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In Re Josiah H., A Person Coming Under the Juvenile Court Law. v. Christina H

February 26, 2013


(Super. Ct. No. JD231479)

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

In re Josiah H. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Christina H., appeals from the juvenile court order terminating her parental rights to 22-month-old Josiah H. (the minor). She contends the trial court erred in finding that the beneficial parental relationship exception to adoption did not apply. We shall affirm.


Two days after he was born in April 2011, the minor was taken into protective custody based on allegations mother had a developmental disability that impaired her ability to adequately protect and care for the minor and that her parental rights to her four other children had previously been terminated. The minor was placed in a foster home with two of his half siblings. He was declared a dependent of the juvenile court and reunification services were ordered. As part of the effort to provide reunification services to mother, a psychological evaluation was performed by psychologist Sidney Nelson, Ph.D. Dr. Nelson noted mother's intellectual capabilities, abstract reasoning, conceptual thinking, common sense reasoning, and social judgment were substantially impaired; she functioned within the mild range of mental retardation. These impairments limited mother's ability to learn, retain and utilize new information provided in counseling or parenting classes. Mother's impairments were a significant, chronic and long-term condition, not expected to change with the provision of services, and not conducive to providing a safe home for a young child. Accordingly, Nelson concluded mother would not be able to benefit sufficiently from reunification services to permit the minor to return safely to her custody.

Despite Dr. Nelson's reservations, mother participated in some services and regularly visited with the minor twice a week. By January 2012, mother had made some progress in services; however, she had not completed her domestic violence classes and had not completed individual counseling, becoming threatening to the therapist and refusing further counseling. She completed the parenting class, but upon testing, with significant assistance from the social worker, she scored only 30 percent on the parent education survey. In parenting coaching with an infant, she was incapable of responding to the baby's cues, could not learn how much formula was necessary to prepare a bottle, and forgot to secure the infant on a changing table before walking away. The social worker concluded mother could not benefit from additional parenting coaching. The juvenile court found mother had not made sufficient progress in reunification and it was unlikely the minor could be returned to her within the six-month statutory time frame. Accordingly, reunification services were terminated and the matter was set for a Welfare and Institutions Code section 366.26 hearing.*fn1

Originally, mother had visits with the minor scheduled twice a week for one hour. Between April and November 2011, she missed six visits. Upon termination of reunification services, mother's visits were reduced to twice a month in February 2012 and then to once a month in May 2012. Mother's visits were sporadic during this period. She frequently failed to confirm or follow through with scheduled visits. When she did visit, the minor would look at her and play games. He generally reacted happily when he saw mother.

The minor was doing well, although he was slow meeting developmental milestones. He had some mild developmental delays of his feeding abilities and poor endurance for eating, as well as physical developmental delays. He was receiving weekly therapy to address these delays, which required significant familial involvement. He remained placed in the foster home that had successfully adopted two of his older siblings and the foster parents were committed to adopting him. Emotionally and behaviorally, the minor was developing appropriately. He preferred his foster parents to other adults and was developing healthy emotional connections to them, their children, and their extended circle of family and friends. His foster parents provided for his daily needs and primary emotional connection.

At the contested section 366.26 hearing, mother objected to the termination of her parental rights. She claimed she had maintained contact with the minor and it would be in his best interest not to terminate her parental rights.

The court found by clear and convincing evidence the minor was adoptable. The court noted although there were some physical problems, they were not of such a scope so as to impede his adoptability. The court found termination of parental rights would not be detrimental to the minor. Accordingly, the beneficial relationship exception to adoption did not apply. Parental rights were terminated.


Adoption must be selected as the permanent plan for an adoptable child and parental rights must be terminated unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated exception to adoption. (§ 366.26, subd. (c)(1)(B).) One such exception to termination of parental rights is if "[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); In re Celine R. (2003) 31 ...

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