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In Re L.S., A Person Coming Under the Juvenile Court Law. v. T.S

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 21, 2010

IN RE L.S., A PERSON COMING UNDER THE JUVENILE COURT LAW. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.S., DEFENDANT AND APPELLANT.

(Super. Ct. No. JV08-579)

The opinion of the court was delivered by: Butz ,j.

In re L.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Yolo)

T.S., mother of L.S., appeals from an order of the juvenile court terminating mother's parental rights.*fn1 (Welf. & Inst. Code, §§ 366.26, 395.)*fn2 Mother contends the juvenile court committed reversible error in finding the statutory, beneficial relationship exception to termination of parental rights did not apply to these dependency proceedings. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Some of the factual discussion and analysis contained in this appeal is derived from our opinion in case No. C063495, of which we take judicial notice. (In re L.S. (Nov. 8, 2010, C063495) [nonpub. opn.]; Evid. Code, § 451, subd. (a).)

In October 2008, mother went to the West Sacramento police station with her then-seven-year-old daughter, and asked them to take custody of the minor as they had nowhere to live. The Yolo County Department of Employment and Social Services (the Department) took custody of the child. Two days later, the child was returned to mother when she told the court she found a transitional housing program in Roseville intended for families. (In re L.S., supra, C063495.)

In November 2008, the Department removed the seven-year-old child from mother's custody after mother failed to comply with the court's order to remain in the transitional housing program. Mother and the child were found in a motel in Sacramento with no plan for housing after three days. (In re L.S., supra, C063495.)

The court subsequently sustained the amended section 300 petition, ordered the child to remain in foster care, and ordered mother to participate in a reunification plan with services provided to mother and the child. (In re L.S., supra, C063495.)

Mother appealed from the juvenile court's jurisdictional and dispositional orders. In April 2010, this court issued its opinion, affirming those same orders. (See In re L.S. (Apr. 26, 2010, C061884) [nonpub. opn.].)

When mother's services began, she was living in a shelter for abused women in Yolo County. Over the next six months, mother lived in a total of five different shelters, having left each of the shelters for different reasons. (In re L.S., supra, C063495.) During that time, mother also failed to follow through with numerous referrals for services, failed to secure housing, and failed to find a job. She completed a parenting class, but showed no signs of benefitting from it, and she failed to complete any of the domestic violence counseling she was directed to complete. Mother rebuffed the Department's efforts to find her a support network, and argued she was too busy trying to find a place to live to participate in counseling. (Ibid.)

Mother also continued to show poor parenting skills with her then-eight-year-old child. She continued to discuss inappropriate, adult topics with the minor during visitation, where minor and mother interacted as friends or sisters--not as parent and child. During visits the minor took the parenting role, asking mother whether she had enough to eat or drink, was taking her classes, had gotten a job, or found a place to stay. (In re L.S., supra, C063495.)

At the six-month review hearing, the court was concerned that mother's inability to follow through with her services or benefit from them resulted from some sort of psychological or processing disorder. Thus, the court ordered a psychological evaluation to be completed. The court also ordered mother to resume individual counseling immediately. (In re L.S., supra, C063495.)

The psychological evaluation was conducted and no learning disorders or cognitive delays were identified. Mother was then ordered to complete the remaining services recommended by the Department including domestic violence counseling, further parenting education, and "family preservation services." The minor was then placed with her maternal grandmother in Temecula, California and mother was permitted supervised telephone contact with the minor so long as she continued to follow her case plan. Mother also was ordered to continue submitting to drug testing. (In re L.S., supra, C063495.)

Mother appealed from that order. On appeal, mother argued there was insufficient evidence to support the finding that reasonable services were provided to her and that the minor would be at a substantial risk of detriment if returned to her custody. Mother also argued the juvenile court abused its discretion in ordering her to continue submitting to drug testing. (In re L.S., supra, C063495.)

On November 8, 2010, this court issued its opinion, reversing the juvenile court's order for continued drug testing but affirming the remaining orders of the court. (In re L.S., supra, C063495.)

After the minor was placed with her maternal grandmother, mother continued having weekly, supervised telephone contact with the minor. Mother, however, refused to continue participating in services in Yolo County. Mother told the Department she would resume services once she relocated to Temecula, but mother remained in Yolo County.

Mother also continued to believe that she only needed to find a job and a place to live in order to have the minor returned to her custody. Thus, despite the Department's efforts, mother continued to lack insight into the reason for the Department's involvement in their lives. She continued to lack safe, stable housing, and she still did not have a job. Mother also persisted in discussing adult topics with the minor, described as a "parentified" child, demonstrating that mother was unable to assume a parental role even during the limited contact she had with the minor.

Accordingly, the Department recommended terminating services to mother and pursuing a plan of adoption for the minor. In February 2010, the juvenile court adopted the findings and recommendations of the Department and terminated mother's services.

The minor's maternal grandmother, with whom the minor had been living since October 2009, expressed her interest in adopting the minor. An adoption assessment was performed by the Department. The minor's health was good and her immunizations current. She was nine years old and only in the second grade, but since being placed with her grandmother her grades had been improving and she had access to a tutor.

The minor's emotional status was described as "stable"; she had "calmed down a lot" since moving in with her grandmother. It also was observed that the minor seemed "happier" and was more focused in school. She was participating in weekly karate lessons as well as the local Boys and Girls Club. When asked, the minor said "she was excited about going to live with her grandmother and expressed her desire to be adopted by her grandmother."

Based on its evaluation, the Department concluded the minor was adoptable, and the minor's grandmother was committed to adopting her. Accordingly, the Department recommended terminating mother's parental rights and preparing the minor for adoption.

A contested hearing was held in June 2010. The social worker's report was admitted into evidence and the social worker provided brief testimony. Mother, who was present at the hearing, chose not to testify but submitted a declaration in support of her position that the grandmother should be appointed the minor's legal guardian, and not become her adoptive parent.

After considering the evidence and argument of counsel, the juvenile court determined the minor was adoptable and no exceptions to a plan of adoption were established. Accordingly, the court adopted the Department's findings and recommendations and terminated mother's parental rights. Mother appeals from that order.

DISCUSSION

Mother claims the juvenile court committed reversible error in terminating her parental rights because the court's finding that the minor would not benefit from continuing her relationship with mother is not supported by substantial evidence. Noting evidence of regular visitation, a long-term relationship, L.S.'s stated desire to be with mother, and the strong bond existing between them, mother argues the record contains evidence that severance of that relationship would cause great harm to the minor.

"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

Another of the circumstances under which termination of parental rights might be detrimental to the minor is: "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)(B)(i).) The benefit to the child must promote "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. 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 parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)

The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1373.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).)

In this case, it is true mother had regular contact with the minor, and that a strong bond existed between them, as the juvenile court recognized. It also is true the minor required permanency, and had been with her caregiver, her grandmother, for seven months at the time of the hearing. Moreover, it was evident the minor developed a "significant relationship" with her grandmother during that time.

Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both Autumn H. and Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental-type involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support mother's suggestion that the minor would benefit substantially from continuing her relationship with mother primarily because of the length of time the minor had lived with her and the attachment existing between them. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)

Mother contends the record establishes the existence of a beneficial relationship between herself and the minor, precluding a finding of adoptability. The juvenile court was authorized to conclude the contrary was true. Evidence of a significant parent-child attachment by itself does not suffice. Instead, the record must show such benefit to the minor that the detrimental effect of termination of parental rights would outweigh the benefit of adoption to the minor. Here, as the court determined, the record was bereft of such a showing. Instead, there was evidence suggesting the minor was "parentified," and focused on caring for mother's needs rather than the other way around. Perhaps the clearest example of the unhealthy concern the minor has for mother is reflected in the following statement the minor made to the court through her social worker: "All the foster kids miss their Moms. They wish they had their Mom, but they cry every night because they miss their Mom. So, they wish on a star. So, can you please let me go back to my Mom? She stays up crying all night until midnight crying because she misses me. Please judge, let me go back to my Mom. Pretty please." (Italics added.)

The other children are crying because they miss their mother. The minor, then eight years old, is worried her mother is up all night crying because mother misses the minor. This is not a positive emotional attachment for the minor. Indeed, that mother tells the minor she is up all night crying because she misses the minor is further evidence that mother continues to place the minor in the role of parent and caregiver. An eight-year-old child should not be made responsible for her parent's emotional well-being and clearly this minor feels that she is.

Mother suggests that because she had maintained a significant parent-child relationship with the minor, which included a long history together and regular contact while in placement, the circumstances of her case compare favorably with those found in other cases. We disagree. In In re S.B. (2008) 164 Cal.App.4th 289, cited by mother, the Court of Appeal, Fourth Appellate District, Division One, found an exceptional case where a beneficial relationship existed that would preclude adoption. Accordingly, the court in S.B. reversed the order that terminated parental rights. (Id. at pp. 300-301.) The difficulty for mother here, as the juvenile court found, is that she failed to establish the requisite beneficial relationship with the minor, in the absence of which the exception does not apply.

Here, the issue was as follows: In light of the minor's adoptability, would a continued relationship with mother benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court's answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor. As the record reflects, the juvenile court had before it ample evidence on the matter, including social workers' reports and social workers' testimony, along with mother's sworn declaration.

The record shows the juvenile court acknowledged, indeed was impressed with, the ongoing relationship between mother and the minor. Nevertheless, the court concluded this was not enough to show the relationship was beneficial to the minor.

After it became apparent that mother would not reunify with the minor, the juvenile court had to find an "exceptional situation existed to forego adoption." (Autumn H., supra, 27 Cal.App.4th at p. 576.) In this case, after a comprehensive examination of the circumstances, the court determined the minor would not benefit from continuing her relationship with mother to such a degree that termination of parental rights would be detrimental to the minor. Mother had the burden to demonstrate the statutory exception applied. We conclude she failed to make such a showing. Therefore, the court did not err in terminating her parental rights. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)

DISPOSITION

The order of the juvenile court terminating parental rights is affirmed.

We concur: HULL , Acting P.J. ROBIE ,J.


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