California Court of Appeal Feb 3, 2014 No. D064522Unpublished
Filed 2/3/14 In re Heidi M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re HEIDI M. et al., Persons Coming Under the Juvenile Court Law. D064522 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. 517056A-D) Plaintiff and Respondent,
v.
DENISE M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Denise M. appeals the juvenile court's orders terminating her parental rights to her
minor children Heidi M., Josiah M., Jeremiah M. and Y.M. (together, the minors),
pursuant to Welfare and Institutions Code section 366.26.1 Denise contends the court
erred by finding the beneficial parent-child relationship exception did not apply to
preclude termination of her parental rights. We affirm the orders.
The record in this case includes a long history of involvement by the San Diego
County Health and Human Services Agency (Agency) with Denise and her five
children.2 The need for the Agency's involvement centered primarily on domestic
violence against Denise by her children's fathers and other men, and Denise's mental
health. The Agency's first report dates back to 2004 when Denise alleged she was being
stalked by the father of her oldest child. Denise's three oldest children, Heidi, Josiah and
Jeremiah, were removed from her custody for the first time in 2008 after Denise told
police she feared she might hurt herself or them. At that time, Heidi, Josiah and Jeremiah
1 All further statutory references are to the Welfare and Institutions Code.
2 Denise's youngest child, H.N., is the subject of a separate dependency proceeding. Additionally, the fathers of the four children that are the subject of this proceeding are not parties to this appeal. 2
were four, three and 11 months old, respectively. Denise was hospitalized and the
children were placed in foster care.
During this first dependency, Denise began therapy and participated in other
services required by her case plan, including parenting and domestic violence classes.
While Heidi, Josiah and Jeremiah were out of her custody, Denise became pregnant with
her fourth child, Y.M. Denise gave birth to Y.M. in May 2009 and, based on Denise's
progress with her case plan, Y.M. remained in her care. Denise faltered periodically in
her reunification efforts, but Heidi, Josiah and Jeremiah were eventually returned to her
care and the juvenile court terminated dependency jurisdiction in April 2010.
The very next month, however, the Agency received a referral that Jeremiah had a
fractured arm without any explanation for the cause of the injury and that Denise's
boyfriend had been seen pulling Jeremiah by his injured arm at the medical clinic. Later
that month, Denise reported to police she was beaten and raped numerous times by the
same boyfriend over a four-day period in her home in the presence of the children. After
the first attack in this period, Denise did not take any action to protect herself or the
minors from the perpetrator. After the incident, the Agency provided Denise with
additional voluntary services throughout 2010 including domestic violence counseling,
parenting assistance and psychiatric care.
Despite this assistance, Denise was involved in additional incidents of domestic
violence over the next year. Then, in March 2011, Denise was hospitalized after being
physically and sexually assaulted in her home by a gang member she was involved with,
Jared J. During the incident, Jared choked Denise almost to the point of unconsciousness
3
in front of Jeremiah and Y.M. The minors told social workers they also witnessed sexual
interaction between Jared and their mother. Denise claimed Jared stalked her for a month
before the assault, threatened her and the children and had broken into the family home
multiple times. Less than two weeks before the assault, Denise called the police after
Jared threatened to hurt her and her children. After the threats, however, Denise took no
action to protect herself or her children from Jared. To the contrary, Denise told police
she was trying to work things out with Jared and admitted allowing him to stay in the
home and to keep his personal belongings there after he threatened her.
The night of the incident, Denise's neighbors called the police after hearing her
cries for help. Jared was arrested and the Agency was contacted. After an investigation,
the Agency removed the minors from Denise's care and filed a petition in the juvenile
court under section 300, subdivision (b). The petition alleged the children suffered or
were at substantial risk of harm by the failure of Denise to supervise or protect them
adequately. Specifically, the Agency alleged the minors were "exposed to violent
confrontations in the family home" between Denise and Jared, and Denise's inability to
protect the minors from ongoing and escalating violence placed them at substantial risk
of serious physical harm.
A jurisdiction and disposition hearing was held in April 2011. At the hearing, the
court sustained the allegations of the petition, assumed jurisdiction, declared each child a
dependant of the court and removed each from parental care. Jeremiah and Y.M. were
placed in a foster home together, and Heidi and Josiah were each placed in separate foster
4
homes. The court ordered liberal supervised visitation for Denise, that she undergo a
psychological evaluation and the provision of reunification services.
By the six-month review hearing, the three boys were in foster care together and
Heidi was in a separate foster placement. The Agency reported Denise was participating
in the services required by her case plan, but needed additional treatment to learn how to
stay out of dangerous relationships. The Agency recommended the children remain in
their current foster homes and the court ordered six additional months of services for
Denise. Shortly after the hearing, the court permitted Denise to begin short unsupervised
visits with the children.
A month later, however, Denise was arrested for assault with a deadly weapon
after hitting her sister in the head with a beer bottle. Denise's sister's two young children
were present when the altercation occurred. As a result, the Agency requested Denise's
visits with the minors revert to being supervised. The court granted the request. Denise
later pleaded guilty to the charges, was ordered to complete anger management classes
and a restraining order was entered against her.
In the same time frame as her arrest, Denise was kicked out of her domestic
violence program for poor attendance and regularly missed therapy. Denise's therapist
reported that when Denise did make her sessions, they involved crisis intervention and
not developing a healthy environment for her children. She also lost her job and was
unable to find stable housing. The Agency enrolled Denise in a family unification
program to expedite public assistance housing, but Denise dropped out of the program so
5
she could be at the hospital with her ex-boyfriend, Angel N., another gang member who
was recovering from injuries inflicted by a rival gang.
Before the 12-month review hearing, Denise reported she was pregnant with H.N.,
who was Angel's child, and that Angel had beaten and raped her when she told him she
was pregnant. She also told police and the Agency that Angel and two of her other ex-
boyfriends, all three described by her as known gang members, were plotting against her
and she feared for her life. Although no longer in Denise's care, Heidi told her therapist
she was scared of her mother and alleged Denise had abused her and her brothers.
In its report for the 12-month review hearing, the Agency noted that despite being
provided with an array of services, Denise was unable to take the steps necessary to
regain custody of her children. In particular, she continued her pattern of entering
relationships with dangerous and violent men, including with men that had assaulted or
raped her in the past. The report listed eight incidents of domestic violence in which a
police report had been filed. The Agency opined there was not a substantial probability
of the minors being returned to Denise by the 18-month review hearing and
recommended terminating services. The court agreed, finding that returning the children
to Denise's custody would be detrimental and set a section 366.26 selection and
implementation hearing for October 2012. Denise filed an unsuccessful writ petition
challenging the court's findings and orders.
In October 2012, Heidi was living with a foster mother and her three brothers
were living with a separate foster family. That family wanted to adopt the three boys, but
did not have enough room in their home for Heidi. Although they had a good
6
relationship, Heidi's foster mother did not want to adopt Heidi. The selection and
implementation hearing was continued so the Agency could evaluate placement options
to keep the siblings together. In late 2012, the Agency found a couple who wanted to
adopt all four children.
By the summer of 2013, the minors were living with the prospective adoptive
parents and were doing well. In addition, H.N., born the prior fall, was also placed with
the family.3 Denise meanwhile filed two section 388 petitions for modification to have
the children returned to her custody. In the first, filed in February, Denise alleged her
ability to parent H.N., her completion of anger management and domestic violence
programs and her participation in a parenting course constituted changed circumstances.
The second petition, filed in July after H.N. was removed from her care, cited a
restraining order Denise obtained against Angel and that she moved into a women's
program as changed circumstances that supported returning the children to her custody.
The juvenile court denied both petitions.
Throughout the dependency proceeding, Denise maintained regular visitation and
phone contact with the minors. The visits were for the most part appropriate and positive
and the minors were generally happy to see Denise. None of the children, however, were
upset when the visits were over. The older three children wanted continued visitation
with Denise, but also wanted to stay in their new homes. Heidi told the Agency's social
worker she loved her mother, but did not want to live with her and did not feel safe with
3 H.N. was taken into protective custody in April 2013 after Denise was involved in another serious incident of domestic violence. 7
her. In one of the Agency's reports for the 366.26 hearing, the social worker described
Denise's relationship with her younger children as that of a friendly relative, not a parent.
In initial and updated reports prepared for the selection and implementation
hearing, the Agency recommended the termination of Denise's parental rights. By the
time of the hearing in July and August 2013, the children had been out of Denise's care
for almost two and half years. Between their two dependencies, Heidi had been in 11
placements, Josiah and Jeremiah in eight and Y.M. in three. At the hearing, the court
received the Agency's reports into evidence and heard testimony from two social workers
involved in the case and Denise. The social workers reiterated the Agency's
recommendation that Denise's parental rights be terminated so the children could be
adopted and testified all four children were generally and specifically adoptable. The
current social worker assigned to the family also testified the prospective adoptive
parents were committed to adopting the children and had an approved home study.
After consideration of evidence and the arguments of counsel, the juvenile court
found the children were generally and specifically adoptable and terminated Denise's
parental rights. The court recognized both Denise's commitment to and love for her
children and the children's love for Denise, but concluded Denise had not shown the
beneficial parent-child relationship exception precluded terminating her parental rights.
DISCUSSION
Denise contends there was insufficient evidence to support the juvenile court's
finding the beneficial parent-child relationship exception to adoption did not apply. She
8
asserts she maintained regular visitation and contact with the minors, had a substantial
and positive emotional attachment with them and occupied a parental role in their lives.
A
After reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child, including
the child's interest in a stable, permanent placement that allows the caregiver to make a
full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th
529, 534.) At the selection and implementation hearing, the court has three options: (1)
terminate parental rights and order adoption as the permanent plan; (2) appoint a legal
guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, is the permanent plan preferred by the Legislature."
(In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be
returned to his or her parent and is likely to be adopted if parental rights are terminated, it
must select adoption as the permanent plan unless it finds termination of parental rights
would be detrimental to the child under one of the specified statutory exceptions.
(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
"The parent has the burden of establishing the existence of any circumstance that
constitutes an exception to termination of parental rights." (In re T.S. (2009) 175
Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "after
the court has repeatedly found the parent unable to meet the child's needs, it is only in an
extraordinary case that preservation of the parent's rights will prevail over the
9
Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1350.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if termination of parental rights would be detrimental to the child because
"[t]he parents have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship." Courts have interpreted the phrase
" 'benefit from continuing the . . . relationship' " to refer to a parent-child relationship 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 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., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J.
(2009) 175 Cal.App.4th 922, 936.)
To meet the burden of proof for this statutory exception, the parent must show
more than frequent and loving contact, an emotional bond with the child or pleasant
visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she
occupies a parental role in the child's life, resulting in a significant, positive emotional
attachment from child to parent that if severed would result in harm to the child. (Ibid.;
In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The exception does not require
10
proof the child has a " 'primary attachment' " to the parent or the parent has maintained
day-to-day contact with the child. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70
Cal.App.4th 38, 51.)
We review an order terminating parental rights for substantial evidence. (In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial
evidence to support the findings of the juvenile court, we uphold those findings. We do
not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or
weigh the evidence. Instead, we draw all reasonable inferences in support of the
findings, view the record favorably to the juvenile court's order and affirm the order even
if there is substantial evidence supporting a contrary finding. (In re Casey D., supra, 70
Cal.App.4th at pp. 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent
has the burden of showing there is no evidence of a sufficiently substantial nature to
support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Denise argues that the potential harm caused by the termination of her parental
rights outweighed the potential benefits of adoption for these four children. The juvenile
court's finding to the contrary, however, was supported by substantial evidence.
Although the minors enjoyed Denise's company during visits and showed her
affection, they did not rely on Denise to have their needs met. The minors separated
easily from Denise after visits and there was no evidence that her absence from their
daily lives affected them adversely. Heidi stated she loves her mother, but also that she
11
"does not feel safe with her and is happy to be moving somewhere she can be safe." Both
Heidi and Josiah were described by one social worker as having an anxious, unhealthy
attachment to Denise during their visits. The social worker described Jeremiah's and
Y.M.'s relationship with Denise during their visit as a friendly visitor. She noted they did
not need Denise's attention or depend on her to have their needs met.4
These facts amply supported the juvenile court's finding the children did not have
a " 'significant, positive, emotional attachment' " to Denise such that terminating parental
rights would result in great harm to them. (In re Jason J., supra, 175 Cal.App.4th at
p. 936; In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Denise points to no evidence
showing the minors would be harmed by severing her rights. "A biological parent who
has failed to reunify with an adoptable child may not derail an adoption merely by
showing the child would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454,
466.)
Further, as described, despite being provided with considerable resources to help
her change her behavior, Denise continued to expose the minors to considerable violence
and to place the children in harm's way. Denise's oldest child, Heidi, repeatedly
4 Two Agency social workers who worked with the family testified at the selection and implementation hearing. Denise argues the report and testimony of one, Shari Crall, should be discounted because Crall only observed one visit between Denise and the minors. Crall's recommendation, however, was no different from that of the other social worker, Peter Ellew, who had observed 10 to 12 visits. Crall was assigned to the family while the selection and implementation hearing was pending when Ellew left the Agency. Like Crall, Ellew's report and testimony was that there was not a beneficial relationship between Denise and the minors that outweighed the legislated preference for adoption. 12
expressed her fear of being returned to her mother's care and desire to remain with her
prospective adoptive parents. At the time of the selection and implementation hearing,
the children were doing well in the home of their caregivers who were committed to
adopting them and who were meeting the children's medical, developmental and
emotional needs. The social workers firmly believed the minors needed a safe, stable and
permanent home with parents who could meet their needs, and they should not have to
wait for permanency.
The court was entitled to accept the social worker's opinion that the benefits of
adoption for the minors outweighed the benefits of maintaining a relationship with
Denise. (In re Justice P. (2004) 123 Cal.App.4th 181, 191 [child's interest in stable and
permanent home is paramount once a parent's interest in reunification is no longer at
issue].) The court recognized positive aspects to Denise's relationship with the minors,
but concluded the stability adoption would provide outweighed any benefit provided by
that relationship. We cannot reweigh the evidence or substitute our judgment for that of
the juvenile court. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The children, whose
needs could not be met by Denise, deserve to have their custody status promptly resolved
and their placement made permanent and secure. Substantial evidence supported the
court's finding the beneficial parent-child relationship exception to adoption did not
apply.
DISPOSITION
The orders are affirmed.
13
O'ROURKE, J.
WE CONCUR:
MCDONALD, Acting P. J.
MCINTYRE, J.
14
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not err in terminating parental rights because the mother failed to meet her burden of proving that the beneficial parent-child relationship exception applied to preclude adoption.
Issues
Did the juvenile court err in finding that the beneficial parent-child relationship exception to adoption did not apply?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The parent has the burden of establishing the existence of any circumstance that constitutes an exception to termination of parental rights.”
“To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits.”
“Substantial evidence supported the court's finding the beneficial parent-child relationship exception to adoption did not apply.”