in Omars life. We disagree. The court was familiar with all the facts, having presided over the case since 2003. In making its ruling, the court recognized appellants efforts and the extent of the relationship between her and Omar. The court was also mindful of the weighing process that must take place in balancing the strength and quality of the biological parent/child relationship against the benefits of the adoptive home. Acknowledging the closeness of the case and the difficulty of its decision, the court focused on the periods when Omar was with his grandmother and found he was well cared for and not experiencing or exhibiting undue distress during these separations from appellant.

That appellant attempted within the constraints of the limited time available to provide parental guidance to Omar cannot be denied. She consistently took advantage of the visitation permitted by the court. Although appellants efforts are to be commended, the primary focus of a section 366.26 hearing is not the parents efforts, but the childs needs. Generally, despite the parents best efforts to maintain a strong bond, it is appropriate to terminate parental rights where the circumstances indicate the child would not be greatly distraught by the loss of the relationship. Omar was only a year old when taken from appellants custody, and by the time of the section 366.26 hearing he had spent nearly three years in his grandmothers care. Although he was aware of the relationship between himself and appellant and showed affection toward her, the courts finding that there was no compelling need to maintain the legal relationship between appellant and Omar when a secure and permanent home with his grandmother was available was a reasonable one and supported by substantial evidence.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] Briefly, appellant was arrested for assaulting a fellow resident in her group home. Although the charges were ultimately dismissed, appellant did not contest the petition. Thereafter, appellant was ejected from a second home for the same reason.

^[2] Omars father was incarcerated at the time and was in and out of prison throughout the proceedings. He is not a party to this appeal.

^[3] The status report for the six-month review hearing in April 2004 stated that appellant had begun individual and group counseling and had enrolled in parenting classes and an anger management program, all while continuing to attend high school and attempting to visit Omar weekly in the grandmothers home. During the same period, appellant was caught by staff at her placement using marijuana and in possession of drug paraphernalia. In April 2004, just after the six-month review hearing, appellant was involved in an altercation at her group home, began skipping school, and was again caught smoking marijuana. In June, she was in danger of being dropped from her counseling program for missing sessions. In June and October, she was ejected from her third and fourth group homes.

^[4] Statutory references herein are to the Welfare and Institutions Code.

^[5] Because the grandmother attributed this misbehavior to visits with appellant, and because Omar returned from one visit with a red, blood-shot eye saying appellant had hit him and returned from another saying he had become separated from appellant while at a store, the court temporarily cancelled visits with appellant. Appellant denied hitting Omar.

^[6] Although Omar was taken to see a therapist, there is no evidence in the record that the court-ordered psychological assessment occurred. In April 2006, the court ordered DCFS to request an IEP (individualized education program) assessment from the local school district and indicated that the IEP assessment might take the place of a psychological evaluation. There is no indication in the record that the IEP assessment took place, although, the caseworker sent a letter to the local school district requesting one, stating that Omar may be a student who qualifies as having a disability under the federal and State special education laws.

^[7] Some courts believe the abuse of discretion standard should apply. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The practical differences between the two standards of review are not significant. (Ibid.)