In re Jim M.

Filed 4/6/07 In re Jim M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Sheng Y. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her two-year-old son, Jim M.^[1] At the section 366.26 hearing, she as well as the childs father unsuccessfully asked the court to find that termination would be detrimental to Jim. Each parent claimed to have a beneficial parent/child relationship ( 366.26, subd. (c)(1)(A)) with Jim. Appellant contends the courts rejection of her claim was erroneous on a variety of grounds, none of which we find persuasive. On review, we conclude the court did not abuse its discretion and will affirm.

PROCEDURAL AND FACTUAL HISTORY

At his birth in June 2004, Jim tested positive for opiates and suffered medical conditions consistent with pre-natal drug exposure. Both appellant and the childs

father also tested positive for opiates and had histories of opiate abuse. As a result, respondent Fresno County Department of Children and Family Services (department) detained Jim and initiated the underlying dependency proceedings pursuant to section 300, subdivision (b). In September 2004, the Fresno County Superior Court adjudged Jim a dependent child, removed him from parental custody, and ordered reunification services for each parent.

Despite 18 months of reasonable services, appellant made minimal progress towards reunification with Jim. She, however, did participate regularly in court-ordered supervised visits with Jim. Those visits occurred twice-a-week and lasted two hours. Consequently, in January 2005, the court terminated all reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for Jim (setting order).^[2] The court also granted the fathers request, in which appellant joined, for a bonding study with respect to both parents. The court further authorized inclusion of Jims then current foster parents.

In May 2006 and in advance of the originally scheduled section 366.26 hearing, the department prepared a 366.26 WIC Report recommending the court find Jim to be an adoptable child and order parental rights terminated. The toddler had no medical, developmental, or emotional concerns. He had been placed with prospective adoptive parents within weeks of the courts setting order. Jim appeared to have transitioned well in their home.

The couple, who were foster parents, had no children of their own and wished to have a family and provide Jim with a permanent and safe home. The prospective adoptive parents were ready to make a lifelong commitment to Jim through adoption. Part of the departments preliminary evaluation showed the prospective adoptive parents to be suitable and committed to adoption as a permanent plan for Jim.

The department also reported that Jims visitation with his biological parents was appropriate.^[3] On the subject of the bonding study, the department added that the psychologist retained for the study, Dr. Laura A. Geiger, had only included the father and Jim. Furthermore, although Dr. Geiger found they shared a father and son relationship, there was not such a substantial, positive emotional attachment that Jim would be greatly harmed should the relationship be terminated. Attached to the departments May 2006 report was a copy of that bonding study.

Because Dr. Geigers bonding study did not include appellant or the foster parents, the court continued the section 366.26 hearing to July 2006. In an addendum report for the July hearing date, the department informed the court that Dr. Geiger completed a bonding study between appellant and Jim and attached a copy of the report for the courts review. According to the departments summary of this second bonding study, Jim and appellant did not have a parent/child relationship. It was more similar to that of a young child with an extended family member. Further, Jim would be far better off in an adoptive home given his limited relationship with appellant. The department also reported that the courts minute order to include the f/parent in the bonding study was not clear to Dr. Geiger. Apparently as a result, she had not included Jims foster parents in any bonding study.

The court eventually conducted a contested section 366.26 hearing in late July and August 2006. For its part, the department submitted the matter on its 366.26 WIC Report and Addendum along with the two bonding studies Dr. Geiger conducted. Counsel for Jims father then took the lead, calling his client as a witness, in addition to the social worker who was assigned to the case after the courts setting order and Dr. Geiger. After initially electing not to testify, appellant also took the stand.

The father testified about his weekly visits with Jim. According to the father, whenever Jim saw him, [the child] will come and hug me and kiss me all over and he refuse[s] to go back to their place. The father also testified it would be beneficial for Jim to maintain their father-son relationship because hes my blood and Im his father and since Im not dead yet and I must care for him as a father. He later added his belief that if Jim could no longer see him, the child would feel rejected. The father also believed he could help Jim become a success in life. The father claimed his oldest son had finished four years of college and was working.

The department social worker testified next. She had recommended adoption as Jims permanent plan. In the process, she assessed what was in the childs best interest and considered the fact that services had been terminated, Jims young age and need for stability, and whether there was a bond between the child and the parents. In this later regard, Dr. Geigers reports assisted her because the parents had been consistently visiting and visitation narratives showed there was parent/child interaction.

The fathers counsel would later offer, and the court would admit, some of those narratives into evidence. Those narratives detailed 23 visits between Jim and the parents between January 12 and July 7, 2006. There is an unexplained two-month gap between March 9 and May 11 in the visitation narratives.

Each narrative documented in 15-minute intervals what transpired between Jim and his parents during each visit. Virtually all of the visits followed the same routine: Jim played with a variety of toys usually in his fathers company while appellant would prepare a light snack for Jim. Then after Jim ate, appellant and the father spent the balance of the visit playing, holding or talking to Jim. The visits were routinely pleasant experiences and, except for a time when Jim was subdued , he was usually a happy child. Also, with one exception, the narratives described each visit as ending uneventfully with the foster parent picking up Jim or the parents taking Jim out to the foster parents vehicle. The one exception, a May 18, 2006, narrative, concluded with the note FM is here. Jim grabs moms leg as if he didnt want to leave, however he goes to foster mom.

However, the social worker testified there was nothing to show the parent/child interaction would outweigh adoption. Also, according to her information, Jim did not experience any stress after the visits. Visitation seemed to be more like that with an extended family member. When asked by the fathers counsel how much weight she gave the bonding study between the father and Jim in her consideration of the parent/child relationship, the social worker replied With -- that would include, to my recommendation, I would probably say approximately 75 percent.

On cross-examination by appellants attorney, the social worker acknowledged she did not personally observe the parents with Jim and was comfortable with reading the visitation narratives and the bonding study. She interpreted narratives of visits between appellant and Jim to mean Jim interacted with both parents.

On redirect examination by the fathers counsel, the social worker testified she considered Jims foster parents to be his prospective adoptive parents.

In response to questions by Jims counsel, the social worker testified the parents remained on supervised visits even after 18 months of services. She doubted whether visits could ever be unsupervised unless the parents tested clean for drugs. The social worker did not believe the lack of future contact with his parents would be detrimental to Jim because he was in a two-parent household that was meeting his needs on a daily basis; he was establishing a bond and a relationship with his prospective adoptive parents; and when he was home, Jim did not ask for his birth parents.

When appellant testified, she described playful visits with Jim. She claimed whenever his foster parents came at the end of visits, he looks crest-fallen and he doesnt appear happy to return with them. He would also cling to her and cry. According to appellant, Jim called her Mommie and it was obvious he misses them. Appellant felt she had developed a relationship with him. As she put it, I love him more than I could explain.

The last witness called was Dr. Geiger. She testified she had conducted over a 100 bonding assessments at the time in February 2006 when she conducted her study of the father and Jim. Due to a language barrier, the department arranged for a Hmong language interpreter for both the father-son and mother-son bonding studies. The same interpreter translated in each assessment. Dr. Geiger did not know if the interpreter was state-certified. However, because of the language barrier, Dr. Geiger did not have the parents complete certain tests, most notably a parenting stress inventory. This was because it is impermissible to translate the test into a different language. Translation could affect the tests validity and reliability. The test is partially designed for American cultural standards that do not translate to other cultures.

When asked whether cultural differences would likewise diminish the reliability of measuring a parents performance in areas of structure, nurturing, challenge and engagement, Dr. Geiger replied that in these areas as well the validity of the tests would be automatically somewhat reduce[d]. On examination by appellants counsel, Dr. Geiger clarified a parents different culture plays a 15 percent role in assessing the validity of a bonding study overall. It usually played a major part in the nurturing component. The psychologist acknowledged a difference in culture could affect a parents spontaneity. However, in her estimation, the tasks she asked the parents to complete were simple ones that all parents generally do with children, such as feed them, hold them, touch them, put lotion on them, and play with them. Dr. Geiger also testified she had experience with Hmong ways of expression, both verbal and nonverbal, through other evaluations she had conducted of Hmong clients.

The fathers attorney also questioned Dr. Geiger about the visitation narratives as they related to him. The close of Dr. Geigers testimony marked the end of the evidentiary phase.

Closing arguments revolved around each parents claim under section 366.26, subdivision (c)(1)(A) that termination would be detrimental to Jim because there had been regular visitation and Jim would benefit from a continuing parent/child relationship. Both parents also argued Dr. Geigers bonding studies were flawed. They questioned the interpreters accuracy and claimed there was a cultural gap which Dr. Geiger had not properly taken into account. County counsel, on behalf of the department, and Jims attorney argued that the parents had failed to carry their burden of proof because there was no evidence that termination would greatly harm Jim.

Following closing arguments, the court asked what was the parents evidentiary burden under section 366.26, subdivision (c)(1)(A). The court mentioned having looked at the provision as well as some case law and found no explanation of a parents burden of proof. Although none of the attorneys could cite specific authority to the court, county counsel and both parents attorneys were in agreement that the court should apply a preponderance of the evidence standard. In particular, Appellants attorney believed there was a code provision directing that unless a higher evidentiary burden was clearly stated, the court should apply the preponderance standard.^[4] The court replied Okay. All right. Thank you.

Because it had not had the opportunity to review the admitted visitation

narratives, the court continued the case for its ruling. On a later date, the court expressly found that the narratives were not inconsistent with Dr. Geigers opinions regarding the existence of a father/child relationship and the non-existence of a mother/child relationship. However, as the court went on to explain, the bigger question was whether either parent had established termination would deprive Jim of a substantial positive emotional attachment such that he would be greatly harmed. That in the courts estimation was a different question from whether there was a parent/child relationship. While the visitation narratives went to the existence of such a relationship, they were insufficient to show Jim would be greatly harmed. The court mentioned it took into account the following factors: Jims young age, the fact that he had spent no portion of his life living with his parents, the interaction between Jim and his parents which the court described as pleasant, positive and affectionate, and Jims need for stability and permanence.

The court also responded to the parents argument that Dr. Geigers bonding studies should not be dispositive. The court explained even if one were to discount Dr. Geigers study, the Court still did not find evidence of that harm in the record. In turn, the court found clear and convincing evidence of Jims adoptability and terminated parental rights.

DISCUSSION

Appellant proffers four separate grounds to support her claim that the court erred by rejecting her argument that termination would be detrimental to Jim. First, she claims she presented sufficient evidence that she maintained regular visitation and contact with Jim and he would benefit from continuing the relationship ( 366.26, subd. (c)(1)(A)). Second, she argues there was neither evidence of a bond between Jim and his prospective adoptive parents nor evidence that the prospective adoptive parents made a full commitment to adopting Jim. Third, she contends the bonding study was so flawed that the court should not have relied on it or the conclusions of the social worker which were substantially based on the bonding study. Fourth, she criticizes the trial court for not announcing which standard of proof it applied in rejecting her argument.

I.

Appellants first argument fails in part because we do not review the trial courts decision for substantial evidence. Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

Further, on review of the record, we find no abuse of discretion. While there is no doubt that appellant maintained regular visitation with Jim over the course of his dependency, the law required her to show that their relationship was of such benefit to Jim that termination would greatly harm him. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) This she did not do.

The Autumn H. court mentioned some of the variables which logically affect a parent/child bond: [t]he age of the child, the portion of the childs life spent in the parent's custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . . (Id. at p. 576.) While appellant concentrates on the positive effect of her interaction with Jim, we note the trial court expressly applied all four of the Autumn H. variables and determined they did not support a finding of detriment.

I took into account the factors that were discussed in Beatrice M., those factors being the age of the child. In this case Jim is now about two years old. I took into account the portion of Jims life that he has lived with his parents, which is really no portion of his life. I took into account the effect of the interaction between Jim and his parents, which I would describe as pleasant, positive and affectionate. And I also took into account the fourth factor, which is the childs needs. And, certainly, theres a need on the part of this child for stability and permanence.

We also agree with the trial court that evidence of a bond between appellant and Jim, including the visitation narratives, appellants description of their pleasant and affectionate visits and her claim that Jim recognized her as Mommie, does not amount to evidence that Jim would suffer in the absence of continuing contact with appellant. As the trial court pointed out, that is a different question. Indeed, even the evidence that at the end of one visit Jim did not want to leave appellant and go with his foster parent does not prove termination would be detrimental to the child. As noted by the court, Jim also responded positively with his foster parents and did not display any distress with his foster parents in the biological parents absence.

To quote again from Autumn H.,

Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] (Autumn H., supra, 27 Cal.App.4th at p. 575.)

Here, except for twice-weekly visits of relatively short-duration, Jim never had experienced day-to-day interaction, companionship and shared experiences with appellant.

On review of the record, we conclude the trial court did not abuse its discretion.

II.

As mentioned above, appellant next claims the court erred because there was neither evidence of a bond between Jim and his prospective adoptive parents nor evidence that the prospective adoptive parents made a full commitment to adopting Jim. Appellant appears to claim that absent such evidence that a court should rule in favor of preserving the parent/child relationship. While we question whether appellants assessment of the record is accurate, we nonetheless disagree with her argument as discussed herein.

To make her argument, appellant quotes case law, most notably Autumn H., interpreting the meaning of the phrase benefit from continuing the [parent/child] relationship in section 366.26, subdivision (c)(1)(A).

[We interpret the phrase to mean] the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; emphasis added.)

Appellant in turn extracts the phrases in a permanent home with new, adoptive parentsand a new family and interprets them to require that a court consider the nature of the childs relationship with his foster family and their level of commitment to adoption in order to evaluate whether termination would be detrimental. While we cannot speak for the Autumn H. court, we have endorsed the same balancing approach described in Autumn H. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342). By so doing, however, we have not required that a trial court take into account a childs specific prospective adoptive family, if there is one. Rather, the phrases emphasized by appellant allude to the statutory preference for adoption and our statutory schemes presumption that an adoptive home will provide the security and the sense of belonging to which a child is entitled. (Ibid.)

In her reply brief, nevertheless, appellant actually cites In re Lorenzo C., supra, as supporting authority for her position because we ruled a trial court did not abuse its discretion by considering the childs bond with his prospective adoptive parents or comparing it with the bond between the child and his birth parent. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1342.) She extrapolates from our ruling that therefore a trial court must consider the lack of proof of such a bond between the child and prospective adoptive parents. Her extrapolation is less than reasonable. A conclusion that a court did not abuse its discretion by considering certain evidence does not amount to or even support a requirement that a trial court must consider such evidence in its evaluation.

Finally, appellants claim depends on a fundamental misunderstanding of Californias law on permanency planning. Selection of adoption as the appropriate permanent plan and termination of parental rights does not depend on the child being in an adoptive home. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11 [it is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings].) If, as in this case, the child is likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Thus, the lack of evidence regarding any new family bond does not bode in favor of a birth parents claim that termination would be detrimental.

III.

To support her attack that the bonding study devoted to her and Jim was so flawed that the court should not have considered it, appellant raises four criticisms. Those criticisms are:

- some allegedly critical facts cited by Dr. Geiger in her report were inaccurate;

- there was no showing of the interpreters competence;

- Dr. Geiger could not perform any objective tests due to the language barrier and the cultural difference affected her assessment in the areas of structure, nurturing, challenge and engagement; and

- there was no showing of Dr. Geigers qualifications to comment in her written report on appellants use of controlled substances.

Appellant acknowledges she did not voice these specific criticisms in the trial court. Nevertheless, she urges this court to exercise discretion and consider her arguments on appeal.

To a large extent, appellants criticisms go to the foundation for Dr. Geigers opinions and therefore to the admissibility of such evidence. (Evid. Code,  801 et seq.) However, because she did not object to, move to exclude, or move to strike the evidence in the trial court, appellant is not entitled to seek reversal of the termination order based on her foundational criticisms of Dr. Geigers opinion. (Evid. Code,  353.)

Alternatively, appellants criticisms go to the weight the trial court should have given Dr. Geigers opinion. However, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

In any event, appellant loses sight of the fact that a bonding study is not a prerequisite for a section 366.26 hearing. (See In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.) This is because, by the time of the section 366.26 hearing, family preservation is no longer an object of the statutory scheme. (Id. at pp. 1339 & 1344.) Once reunification efforts cease, the scale tips away from the parents interest in maintaining family ties and towards the childs interest and permanence and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) Instead, the bonding study is a tool which the parent may use to support a claim under section 366.26, subdivision (c)(1)(A). Thus, even assuming for the sake of argument Dr. Geigers bonding study of Jim and appellant was flawed, appellant is not entitled to reversal of the termination order. It still remained appellants burden to prove that termination would be detrimental to Jim. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1345.) Here, as previously discussed, there was no such evidence.

IV.

Last, appellant complains because the court earlier raised a question about the level of appellants evidentiary burden and thereafter did not state the burden of proof which it applied to appellants showing, we must reverse the termination order. We disagree. First, appellant fails to cite and we know of no authority requiring a court to state the standard of proof it applied under these circumstances. Second, appellant has failed in her appellate duty to affirmatively show error on the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) If appellant questioned whether the court applied the correct standard of proof, it was incumbent on her to inquire of the court on the record. Third, appellant brushes aside the fact that, according to the record, all of the parties were in agreement that appellant bore a preponderance of the evidence burden of proof. Therefore, it comes as no surprise to us that the trial court did not state the burden of proof it applied in rejecting appellants detriment claim.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Vartabedian, Acting P.J., Cornell, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The court previously terminated reunification efforts for the father after 12 months of services.

^[3] As the social worker would later testify, she had been assigned to Jims case since the setting order and had not supervised any of the visits. Instead, she relied on visitation narratives.

^[4] While counsel believed the provision was in the Welfare and Institutions Code, she appears to have been referencing Evidence Code, section 115 which states, except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.