In re Olivia V.
Filed 11/15/13 In re Olivia V. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In re OLIVIA V., a Person Coming Under the Juvenile Court
Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and
Respondent,
v.
S.V.,
Defendant and
Appellant.
G048235
(Super. Ct.
No. DP019167)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Gary Bischoff, Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Pamela Rae Tripp, under
appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County
Counsel, Karen L. Christensen and
Julie
J.
Agin, Deputy County Counsel, for Plaintiff and Respondent.
S.V. (Mother) appeals
from a judgment terminating her parental
rights with respect to her four-year-old daughter Olivia. She contends the juvenile court erred in
denying her request for an evidentiary
hearing on her petition for modification and by failing to apply the
so-called “benefit exception†to termination.
Finding these contentions unmeritorious, we affirm the judgment.
FACTS
Mother has a history of
drug-related criminal activity. In
November 2009, she was jailed for violating probation after testing positive
for methamphetamine and failing to comply with her mental health treatment
plan. Olivia’s father was also in jail,
so Olivia and her three siblings were detained and placed in protective
custody. At that time, Olivia was 8 months
old, and her sisters Melissa, E. and Haley were 16, 13 and 7 years old,
respectively.
title="">[1]
On December 23, 2009, Olivia was placed in the
foster home of Maria and Jorge M. A
reunification plan was established for Olivia’s family, and over the next 14
months, Mother made good on the plan.
Upon her release from prison, she moved into a recovery home, completed
a drug program and received treatment for her mental illness (drug-induced
psychosis and depression). She also
worked two jobs, visited Olivia regularly and tested clean on all of her drug
tests. Accordingly, on March 29, 2011, the juvenile court
returned all of the children to her care under a family maintenance plan. At that time, Olivia was two years old.
As a single, working
mother of four, Mother looked to her oldest child Melissa, who was then 18
years old, for help with the other children.
Mother also relied on Maria and Jorge to care for Olivia when she was at
work. Having already spent over a year
living with Maria and Jorge, Olivia was bonded to them and comfortable in their
care. Mother also received special
services through the “Wraparound†program, because Haley had severe
problems.
Despite everyone’s
efforts, Mother began to feel overwhelmed.
She managed to move the family into a three-bedroom house and was making
good progress on her mental health issues, but she was having trouble keeping
up the home and arranging the children’s various appointments. Worse yet, she began missing some of her drug
tests, and in March 2012, she tested positive for methamphetamine. Although she initially denied using drugs,
she eventually admitted giving in to her urge to use methamphetamine.
The relapse prompted
social services to file a supplemental dependency petition in April 2012. Mother pleaded no contest to the allegations
of drug use and failure to protect. E.
and Haley were taken to Orangewood Children’s Home, and Olivia was placed with
her father Robert E. However, Robert
couldn’t handle caring for a three year old, so Olivia was placed back into
Maria and Jorge’s foster home on June
15, 2012. Having lived there
before, and in light of her continuing contact with Maria and Jorge during the
family maintenance period, Olivia made a smooth adjustment into their
home. Described as happy, playful and
developmentally on track, Olivia showed no signs of stress from the
transition.
During this second
period of dependency, Mother resumed drug treatment. It was at least the fifth time in her life
she had enrolled in a treatment program to overcome addiction. This time around, she was angry and defensive
in therapy and refused to take responsibility for her actions. And although nearly all of her drug tests
came back negative, she did test positive for cocaine on one occasion in July
2012.
attorney admitted there was no basis for additional reunification services or
returning Olivia to Mother’s care. The
court agreed and scheduled a hearing to determine a permanent placement plan for
Olivia.
Pending that hearing, Mother
was allowed to visit Olivia three times a week for two hours a visit. In addition, Mother was allowed to
participate in the bi-weekly visits Olivia had with her siblings. Most of the visits were monitored by Maria or
Jorge, and they usually took place at a park or a McDonald’s. At first, Mother was not very engaged during
the visits. In fact, during the sibling
visits, E. was the one who primarily tended to Olivia, not Mother. However, toward the fall of 2012, Mother
started to become more attentive to Olivia during visitation. She brought her toys and played with her, and
Olivia seemed to enjoy the attention.
However, Olivia was reluctant to attend some of the visits, and when
they were done, she didn’t seem to mind departing from Mother.
Mother’s social worker
observed the visits on October 19 and November
14, 2012. She reported
Mother was playful with Olivia and interacted with her in an appropriate
manner. Olivia was happy and liked being
with Mother. She did not initiate
affection with Mother, but when Mother hugged and kissed her, she reciprocated
in like fashion. The visits ended with
Mother placing Olivia in her car seat and telling her she loved her. Olivia remained in a good mood and calmly
said goodbye.
As of December 3, 2012, it was the social
worker’s opinion that “[d]espite the frequent visitation, . . . Olivia does not
appear to have a strong attachment to [Mother].
Though Olivia appears to enjoy her visits with [Mother], Olivia does not
appear to seek [Mother] for care and comfort.
Olivia is . . . at ease away from [Mother and her siblings] and [does] not
show signs of distress at leaving them at the end of the visits or at being
apart from them. Olivia is noted to be
particularly attached to her current caregivers (Maria and Jorge, whom she
calls “mami†and “papiâ€), who have cared for her since she was approximately
eight months old. [They] have indicated
that they are willing to adopt her and want to provide her a loving and permanent
home.†The social worker’s
recommendation at that time was to terminate Mother’s parental rights and free
Olivia for adoption.
On December 12, 2012,
Mother informed her social worker she had read her reports and was concerned
Maria and Jorge were not providing her with complete information about her
visits with Olivia. She claimed there
were visits when Olivia cried and asked to come home with her when the visits
were over. However, Maria and Jorge did
not report this to the social worker.
Mother claimed this was because Maria and Jorge wanted to adopt
Olivia. She accused them of having a
conflict of interest and said her attorney had told her she could request a
professional monitor. The social worker
told Mother she had not perceived any bias or inappropriate behavior by Maria
or Jorge, and thus there was no reason for a professional monitor.
Apparently, the social
worker talked to Maria and Jorge about Mother’s allegations. According to the social worker, Jorge told
her that “at the end of the visits that took place on December 5th and December
7th, [Olivia] cried because she did not want the visit to end. On one of those days [Olivia] also told
[Mother] ‘I want to go with you.’
[Mother] replied by saying ‘soon’ and ended the visit without
incident. . . . [Olivia] did not continue to cry once they
drove away from the visitation site and did not make further requests to go
with [Mother].â€
Despite
this information, the social worker’s assessment of the situation remained the
same. Noting that “Olivia has been healthy
and continues to thrive in her current placement,†the social worker
“continue[d] to recommend that parental rights be terminated as to Olivia in
order for her to remain in a stable and permanent home through adoption.â€
After monitoring a
family visit that occurred on December
16, 2012, the social worker reported Mother gave Olivia and her
siblings early Christmas gifts that day.
Olivia was more focused on playing with her toys than interacting with her
family, and at the end of the visit, she was calm and content. E. carried her to her car and instructed her
to tell Mother she loved her, which she did.
Olivia remained calm and did not show any signs of distress throughout
her departure.
Mother
continued to visit Olivia on a regular basis in January 2013. Maria and Jorge reported the visits were
positive and Mother acted appropriately.
Olivia was playful with Mother and returned in a good mood. However, when Olivia was away from Mother,
she didn’t ask about her or request to see her.
At home with Maria and Jorge, she was at ease and looked to Maria for
comfort. Her disposition was upbeat and
she showed no signs of stress or anxiety.
Maria and Jorge agreed that, if they were allowed to adopt Olivia, they
would allow her to visit her siblings on a regular basis.
On February 6, 2013, the social worker monitored a
visit between Olivia and Mother at a McDonald’s restaurant. Mother brought Olivia a puzzle and coloring
supplies and was attentive to her throughout the visit. She also initiated physical contact with
Olivia. Olivia was happy and comfortable
with Mother and reciprocated her gestures of affection. At the end of the visit, they exchanged hugs
and kisses, and Olivia remained calm.
When she got home, she wanted to be held by Maria and was at ease in her
arms.
The next scheduled visit was on February 8, 2013. After waiting for an hour for Mother to show
up, Jorge decided to leave the visitation site with Olivia. Olivia asked why they were leaving, but she
did not seem upset when told it was because Mother had not arrived. When Olivia got home, she told Maria that her
“mommy†did not show up, but as before, she did not appear upset. Mother called Jorge later that night. Although she did not explain why she was
late, Jorge agreed to take Olivia back to McDonald’s for a visit. The visit went fine, but afterwards Olivia
got sick and vomited several times.
At Mother’s request, all
subsequent visits were monitored by independent third parties. On February
15, 2013, the social worker observed that Olivia slept halfway
through the visit, and when she awoke, she asked for “mommy Maria.†However, she eventually played with Mother,
whom she called “mommy,†and was in a good mood for most of the time. At the end of the visit, Mother placed Olivia
in her car seat and gave her a hug.
Olivia said goodbye and remained in a good mood as her car pulled
away.
On February 19, 2013, a social worker who was not
otherwise involved in the case monitored the visit between Mother and
Olivia. Maria was also present during
this visit. At the start, Olivia did not
acknowledge Mother, and Mother had to go up and give her a hug to get her to
notice her. Mother then tried to
interest Olivia in some toys she had brought her, but she was not successful. During the first 30 minutes of the visit,
Olivia asked for “mommy Maria†three times.
For the remainder of the visit, Olivia mostly played with other children
in the area without directly interacting with Mother. However, when she was not playing, she
enjoyed being held by Mother. And at one
point, Mother gave her a piggyback ride, and she became very animated. At the end of the visit, Olivia did not cry
or appear upset.
The independent monitor
for the visit on February 20, 2013
was Dr. Rosalva Martinez, a foster care worker.
Dr. Martinez observed Olivia slept during the first hour of the visit. She then slowly warmed to Mother and colored
and played with her for the second hour.
When the visit was over, Olivia had some difficulty saying goodbye
because she wanted to keep coloring.
Mother said I love you, and Olivia told her the same. When Maria arrived, Olivia ran up to her,
gave her a hug, and asked her about other members of her family.
On February 22, 2013,
Mother’s social worker monitored visitation.
Mother brought Olivia some toys and coloring materials, and Olivia
greeted her happily. While they were
coloring, Olivia asked for Maria and Jorge.
She then went over to a play structure, and Mother joined her
there. Later in the visit, Olivia said
she wanted to go home, but Mother talked her into coloring some more. When it was time for Mother to go, she asked
for a hug, and Olivia obliged. Overall,
the visit was happy and playful. Mother
was focused on Olivia and acted appropriately, but Olivia did not show any
signs of distress after Mother left.
The visit on February
26, 2013 was similar in many respects.
At Olivia’s request, Mother picked her up and carried her around in a
playful fashion. Olivia enjoyed the
attention, but at one point she asked for her “sister†Lupe, who is Maria’s
daughter. When Mother was taking Olivia
to her car at the end of the visit, Olivia was crying about a toy she had
misplaced. She did not respond when
Mother told her goodbye.
The next visit was
monitored by Dr. Martinez. When Mother
arrived, Olivia did not make eye contact with her and instead looked around for
Maria. But she slowly warmed up to
Mother and they colored and played games together. While Olivia was coloring, she said Maria had
told her that, when she was born, she “came out of her (Maria’s) tummy.†Mother corrected her, but Olivia insisted she
came out of “mommy Maria.†Dr. Martinez
told Mother she would talk to Maria about this.
Olivia spent the rest of the visit talking and playing with Mother. When it was time for her to go, she said bye
to Mother, gave her a kiss, and appeared to be in a good mood.
On March 1, 2013, Mother
told her social worker that Maria and Jorge were “pushing†Olivia to refer to
their children as her brothers and sisters.
Mother further alleged they told Olivia she was “loca†when Olivia told
them Mother was her biological mother.
Mother also renewed her complaint about Jorge and Maria observing
visitation and expressed concern her relationship with Olivia was not being
accurately reported. The social worker
told Mother the observations about visitation have been consistent among the
various monitors. It was the social
worker’s opinion that, although the visits were going fine, their impact on Olivia
“appears to be ephemeral, as the child shows no distress upon being separated
from [Mother] and appears content to return to [Maria and Jorge],†with whom
she has a “strong attachment.â€
Throughout this period,
Mother continued her drug treatment and tested negative on all of her drug
tests. However, she struggled to make
headway on her relationship with Olivia, as evidenced by their final reported
visit, which occurred on March 5, 2013.
That day, Olivia told Maria she did not want to visit Mother, but Maria
convinced her to go. However, when they
got to the visitation site, Olivia clung tightly to Maria and ignored
Mother. Feeling rejected, Mother started
to cry, as did Maria. Maria begged
Olivia to engage with Mother, but she refused.
She simply thanked Mother for the toys she had brought her and walked
back to Maria. Mother suggested they
reschedule the visit and tearfully departed.
When the social worker
visited Olivia’s home later that day, Jorge told her Olivia seemed fine when
she returned home. He did not notice
anything peculiar about her behavior, and the social worker observed she was
playing and seemed to be in a good mood.
When the social worker asked her why she didn’t want to visit Mother
that day, she said she just didn’t want to.
She also said she didn’t want to visit Mother the following day, because
Mother was boring and she wanted to be with “mommy Maria.â€
Jorge
told the social worker Olivia is very attached to Maria and usually asks for
her when she wakes up in the morning. He
also said Olivia usually wants Maria to come along with her when she is
visiting Mother. Maria confirmed
this. She told the social worker that,
besides that day, there had been other times when Olivia did not want to see
Mother, but she has always encouraged her to do so. Maria said this was the first time Olivia
outright refused to visit Mother.
On the heels of that
refusal, Mother filed a modification petition and asked the court to return
Olivia to her custody under a family maintenance plan or order reunification
services and unmonitored visitation. In
support of her request, Mother submitted a declaration stating, “I have
demonstrated continued sobriety since the last reporting period and have
attended near-daily A.A. [Alcoholics Anonymous] meetings
.
. . .†Mother also alleged she had an
A.A. sponsor, and her recovery was more of a priority for her now than it was in
the past. And she claimed she had
addressed her mental health issues, was employed and had a stable
residence. Finally, Mother claimed she
has consistently visited Olivia for six hours a week, and Olivia has
demonstrated a bond to her. In that
regard, Mother alleged Olivia calls her “mom,†looks to her to provide care,
and has expressed a desire to go home with her.
The court took up
Mother’s modification petition on March
11, 2013, which was the date of Olivia’s permanent placement hearing. Although Mother requested an evidentiary
hearing on her petition, the court determined there was no need for one because
1) her declaration was conclusory, and 2) even if everything she alleged was
true, she failed to show there was a change of circumstances or her requested
relief would be in Olivia’s best interests.
Therefore, the court denied the petition on its face.
The court then turned to the issue of Olivia’s
permanent placement. In addition to
considering the social workers’ numerous reports, which span hundreds of pages,
the court also entertained testimony from Mother, her current social worker, and
her oldest daughter Melissa.
Social
worker Martha Corona testified she was assigned to the case on August 30, 2012.
has met with Olivia seven times at Maria and Jorge’s residence and monitored
eleven visits involving Olivia and Mother.
The last visit she monitored was on March 8, 2013. When saying goodbye to Mother at the end of
that visit, Olivia said, “I wish I want to live with you.†Corona didn’t know what that meant or seek
clarification from Olivia. Corona also
admitted she has never asked Olivia if she misses Mother. Olivia has told her she enjoys visiting
Mother, and Corona has observed that Olivia is usually happy to see her
mom. However, Corona did not believe
they have a strong attachment because, although Olivia is usually glad to see
Mother, she does not get excited when they meet. And when their visits are over, she is
usually content to go on her way. Corona
also noted Olivia is very comfortable when she is in the care of Maria and
Jorge.
Speaking
to Maria and Jorge’s integrity and possible bias, Corona testified they were
questioned about some of the statements they allegedly made to Olivia. They denied telling Olivia that she was loca
or that Maria was her biological mother.
Corona felt they fairly monitored and reported on visitation. She said she has used professional monitors
in the past, but they cost her agency money, and its current practice is to
utilize the child’s foster parents as monitors for visitation. Corona also pointed out that, despite her
belief that Maria and Jorge were accurate and reliable reporters, she and
several other social workers monitored visitation throughout the case.
Mother
testified she has been sober since her children were removed from her care in
2012. She is currently on the third step
of her drug treatment program and is committed to maintaining a clean lifestyle
because her “heart†and “desire†are different now. Mother also said she is currently receiving
mental health services and is fully compliant with her medication
requirements.
Regarding
visitation, Mother testified Olivia sometimes hugs and kisses her at the start
of their visits, and sometimes she runs straight to the play structure when
they are at McDonald’s. Mother brings
her toys and games, and they play together, but it is hard to compete with the
play structure for Olivia’s attention.
Yet, when they do play together, “it’s with complete affection on both
sides.†Olivia likes it when she carries
her around, and she always calls her “mom.â€
As proof of their affection, Mother provided photographs showing her and
Olivia hugging and laughing at their visits.
Mother said it’s hard for her to describe their closeness, but “I know
that she knows I’m her mom.†She said
Olivia blows her kisses and “seems very confused†when their visits are
over. Mother thinks this is because
Olivia wants to go home with her, but she is also comfortable with Maria and
Jorge. Mother admitted Olivia is “closeâ€
and “bonded†to Maria and Jorge, and she shows no signs of reluctance when
returning to their care.
However,
Mother said Olivia was more affectionate with Maria than Jorge. She accused both Jorge and social worker
Corona of failing to report information that was favorable to her, saying there
were “a couple occasions where Olivia did say some things and it was not in the
report.†For instance, there were
actually four visits during which Olivia requested to come home with her, but
Jorge only reported one of them. In
addition, there were times when Olivia asked Mother why she can’t go home with
her. Mother said that even when she told
these things to Corona, she did not include them in her reports.
The final
witness was Olivia’s sister Melissa, who was 20 years old at the time of the
hearing. She testified Olivia and Mother
have always been very close, and during the time they lived together, Olivia
followed Mother around like “a little puppy.â€
Mother gave Olivia a lot of loving care and attention back then. And when they see each other now, Olivia is
always happy to visit and spend time with Mother. They talk and play together, and when the
visits are over, Olivia usually gets “really upset†and asks when she can go
home with Mother. On cross-examination,
Melissa admitted that most of the visits she attended occurred in 2012 and that
she hadn’t been to a lot of visits during the past couple of months.
In arguing
the matter to the court, Mother’s attorney urged the court to apply the
so-called “benefit exception†to adoption on the basis Mother has maintained
regular visitation with Olivia, and they have a “substantial positive emotional
attachment.†Mother’s counsel also
argued that having Maria and Jorge monitor visitation violated Mother’s due
process right to maintain her familial relationship with Olivia without undue
influence and biased reporting. She
urged the court to apply equitable considerations in deciding on what would be
best for Olivia.
In
making its ruling, the juvenile court did express concern about the practice of
having foster parents monitor visitation.
It opined the practice was “bad social work†because foster parents
often have an interest in adopting the child they are monitoring, and they are
generally less qualified than professional monitors to observe and report on
visitation. Still, the court did not
believe Maria and Jorge’s role in visitation interfered with Mother and
Olivia’s relationship. The court
determined Mother’s plight was attributable to her own failings on the drug
front. And although Olivia did request
to go home with her after a few of their visits, that was not very significant
in the grand scheme of things because there were many more visits (over 100)
during which Olivia left Mother’s company without showing any signs of longing
or distress. All things considered, the
court felt that not only would termination of parental rights not be
detrimental to Olivia, it would actually be in her best interest. Therefore, it terminated Mother’s parental
rights, freeing Olivia for adoption.
I
Mother contends the
court erred in denying her modification petition without an evidentiary
hearing. We cannot agree.
A parent petitioning to
modify a previous dependency order must show there has been a material change
of circumstances, and the proposed modification promotes the best interests of
the children involved. (Welf. &
Inst. Code, § 388; In re Casey D. (1999) 70 Cal.App.4th 38, 47-48.) To justify an evidentiary hearing on the
petition, a parent need not demonstrate a probability of success on the
merits. (In re Aljamie D. (2000)
84 Cal.App.4th 424, 432.) However, he or
she must at least make out a prima facie case for relief. (Ibid.) And although the petition must be liberally
construed in the parent’s favor, “[t]he prima facie requirement is not met
unless the facts alleged, if supported by evidence given credit at the hearing,
would sustain a favorable decision on the petition. [Citation.]â€
(In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Mother’s petition did
not allege such facts. In her
declaration, Mother alleged she was working and had a stable residence, but
that has been the case ever since Mother was released from jail back in
2010. There were no changed
circumstances alleged with respect to Mother’s employment or housing
situation.
Nor
was anything materially different in regard to visitation or Mother’s mental
health situation. Mother visited Olivia
on a regular basis throughout the case, and she consistently attended to her
mental health needs by going to therapy and taking her medication. While Mother is to be commended for those
things, they do not constitute a change of circumstances from what had been
occurring in the case.
In
her petition, Mother also alleged she was sober, attending A.A. meetings on a
near-daily basis, and had an A.A. sponsor.
However, there have been several periods in Mother’s life during which she
has been in recovery mode. The problem
is, she has never been able to stay the course and overcome her drug
problem. Even before this case arose,
Mother had sought help for her addiction and completed drug treatment. However, she relapsed in 2009, violating her
probation in the process. She then completed
another drug program as part of her reunification plan before relapsing again
in 2012. So the fact she was sober and
going to A.A. at the time she filed her modification petition in 2013 was not
really a change of circumstances so much as a continuation of her on-going –
and commendable – effort to lick her addiction.
Considering her lengthy drug history, it did not warrant returning
Olivia to her care, additional reunification services, or
In fact, nothing Mother
alleged in her petition constituted a change of circumstances or warranted a
modification of the case plan.
Therefore, the trial court was fully justified in denying the petition
without an evidentiary hearing. No abuse
of discretion has been shown.
II
Mother also challenges
the juvenile court’s decision to terminate her parental rights and free Olivia
for adoption. She claims the court
should have invoked the benefit exception to termination and placed Olivia
under a legal guardianship. But this too
was a discretionary call, and we cannot say that discretion was abused.
As
explained in In re Autumn H. (1994)
27 Cal.App.4th 567, 573, adoption is the preferred plan when a child cannot be
returned to his or her parents. “‘Only
if adoption is not possible, or if there are countervailing circumstances, or
if it is not in the child’s best interests are other, less permanent plans,
such as guardianship or long-term foster care considered.’ [Citation.]
Adoption, of course, requires terminating the natural parents’ legal
rights to the child; guardianship and long-term foster care leave parental
rights intact. After the parent has
failed to reunify and the court has found the child likely to be adopted, it is
the parent’s burden to show exceptional circumstances exist. [Citation.]â€
(Id. at p. 574.)
Exceptional
circumstances exist if, “The parents have maintained regular visitation and
contact with the child and the child would benefit from continuing the
relationship.†(Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i).) This
means “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.†(
at p. 575.) In this regard, we must
remember that “[i]nteraction between natural parent and child will always
confer some incidental benefit to the child.
The significant attachment from child to parent results from the adult’s
attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation.
[Citation.] The relationship
arises from day-to-day interaction, companionship and shared experiences. [Citation.]
The exception applies only where the court finds regular visits and
contact have continued or developed a significant, positive, emotional
attachment from child to parent.†(
In other words, the parent must occupy more than a “pleasant place†in
the child’s life (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324),
and parent-child relationship must be characterized by something more than
“frequent and loving contact.†(In re
L. Y. L. (2002) 101 Cal.App.4th 942, 953.)
While
Mother visited Olivia regularly, there is no evidence of a significant,
positive, emotional attachment between them.
Some of their visits were affectionate and pleasant to be sure, but
others were not. And as the trial court
noted, the vast majority of the visits ended easily with no signs of distress
or disappointment from Olivia. On the
other hand, the record shows Olivia is strongly attached to Maria and even
asked for her at times when she was visiting Mother. That’s hardly surprising considering Maria
and Jorge have cared for Olivia most of her life. Because of Mother’s serious drug issues, they
have been the most consistent source of comfort and support for Olivia.
Mother
renews her claim that having Olivia’s foster parents act as monitors was unfair. Accusing Maria and Jorge of having an
“internal bias,†Mother argues that because they “monitored the visits until
the very last month or so of the case, the reports are really tainted and not a
reliable source of evidence from which the court could conclude that the child
would detrimentally suffer from the termination of the parent-child
relationship.â€
title="">[4]
However,
not all of the information Maria and Jorge provided was unfavorable toward
Mother. In fact, Jorge told the social
worker that, sometimes at the end of visits, Olivia cried and asked to go home
with Mother. He also reported how Olivia
and Mother interacted and played together during the visits. Not everything he reported was positive about
Mother, but it wasn’t all negative either.
Moreover,
in reading the voluminous and detailed information supplied by the independent
monitors, it is striking how similar it is to the information supplied by Maria
and Jorge. Like Maria and Jorge, the
independent monitors generally described the visits as playful and upbeat, but
they noted that sometimes Olivia would wander off from Mother and play on her
own, and sometimes she would look around for Maria and ask for her by
name. They also noted that the
affection, to the extent it occurred, was usually initiated by Mother, not
Olivia. And none of the independent
monitors reported Olivia was greatly disappointed or showed signs of separation
anxiety when the visits were over. In
fact, it is undisputed that Olivia did not want to see Mother at all during
their final reported visit in early March.
In
light of this, we do not believe the proceedings were fundamentally unfair or
violated Mother’s due process rights.
The trial court took Mother’s allegations of bias very seriously, as do
we, but it ultimately determined additional independent monitoring would not
have changed the outcome. Based on the
entire record of the case, we cannot disagree with that assessment. The case was in the system for over three
years, during which Mother was provided extensive services and allowed regular
visitation. Yet, she was unable to
resolve her drug problem or even progress to the point of unmonitored
visitation with Olivia. On the other
side of the ledger, the record is clear that Olivia has flourished in Maria and
Jorge’s care and developed a deep emotional bond with them. This positive, loving connection will enable
Olivia to continue to reap substantial personal and emotional benefits. Weighing those benefits against the
incidental gains Olivia would derive from preserving her parental ties, we
cannot say the juvenile court erred.
There is no basis for disturbing its decision terminating Mother’s parental
rights over Olivia and freeing her for adoption.
DISPOSITION
The judgment is
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
name="_ftn1" title=""> [1] E. and Olivia are Mother’s
biological children, and Melissa and Haley were adopted by Mother after her
sister’s parental rights over them were terminated. Although Olivia’s siblings and her father are
not parties to this appeal, they will be referred to as needed to explain the
facts of this case.
name="_ftn2" title="">
[2] The positive test was derived from
the analysis of one of Mother’s hair follicles.
She disputed the results, and a subsequent hair follicle test came back
negative for illegal drugs.
