In re Ismael G. CA2/3

• Court: California Court of Appeal
• Decided: October 23, 2013
• Docket: B247456
• Status: Unpublished

Opinion

Filed 10/23/13 In re Ismael G. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).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.

4 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.”])

8 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

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

11 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.)

12 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.