California Court of Appeal Oct 23, 2013 No. B247456Unpublished
Filed 10/23/13 In re Ismael G. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re ISMAEL G., A Person Coming Under B247456 the Juvenile Court Law. (Los Angeles County LOS ANGELES COUNTY Super. Ct. No. CK74453) DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
Y. G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed. Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Peter Ferrera, Deputy County Counsel, for Respondent. ___________________________________________
Y. G. (mother) appeals from the dependency court’s order terminating her
parental rights with respect to her eight-year-old son, Ismael G. (Ismael). She contends
that the court erred in concluding that the “beneficial parent-child relationship
exception” to the termination of parental rights did not apply. Substantial evidence
supports the court’s determination. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. 2007-2008
When this case began in 2007, mother was a juvenile court dependent due to
maternal grandfather’s physical and sexual abuse of her and her siblings, and maternal
grandmother’s refusal to address the abuse.1 In February 2007, mother sent Ismael, who
was almost two years old, to reside with maternal grandparents despite the sustained
allegations of abuse against them in mother’s dependency case.2 On March 9, 2007,
a petition was filed alleging that Ismael was at risk of physical, emotional and sexual
abuse by maternal grandparents.3 On March 12, 2007, mother left from her foster care
placement and the Department lost contact with her.
The Department was unable to immediately remove Ismael from maternal
grandparents’ home because they apparently hid him. However, in June 2008, Ismael
was removed and placed in foster care. Mother sought custody of Ismael. In July 2008,
1 Mother was fourteen years old when she became pregnant with Ismael. 2 Ismael was born on March 4, 2005. 3 The petition was filed in San Bernardino County, and the case was later transferred to Los Angeles County.
2
the court declared Ismael a dependent of the court, and ordered reunification services
for mother.4 5 The court also ordered that there be no contact between Ismael and
maternal grandparents and aunts.
In September 2008, Ismael was placed with paternal grandmother. The
Department reported that mother was consistently late to her weekly visits and had
missed several visits. In November 2008, the Department reported that mother had
visited Ismael accompanied by maternal grandfather and aunts, and that mother had not
demonstrated any progress with court-ordered programs. The Department
recommended that family reunification services be terminated. In December 2008, the
Department reported that Ismael said mother continued to bring maternal relatives to
visits.
B. 2009
In early 2009, the Department recommended that Ismael be returned to mother
because she had complied with court orders and was receiving financial and emotional
support from maternal grandfather and aunts.6 The court ordered that Ismael be
returned to mother for a 30-day visit but ordered mother not to leave Ismael in the care
of any maternal relatives. In March 2009, the Department reported that mother
4 Father did not reunify with Ismael and does not appeal. 5 The court ordered mother to participate in a “reunification plan,” but the record does not show what programs mother was ordered to participate in. 6 It is unclear why the Department appears to support mother’s contact with maternal relatives here, while elsewhere the Department instructed mother to distance herself from them.
3
continued to “be close and dependent on” maternal grandfather and recommended
terminating mother’s reunification services. The court terminated mother’s
reunification services, and set a Welfare & Institutions Code7 section 366.26 hearing.8
Ismael was placed in the home of a prospective adoptive parent.
In September 2009, the Department reported that Ismael was content and
well-behaved in the home of his caregiver. The Department also stated that mother was
complying with her therapy and that mother and child were bonded. The court vacated
the section 366.26 hearing, reinstated reunification services, ordered mother to attend
parenting classes and individual counseling, and ordered unmonitored visits for mother.
In November 2009, the Department reported that after Ismael’s first unmonitored
visit with mother, he said he had visited with maternal relatives, had bit mother, and that
mother had taken him to a tattoo parlor where he watched her get a tattoo. Ismael also
said that he liked spending time with mother and asked if he could stay with her, but at
other times said that he did not love her. On a subsequent visit, mother returned Ismael
early because he had thrown a tantrum, biting and kicking her, and had run away from
her. In December 2009, foster mother stated that mother constantly arrived late for
visits, and that since unmonitored visits began, Ismael’s behavior had declined: he was
acting up at home and had gotten into fights with other children at school.
7 Unless otherwise stated, all statutory references are to the Welfare and Institutions Code. 8 Section 366.26 governs the termination of parental rights of children adjudged dependents of the court.
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C. 2010
In January 2010, the Department reported that Ismael said he continued to see
maternal relatives, including maternal grandfather, and that mother had abused Ismael
by “inject[ing] the child with a syringe.” The court changed mother’s visits to
monitored. In February 2010, the Department reported that mother often arrived late to
visits. Foster mother said she did not “want any problems with mother” and was no
longer interested in adopting Ismael. Ismael was placed in another home where the
foster parents expressed an interest in adopting him.
In May 2010, the Department reported that mother had stopped attending her
individual counseling sessions. In June 2010, the court terminated mother’s
reunification services and set a section 366.26 hearing. In October 2010, the
Department reported that Ismael’s present caregiver was not willing to adopt him due to
her pending divorce, and that he said he wanted to live with mother. The section 366.26
hearing was continued.
D. 2011
In April 2011, the Department reported that Ismael had a good relationship with
his caregiver but continued to express a desire to live with mother. In July 2011, the
Department reported that mother consistently visited every Saturday for four hours, and
that Ismael enjoyed those visits. However, in October 2011, the Department reported
that mother had started canceling her visits and only visited Ismael once every
3-4 weeks. Mother did not visit Ismael at all during the month of October. The court
5
repeatedly continued the section 366.26 hearing as the Department searched for an
adoptive family.
On December 28, 2011, Ismael was placed in his prospective adoptive home. On
December 30, 2011, mother visited with Ismael at a restaurant. Mother gave Ismael
clothes and the video game Call of Duty,9 brought a four-year-old girl to the visit and
told Ismael she was his sister, and said she was pregnant with another child. Ismael’s
prospective adoptive parents said he was “overwhelmed and upset” after the visit.
E. 2012
In January 2012, the Department reported that mother was agitated and verbally
aggressive towards Ismael during recent visits, and stated that frequent visits would
“undermine his security and developing stability in his prospective adoptive home.”
The Department reported that Ismael was making good progress in his prospective
adoptive family’s home and was benefiting from their “nurturing, structured and loving
approach.” The court granted the Department’s request to reduce mother’s visitation to
every other week for two hours at the Department’s office.
In April 2012, the Department reported that his prospective adoptive parents had
made exhaustive efforts to reassure Ismael of their commitment to him and that Ismael
said that he liked living with them. In June 2012, the Department reported that Ismael
was thriving in the care of his prospective adoptive parents. The Department also
reported that he eagerly anticipated contact with his mother and enjoyed a bond with
9 Call of Duty is a video game that simulates warfare.
6
her, but that the relationship seemed similar to one between a brother and his elder
sister.
The court ordered a “bonding study” with mother, prospective adoptive parents,
and Ismael. The psychiatrist who administered the study reported that Ismael said that
he wanted to live with his mother, but also said that he liked his prospective adoptive
parents. The psychiatrist found that Ismael had ambivalent and confused feelings about
mother due to her lack of commitment to him, and that he needed consistency and
permanence. The psychiatrist concluded that Ismael’s emotional attachment to mother
did not outweigh the benefits of adoption.
The two psychiatrists who provided therapy to Ismael and his prospective
adoptive parents also opined that it was “extremely important to establish a permanent
family arrangement for Ismael as soon as possible.” In October 2012, the Department
reported that Ismael was settling into his new environment and that his attachment to his
prospective adoptive parents was strengthening. The prospective adoptive parents
reported that they were prepared to continue some contact with mother, and the
Department recommended a post-adoption agreement so that Ismael could continue to
see mother. On December 6, 2012, the court terminated mother’s parental rights.10
Mother timely appealed.
10 In November 2012, the Department reported that mother’s infant daughter was detained and a petition filed alleging domestic violence between mother and her male companion.
7
CONTENTIONS
Mother contends that the court erred in terminating her parental rights because
the beneficial parent-child relationship exception applied.
DISCUSSION
We review the trial court’s ruling that the beneficial parent-child relationship
exception did not apply under the substantial evidence test.11 (In re Autumn H. (1994)
27 Cal.App.4th 567, 576-577.) “[W]e 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. [Citations.]” (Ibid.)
Section 366.26, subdivision (c)(1)(B) provides that if the juvenile court
determines that “it is likely a the child will be adopted, the court shall terminate parental
rights and order the child placed for adoption” unless “[t]he court finds a compelling
reason for determining that termination would be detrimental to the child . . . . ” Such
a reason exists if “[t]he parents have maintained regular visitation and contact with the
11 There is a split of authority concerning the standard of review in this context. The First District Court of Appeal held that the abuse of discretion standard of review applies when evaluating the beneficial parent-child relationship exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) In addition, the Sixth District Court of Appeal held that both the substantial evidence test and the abuse of discretion standard of review apply. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [holding that the substantial evidence test applies to the factual issue of whether the beneficial relationship exists, and the abuse of discretion standard of review applies to whether termination of parental rights would be detrimental to the child].) However, most courts have “routinely applied the substantial evidence test to the juvenile court’s finding under section 366.26, subdivision (c)(1)(A) [now subdivision (c)(1)(B)(i)].” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351; see also Seiser and Kumli, Cal. Juvenile Courts Practice and Procedure (2012) § 2.171[5][b][i][A] [“This is the better view.”])
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child and the child would benefit from continuing the relationship.” (§ 366.26,
subd. (c)(1)(B)(i); italics added.)
Under the first requirement of this exception, the parent must show that she
maintained regular visitation and contact with the child. Mother argues that she had
consistent weekly visits with Ismael during the four and half years after he was removed
from maternal grandparents’ home. However, mother did not attend “consistent weekly
visits” with Ismael throughout his stay in foster care: she often failed to show up for
visits and, on at least one occasion, she did not visit Ismael for an entire month. In
addition, in order for the beneficial parent-child relationship exception to apply, mother
also had to show that she satisfied the second requirement of the exception: that Ismael
would benefit from continuing the relationship.
To show that such a beneficial relationship exists, “the parent must show that
severing the natural parent-child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed.
[Citations.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) “[T]he 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., supra, 27 Cal.App.4th at p. 575.)
9
“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
adult’s attention to the child’s needs for physical care, nourishment, comfort, affection
and stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation.] . . . [¶] The exception must be
examined on a case-by-case basis, taking into account the many variables which affect
a parent/child bond. The age of the child, the portion of the child’s life spent in the
parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and
child, and the child’s particular needs are some of the variables which logically affect
a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Mother contends that she shared a significant bond with Ismael. Mother is
correct that the evidence shows that Ismael was bonded to her: Ismael often enjoyed
seeing mother, and expressed a desire to live with mother on multiple occasions during
his long stay in foster care. Ismael was shuttled through four different foster placements
before being placed with his current adoptive family, and mother was the only adult
with whom he maintained a relationship throughout his entire life. However, that the
continuation of mother’s relationship with Ismael would confer some benefit to him is
not sufficient to show that parental rights should not be terminated. The issue before us
is whether the benefit gained by Ismael from the continuation of this parent-child
relationship outweighs the well-being he would gain in a permanent home with his
adoptive family.
10
Mother cites to the four variables identified in In re Autumn H. to be considered
when looking at whether a relationship is beneficial: (1) the age of the child, (2) the
portion of the child’s life spent in the parent’s custody, (3) the positive or negative
effect of interaction between the parent and the child, and (4) the child’s particular
needs. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Mother argues that the
parent-child bond was strong here because Ismael had spent the first two years of his
life in mother’s custody. However, although Ismael spent two years with mother, he did
not live with mother during subsequent four and a half years except for a brief period in
2009 when he was released for a 30-day visit into her care.
Additional evidence establishes that mother’s contact with Ismael was not always
positive. There was evidence that mother did not appropriately parent Ismael: she was
unable to prevent him from biting her and running away from her during unmonitored
visits; she upset Ismael by failing to show up for visits or showing up late; she
repeatedly took Ismael to see maternal grandfather who had been found to be dangerous
to children; she exposed Ismael to activities that were inappropriate for his age when
she took him to a tattoo parlor and gave him a violent video game; and she physically
abused Ismael by injecting him with a syringe.
Moreover, the record does not indicate that mother and Ismael’s interactions
were particularly like those of a child with his mother. The Department found that
mother’s relationship with Ismael was like that of siblings. Moreover, mother’s contact
with Ismael was almost entirely monitored during his stay in foster care, and she did not
have any “day-to-day interaction” in which she attended to his physical needs. The
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evidence also indicates that mother did not meet Ismael’s need for consistency and
permanency. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) She repeatedly
missed visits and did not complete her court-ordered counseling sessions so that Ismael
could be reunified with her.
Furthermore, the psychiatrist who conducted a bonding study of mother, Ismael
and his adoptive parents concluded that Ismael’s emotional attachment to mother did
not outweigh the benefit of adoption. This constitutes substantial evidence that the
benefit Ismael would gain from continuing his relationship with mother did not
outweigh “the security and the sense of belonging a new family would confer,” and
therefore, that the beneficial parent-child relationship exception did not apply here.
(In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
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DISPOSITION
The order terminating mother’s parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the juvenile court's determination that the beneficial parent-child relationship exception did not apply to prevent the termination of parental rights.
Issues
Did the juvenile court err in concluding that the beneficial parent-child relationship exception to the termination of parental rights did not apply?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The psychiatrist concluded that Ismael’s emotional attachment to mother did not outweigh the benefits of adoption.”
“Substantial evidence supports the court’s determination.”
“The issue before us is whether the benefit gained by Ismael from the continuation of this parent-child relationship outweighs the well-being he would gain in a permanent home with his adoptive family.”