IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
June 24, 2011
IN RE TOMMY G., A PERSON COMING UNDER THE JUVENILE COURT LAW. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
ANN G., DEFENDANT AND APPELLANT.
(Super. Ct. No. PDP20080139)
The opinion of the court was delivered by: Raye , P. J.
In re Tommy G.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother Ann G. appeals from the juvenile court's order terminating parental rights to the minor, Tommy G., aged eight when the current of many related scenarios began. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Mother claims the parental bond relationship exception to adoption applied and that the adoption assessment report was inadequate because the report failed to evaluate the sibling relationship. We disagree with these assertions and affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Between November 1999 and November 2008 the El Dorado County Department of Human Services (Department) received numerous referrals regarding mother's care of Tommy. Mother was diagnosed as a paranoid schizophrenic who had been hospitalized on 14 different occasions. Mental health services was "very involved" with her, trying to keep her from decompensating. The reports included allegations of general neglect, caretaker absence, and verbal, emotional, and physical abuse of both Tommy and mother by father. The physical abuse included father hitting Tommy, using a cutting board as a paddle. The reports indicated Tommy and mother were hitting each other; Tommy, being physically assaultive with mother, had pulled knives on her and hit her with a stick. He was out of control and mother could not effectively parent him.
In October 2008 Tommy and his mother got into an argument. She apparently left him unsupervised in her car and Tommy started walking home from church. Mother let him because she thought it would give him time to "cool down." Tommy was stopped near Highway 50 by construction workers, who then called the police. He was accidentally walking in the opposite direction of his home.
Ultimately, in November 2008, when Tommy was nine years old, he was taken into protective custody due to mother's mental health problems and her inability to protect him from father's abuse. Tommy was detained and returned home pending disposition. He was removed again in December 2008, when it was revealed that mother believed "things were 'resolved'" between Tommy and father and allowed father to remain in the home with Tommy in violation of a standing court order.
A section 300 petition was filed alleging that mother had failed to provide adequate care and supervision of Tommy, and she had failed to protect him from father's abuse.
Mother and father were provided 12 months of reunification services. Father did not participate in services and was satisfied with visiting Tommy. Mother, on the other hand, participated fully in her case plan, including domestic violence classes and mental health counseling. Visits between mother and Tommy generally went well. Tommy was excited about the visits and anticipated them. Visits included numerous overnight visits, including up to five nights over holidays. On one occasion, there was a concern regarding Tommy's older brother and his behavior toward Tommy on that particular visit. According to a status review report, Tommy said that his brother can often "run the house." Tommy was visibly sad and depressed about an incident that occurred between them during the visit. Tommy did not offer any additional details about the incident. Mother had demonstrated effective parenting skills during these extended visits and continued to utilize the services available to her. Accordingly, the Department recommended that Tommy be returned to mother's custody. On January 22, 2010, the court found mother had made substantial progress in her plan, and Tommy was placed in mother's care and custody. Father's reunification services were terminated.
Within a week of Tommy's return home, a supplemental petition was filed under section 387. The petition alleged the court's earlier order placing Tommy in mother's custody was not effective in protecting him, as mother had left Tommy alone in her car from 11:00 p.m. to 7:00 a.m. while she was working because Tommy had refused to go into the workplace with her. Tommy was placed in protective custody pending the hearing.
The Department noted that mother loved Tommy very much and wanted the best for him. It also noted she had worked very hard to have Tommy returned to her. However, the Department found that this incident demonstrated mother had not made enough progress in her therapy or 12 months of services to be able to capably or appropriately respond to risks that might threaten Tommy's safety. The threat seemed particularly grave, given the past history of Tommy leaving mother's vehicle when left unattended. The Department found the incident demonstrative of her poor decision making and inability to make sound parenting judgments, both of which put Tommy in substantial danger. Tommy was detained and placed in foster care. Following a contested jurisdictional hearing, the court found the allegations of the petition true and sustained the petition.
Tommy did well in his foster home and bonded very closely with his foster brothers. Tommy and mother visited regularly and both reported the visits went well. However, Tommy's foster parents reported Tommy would return from the visits visibly upset by conversations mother had with Tommy about the court process. Among other things, she would tell him that after the next hearing, he would be returning home. They also reported that Tommy's behavior was notably affected for a day or two after visits with mother. Mother had been provided 12 months of reunification services, and the Department concluded there was not a substantial probability that Tommy would be returned to mother's custody if additional services were offered. Accordingly, the Department recommended that reunification services be terminated. Following a contested hearing, the court followed the Department's recommendation.
The matter was set for a section 366.26 hearing. In preparation for the hearing, the Department prepared a report that included an adoption assessment and a relationship study conducted by Dr. Eugene Roeder. Dr. Roeder concluded Tommy had "benefitted greatly from the more healthy developmental environments to which he has been exposed over the last two years." He also concluded that Tommy "would continue to derive a good deal of benefit from the stability and consistency of a permanent plan, such as a long term guardianship or adoption. The relationship study results indicate it would be in his best interest, if possible, to retain the relationship between Tommy and his mother, as he does gain benefit from the contact and the visits with her are not harmful to him. At the same time, the evaluation results indicate it would not be detrimental to Tommy if his mother's parental rights were terminated and he had no further contact with her, as . . . it would not cause him permanent damage. Clearly, he would prefer to maintain this contact, and this would be better for him, if this could be maintained in a positive way . . . . The reunification study results indicate he has a good prognosis for future success whether or not he continues to have ongoing contact with his mother, and his future remains bright." Dr. Roeder noted that Tommy became very emotional when the subject of adoption was broached, and expressed his wish that services for mother continue. When asked what his three wishes were, Tommy cried heavily after expressing his desire to be returned to mother. Tommy told his foster mother he had "aced" the bonding study because he and mother had practiced for it.
Tommy continued to do well in his foster home. He was doing well in school and working hard. In therapy, he was not particularly open, but was nonetheless meeting his therapeutic goals. In joint therapy sessions with mother, discussing a permanent separation between them was painful and they resisted speaking of that possibility. Tommy's foster parents were committed to adopting him. Tommy's first choice was to live with his mother. However, if that was not an option, he was comfortable being adopted by his foster parents.
Prior to the permanency planning hearing, the Department sought to have mother's visitation schedule reduced. Although Tommy continued to look forward to visits with his mother and brother, when he returned to his foster home, he was depressed, acted out, and did not perform as well in school. The court granted the Department's request.
A contested section 366.26 hearing was held on November 16, 2010. Dr. Roeder testified and confirmed the conclusion set forth in his report that Tommy would benefit from continued contact with mother, as long as that contact did not preclude him from being in a stable, permanent environment. He further confirmed that termination of parental rights would not be detrimental to Tommy, despite the benefit Tommy could get from continued contact with mother. It was also revealed at the section 366.26 hearing that father was "staying with" mother. Dr. Roeder believed this would have a negative impact on mother's relationship with Tommy.
The court found Tommy was adoptable and found that mother had not met her burden to establish the parental bond relationship exception to adoption.
Mother first contends she and Tommy had a "beneficial parent/child relationship warranting preservation." Section 366.26, subdivision (c)(1)(B)(i) provides an exception to termination of parental rights if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Mother contends she met the first prong of the exception in that she maintained regular visitation and contact with Tommy. There is no doubt she did. She also contends she established that she and her son shared a beneficial parent/child relationship such that termination would be detrimental to Tommy. It is here that mother did not satisfy her burden.
A beneficial relationship is one that "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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of a beneficial relationship is determined by considering a number of factors, including the age of the child, the amount of time the child spent in the parent's custody, the positive or negative effect of interaction between the parent and the child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) However, neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation of some benefit from continued parental contact (In re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to establish this exception. The parent has the burden of establishing this exception. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.)
We review the juvenile court's order under the traditional substantial evidence standard. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) Under that standard, mother's burden is not just to show the record could support a conclusion that her relationship with Tommy was sufficiently positive that severance of their bond would "greatly harm" Tommy, but rather she must show that there is no substantial evidence supporting the contrary finding made by the juvenile court. (In re Angelia P. (1981) 28 Cal.3d 908, 924.)
There is no question here that there is a strong emotional bond between Tommy and mother. He lived most of his life with her. He was not taken into protective custody until he was nine years old. He was in foster care for approximately two years. During that time, he had significant regular and consistent contact with mother. This visitation included overnight visits of up to five days over school breaks. Tommy wanted to return to live with mother, cried heavily when expressing that desire, and was extremely emotional in therapeutic discussions about the possibility of being permanently separated from mother. Dr. Roeder opined that it would be in Tommy's best interest to maintain contact with mother, as long as that contact did not preclude him from being in a stable, permanent environment. However, there was also evidence that the benefit of this continued relationship did not outweigh the benefit to Tommy of the permanence and stability to be found through adoption.
Tommy had benefitted from the healthier environments he lived in when out of mother's custody. Dr. Roeder found Tommy would continue to benefit from the stability and consistency of a permanent plan. During visits, mother continued to have conversations with Tommy about the proceedings, conversations which were extremely upsetting to him. Tommy's behavior was negatively impacted for days after visits with mother. He was depressed, acted out, and did not perform as well in school. There was evidence mother had coached Tommy on how to behave and respond during the bonding study. Dr. Roeder concluded it would not be detrimental to Tommy if parental rights were terminated and would not cause him permanent damage. At the time of the permanency planning hearing, mother was again living with father, a man who had physically abused Tommy and from whom mother had been unable to protect Tommy. Father's re-entry into the home would negatively impact mother and Tommy's relationship. Based on the record in this case, there was substantial evidence supporting the determination that the parental bond exception to adoption did not apply.
Mother next contends there was not "substantial evidence regarding the sibling exception to adoption in that the assessment report failed to evaluate the amount and nature of contact between the minor and his sibling." Mother appears to be conflating at least two arguments into one, a complaint about the adequacy of the adoption assessment and a claim that the sibling relationship exception to adoption applied. Neither argument is persuasive.
As to the adequacy of the adoption assessment, the requirement that an assessment be prepared containing certain information is an evidentiary matter. As such, mother's failure to object to the sufficiency of the assessment in the trial court has forfeited this issue on appeal. (In re A.A. (2008) 167 Cal.App.4th 1292, 1316-1317; In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
The sufficiency of the evidence supporting a finding of adoptability is not forfeitable, as it is the Department's burden to establish a dependent child's adoptability. (See In re Chantal S. (1996) 13 Cal.4th 196, 210.) Perhaps knowing that the issue of the adequacy of the adoption assessment would be forfeited, mother attempts to frame the issue as one of the sufficiency of the evidence of adoptability. As framed by mother, the issue before us is not whether there is a factual basis for the court's finding that the minor was likely to be adopted under section 366.26, subdivision (c)(1), but whether there is a basis for the court's implied finding that the exception to the termination of parental rights, based on interference with a sibling relationship under subdivision (c)(1)(B)(v), does not apply. The problem with framing the argument this way is that the sibling relationship exception is an exception to the legislative preference for adoption. It is not a way of finding a minor is not adoptable. And, unlike the issue of adoptability, it was mother's burden to establish this exception, not the Department's. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Because it was mother's burden to establish the exception, to the extent there is not sufficient evidence on the issue of the sibling relationship, that is mother's failure. The exception was raised in only the most perfunctory manner at the trial level, and mother put forward no evidence on the point. If mother believed the assessment report created a false impression about or omitted material information bearing on the sibling exception, she had ample opportunity to correct the record. She could have cross-examined the author of the report about the missing information. She could have testified on the issue herself or could have called her own witnesses to establish that the sibling exception might apply. She did none of this. In the absence of any evidence in the record that the sibling exception might apply, we decline to hold that the failure of the assessment report to delve more thoroughly into the subject is such an egregious shortcoming that it casts doubt on the court's adoptability determination. (In re Valerie W. (2008) 162 Cal.App.4th 1, 14.)
Accordingly, there was no evidence to support a finding that the sibling relationship exception to adoption applied.
The order of the juvenile court is affirmed.
We concur: NICHOLSON ,J. HOCH , J.