IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
April 25, 2011
IN RE F.M., A PERSON COMING UNDER THE JUVENILE COURT LAW.
EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
M.A., DEFENDANT AND APPELLANT.
IN RE J.F. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
M.A., DEFENDANT AND APPELLANT.
(Super. Ct. No. PDP20090103) (Super. Ct. Nos. PDP20080059, PDP20080060, PDP20080061)
The opinion of the court was delivered by: Hull, J.
In re F.M.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant, mother of minors J.F., F.F., A.F., and F.M., appeals from the juvenile court's orders terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) She contends the juvenile court erred in concluding the beneficial relationship exception to termination of her parental rights did not apply. We affirm the orders.
FACTS AND PROCEEDINGS
In June 2008, El Dorado County Department of Human Services (the Department) filed section 300 petitions on behalf of appellant's three sons, J.F. (age three) and twins A.F. and F.F. (age two), alleging appellant was unable to adequately act as their parent due to her significant substance abuse problem. A petition was also filed on behalf of the minors' older sister, I.F., however, she is not a subject of this appeal. The court took jurisdiction and all four children were detained. I.F. was placed with the maternal grandmother. Appellant's three sons were placed in foster care. Appellant visited the minors twice a week for a total of four hours a week.
In November 2008, J.F. was returned to appellant's care and, thereafter, twins A.F. and F.F. began weekend visits with appellant. Appellant gave birth to a fourth son, F.M., in March 2009. In June 2009, A.F. and F.F. were also returned to appellant's care.
In August 2009, new petitions were filed, on behalf of all of appellant's children, alleging appellant had improperly administered medication to F.M., requiring emergency medical care, and had failed to protect F.M. from a domestic violence dispute. The children were detained and placed in foster care.
Appellant's four sons were returned to her care in October 2009; however, in December 2009, a new petition was filed on behalf of the children alleging appellant had relapsed into substance abuse. The children were again detained and placed in foster care.
Appellant visited the children four times a week for two hours each visit, and had telephone contact with the children. She failed, however, to reunify with the children and reunification services were terminated in January 2010.
The social worker reported the children were healthy, with no developmental problems. Visitations were regular and went well. The four boys were living in a six-bedroom home with qualified prospective adoptive parents. The social worker recommended parental rights be terminated as to the boys and that they be freed for adoption. The social worker recommended permanent guardianship for I.F., who remained placed with the maternal grandmother, as there were concerns the grandmother could not pass the medical requirements for adoption.
The juvenile court ordered a bonding study, which was performed by Dr. Eugene Roeder in March 2010, just before the boys were moved into the current placement. Dr. Roeder interviewed appellant, I.F. and J.F., the previous foster mothers, and the maternal grandmother. He also reviewed numerous records and observed the children interacting with appellant. Dr. Roeder noted that the children had been exposed to an inconsistent and unstable early development environment. Appellant and the father of J.F., A.F., and F.F. had separated on several occasions prior to the children's initial detention. Additionally, the children had been removed from appellant's care on three separate occasions.
Dr. Roeder found that each of the boys had a different relationship and attachment level with appellant. J.F. had an attachment but had already demonstrated the ability to form new attachments. He had recently been moved to a new foster home and liked living there. In many ways, he had already "moved on." Dr. Roeder described J.F.'s attachment with appellant as being able to "take it or leave it" and found that J.F. had already seen the benefits to him of being in a more stable and healthy developmental environment. Dr. Roeder determined that, of the four boys, the impact of terminating the relationship with appellant would be the least on J.F.
A.F. had spent half his conscious life out of appellant's custody. While he had an attachment to appellant, it was partial and insecure. He had learned to expect that he would sometimes see her and that sometimes she would be absent, and he had adapted to this circumstance with only minimal consequences to his development. Dr. Roeder concluded that he would not suffer detriment if his relationship with appellant were terminated.
F.F. had also spent half his conscious life out of appellant's custody and had developed a partial and insecure attachment to her. He was having a great deal of difficulty in his development and adjustment, and was having the most difficulty of all the siblings experiencing the multiple reunifications and separations. Dr. Roeder concluded that, although termination of the relationship with appellant would be hardest on F.F. due to his partially compromised development, he would not suffer detriment from the termination.
F.M. demonstrated some attachment to appellant, but had also already formed new attachments. He was not yet of the age or developmental level in which terminating his contact with appellant would be harmful to him. Finally, Dr. Roeder concluded that the sibling group could be split if necessary, keeping the twins together if possible.
In July 2010, several months after the boys were moved into their prospective adoptive home, the social worker reported that they had made "good progress" in their ability to respond to parental love and guidance and were demonstrating feelings of belonging and security with the prospective adoptive parents. J.F. was thriving in the placement. He was adjusting well and had become particularly attached to the prospective adoptive father and the nephew. He, as well as the other children, were initially reluctant to interact with the social worker when she came to visit, acting anxious about her being there to remove the children from the home. But the children became more comfortable with encouragement from the prospective adoptive parents.
A.F. was described as behaving appropriately, and as a happy and easy-going child. F.F. was struggling with his behavior, as he had learned to get attention through negative behaviors. His problems were made worse when he skipped his nap, which occurred on days he visited appellant. F.M. was thriving in the placement. Initially, he had become anxious and cried whenever the prospective adoptive parents were out of his sight, but he no longer appeared fearful when they left the room and had learned to interact with others in the family when they were gone. The prospective adoptive parents had been assessed and were fully capable of and committed to adopting the four boys.
The section 366.26 selection and implementation hearing took place on August 24, 2010. Dr. Roeder restated his conclusion that it would not be detrimental to any of the boys to sever their relationship with appellant. He explained that, while the children may be sad and have to deal with a significant loss, termination of the relationship would not be detrimental in that they would adjust and overcome that loss. He further clarified that J.F.'s attachment to appellant was a healthy one, but A.F.'s and F.F.'s was not. He also noted that permanency and stability was particularly important for F.F., whose development had been negatively impacted by the previous instability.
The foster family agency social worker, Christine Krawford, testified that some of the children's previously displayed problematic behaviors, such as accidents during or after visits, anxiousness, and nightmares, had improved in the immediately preceding months. She frequently observed the children in their prospective adoptive home and they appeared comfortable and affectionate with the prospective adoptive family. They referred to the prospective adoptive parents as "Mommy Lori" and "Daddy Shawn," and would grab on to them, kiss them, and hug them. They referred to appellant as "Mommy [M.]" and were also bonded to her.
The Court Appointed Special Advocate (CASA), Hellen Mitakys, however, testified and filed a report disagreeing with the Dr. Roeder's conclusions. Although she agreed that she was not qualified to render psychological opinions, she believed that termination of parental rights should be delayed. The boys seemed to be doing well in their prospective adoptive home but she had seen the "spark" or "light" go out of their eyes since in the most recent months. Mitakys believed the better course of action was to keep the children in foster care to allow appellant to prove to the court that she had changed and could resume custody of the children.
The juvenile court expressly considered the conflicting opinions of Dr. Roeder, Krawford and Mitakys and balanced the strength and quality of each child's relationship with appellant against the security of adoption. The court concluded appellant had not established that the benefit to the children of continuing their relationship with her outweighed the benefits of adoption and terminated parental rights.
Appellant contends the juvenile court erred by finding that the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) did not apply. The court did not err.
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances that permit the juvenile court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) One such circumstance is when "[t]he 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).) It is not enough, however, to simply show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) There must be a significant, positive emotional attachment between parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The benefit to the child must 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. 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.)
The parent has the burden of establishing that a statutory exception to adoption applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Although appellant visited regularly and the children were, to varying degrees, bonded with her, we conclude substantial evidence supports the juvenile court's determination that the exception to adoption did not apply.
For the exception to apply, there must be a significant, positive emotional attachment between parent and child, the termination of which would cause the child great harm. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) As Dr. Roeder explained, J.F. did have a healthy attachment to appellant, but he was able to form new attachments and would be less severely impacted by termination of parental rights than the twins. A.F. and F.F. were attached to appellant but it was not a healthy attachment. Moreover, F.F. especially needed permanence and stability in his life. F.M. had shown some attachment but would not be harmed by termination of parental rights, primarily due to his age and developmental level.
Moreover, the detriment to the children from terminating parental rights had to be "compelling" to warrant a permanent plan other than adoption. (§ 366.26, subd. (c)(1)(B).) As explained by Dr. Roeder, however, while these children may suffer some sadness and loss upon termination of their relationship with appellant, they would not suffer permanent harm. It is true there was some conflicting evidence on the issue, with Mitakys opining that the children were sad and not ready to have their relationship with appellant terminated and social worker and Dr. Roeder concluding to the contrary. However, the court resolved the conflict adversely to appellant.
In sum, although there was evidence that the children had bonded or had attachments with appellant, the juvenile court was required to weigh the bonds against the benefits they would gain in a permanent adoptive home with their siblings. The court engaged in this process, and reasonably concluded that the children's need for permanence outweighed the importance of maintaining their bonds with appellant. The court's determination is supported by the evidence.
The orders of the juvenile court are affirmed.
We concur: RAYE , P. J. DUARTE , J.
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