IN RE: M.B. et al.

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Court of Appeal, Second District, California.

IN RE: M.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. GRACIE J. et al., Defendants and Appellants.

B220702

Decided: June 25, 2010

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Gracie J. Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Anthony B. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Gracie J. (Mother) and Anthony B. (Father) appeal from an October 29, 2009 order terminating their parental rights to three of their children:  M.B. (born in 1999), P.B. (born in 2000), and L.B. (born in 2002).   We affirm the order because substantial evidence supports the finding that the children were adoptable and that the beneficial relationship exception to termination of parental rights under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply.1

BACKGROUND

Father, who has an extensive criminal history, was jailed in December 2005 for engaging in domestic violence against Mother in the children's presence.   After Mother tested positive for cocaine in March 2006, the children were detained by the Los Angeles County Department of Children and Family Services (DCFS).

P.B. told DCFS that Father had hit him in his stomach.   Mother told DCFS that she had been diagnosed as schizophrenic and was taking medication for her condition.   Mother also told DCFS that Father had problems with alcohol in the past and they would fight when Father drank alcohol.   According to the maternal grandmother, Father would beat up Mother, who had bruises on her body.   The maternal grandmother also saw Mother under the influence of drugs or alcohol many times.   For many years before the March 2006 detention, L.B. lived with the maternal grandmother, with whom she had a parental bond.   M.B. and P.B. often lived with the maternal grandmother but sometimes lived with Mother.

The children were initially placed with the maternal grandmother, but over the course of the next three and one-half years the children were placed in many different foster homes.   In mid-2008, M.B. and L.B. were placed with Sylvia J., their prospective adoptive parent;  in March 2009, P.B. was also placed for adoption with Sylvia J.

In June 2006, Mother waived her rights, and the juvenile court sustained an amended petition against Mother finding that the children were dependents of the court under section 300, subdivisions (a) (risk of physical harm) and (b) (failure to protect), based on Mother's failure to protect P.B. from Father's inappropriate discipline of P.B. by hitting P.B. on the chest, Mother's exposure of the children to domestic violence, Mother's mental and emotional problems, and Mother's unresolved history of substance abuse.   M.B. and L.B. were also declared dependents under section 300, subdivision (j) (abuse of sibling), based on Father's abuse of P.B.

In July 2006, Father waived his rights, and an amended petition was sustained against him under section 300, subdivisions (a), (b), and (j), based on his abuse of P.B. and his domestic violence against Mother in the presence of the children.

The parents were afforded family reunification services and monitored visits.   Mother was ordered to attend drug rehabilitation with random testing, parenting, and individual counseling, including domestic violence counseling.   Upon his release from custody, Father was ordered to attend a 52-week program for domestic violence and anger management counseling, parent education, and a DCFS drug testing program with random testing.   Father also was ordered to participate in an Alcoholics Anonymous or a Narcotics Anonymous program three times per week with a sponsor.

In August 2006, the maternal grandmother asked that M.B. and P.B. be removed from her care because she had five of Mother's other children in her care and she was overwhelmed by M.B.'s and P.B.'s aggressive behavior.   M.B. and P.B. were then placed in the same foster home.

Father was released from custody in September 2006, but by November 2006 he was back in custody after being arrested on a felony charge of possession of a deadly weapon.   Father was released from custody on December 30, 2006, but was incarcerated again from January 19, 2007, to January 31, 2007.   Father was not able to enroll in any services until February 2007.

In December 2006, DCFS reported that Mother had recently been hospitalized twice for attempting suicide.   Mother told DCFS that she was mentally and physically unable to care for her children and that she was even unable to take care of herself on a daily basis.   Mother told DCFS that she would no longer participate in family reunification services.   By December 2006, Mother had had only a few visits with M.B. and P.B. Father had visited L.B. several times and M.B. and P.B. only once.   P.B. and L.B. were in therapy for aggressive behavior problems.

In December 2006, the juvenile court terminated Mother's family reunification services.   Also in December 2006, M.B. and P.B. were placed with their paternal aunt, but two months later they were removed and placed with the maternal grandmother again.

According to a July 2007 status review report, M.B. and P.B. were diagnosed with attention deficit hyperactive disorder (ADHD) and were prescribed medication.   They were attending therapy one day a week.   Father visited the three children once a month.   Father tested positive for alcohol in April, May, and June 2007, and enrolled in a substance abuse program in May 2007.   Father also was attending a 52-week domestic violence program.   L.B. told DCFS that she did not want to return to her parents' home.

In August 2007, P.B. was removed from the maternal grandmother's home and placed in a foster home because of his inappropriate sexual behavior.   In September 2007, the maternal grandmother was no longer able to cope with M.B.'s behavior and her needs, so M.B. was removed from the maternal grandmother's home and placed in a foster home separate from P.B. The parents were living together in August 2007 when Father tested positive for marijuana.

In September 2007, L.B. was removed from the maternal grandmother's home after she hit L.B. with a belt when she misbehaved.   By September 2007, all three children were in different foster homes.

In August 2007, Mother enrolled in a dual diagnosis program, individual therapy, and an anger management program.   Because Mother's psychotropic medication made her drowsy, Mother received in-home support services for help with housekeeping and meals.   Mother successfully completed a parenting program in September 2008 and a dual diagnosis program in October 2008.

Meanwhile, in February 2008, Mother gave birth to her seventh child (Father's fourth child with Mother), Z.B. Also in February 2008, L.B. and P.B. were placed together with a paternal aunt.   M.B. was placed with a paternal cousin, and upon Z.B.'s release from the hospital, he also was placed with the paternal cousin.

P.B. and L.B. were removed from the paternal aunt's home and placed in separate foster homes in April 2008 after the aunt hit the children with a belt.   By March 2008, Father had completed an anger management program and parenting classes, but in May 2008 he tested positive for alcohol and he and Mother argued during a visit with the children at the park.   As the parents were living together, the juvenile court ordered them to attend couples counseling in June 2008.

In May 2008, L.B. was placed with Sylvia J., the children's prospective adoptive parent.   In July 2008, Mother had a violent confrontation with some paternal relatives and Mother admitted to DCFS that Z.B. was actually living with her and Father, in violation of the court's order that had placed Z.B. with the paternal cousin.   Also in violation of the court's order placing M.B. with the paternal cousin, M.B. was actually living with her parents on weekends and when school was not in session.   Mother often allowed M.B. to care for Z.B., and DCFS discovered that M.B. was used to caring for the baby and was “parentified.”   M.B. told DCFS that when she was living with Mother, Mother would give her Nyquil every night to help M.B. sleep and to make her behave.   In July 2008, M.B. was placed with Sylvia J., where she remains.

In July 2008, Father's reunification services were terminated.   Father had monitored visits with M.B. and L.B. twice a month and with P.B. every Sunday.   P.B.'s foster parent told DCFS that the parents gave P.B. false hope of returning home and P.B. would act out after parental visits.   Father was intoxicated at a sibling visit in September 2008, when he and Mother argued.   Father also sounded intoxicated to P.B.'s foster parent during a telephone call in October 2008, but when questioned by the foster parent, Father denied drinking and hung up the telephone.   Sylvia J. asked Mother if she wanted to have additional monitored visits with her daughters M.B. and L.B. during the week.   Mother declined, but Mother telephoned her daughters two or three times each week.

In November 2008, L.B. told DCFS that she wanted to be adopted by Sylvia J. M.B. reported that she also wanted to be adopted by Sylvia J. P.B. was cold to his parents during a visit in October 2008 and he had behavior problems after the visit.   In December 2008, P.B. was suspended from school for two days for punching two boys in the stomach.   All three children were attending individual counseling and were working below their grade level in school.   Both M.B. and P.B. also had behavioral problems at school.   Although both P.B.'s foster family and Sylvia J. were willing to adopt all three children as a sibling group, DCFS had concerns about placing P.B. with his sisters because of his violent and aggressive behavior.

In November 2008, Father was arrested for public intoxication, and DCFS discovered that Father had missed all of his drug tests from July through October 2008.   Although DCFS returned Z.B. to Mother's custody in November 2008 on condition that Father not live with Mother, Mother called DCFS in February 2009 to remove Z.B. from her custody because Mother was afraid of Father, who was intoxicated and had hit Mother.   Z.B. was placed with Sylvia J. Mother did not visit M.B., L.B., and P.B. from November 13, 2008, to February 21, 2009, but she telephoned them two or three times per week.

On February 19, 2009, Mother was granted a two-hour unmonitored visit with the children on February 21, and if the visit went well she would be entitled to another unmonitored visit on February 28.   Because Father was ordered not to attend the visits at the same time as Mother and he appeared at Mother's February 28, 2009 visit, the juvenile court ordered that Mother's weekly visits were to return to monitored visits of three hours each.   From March to June 2009, Mother visited only for 20 to 40 minutes each visit and paid more attention to Z.B. than to the older children during her visits.   During the June 2009 visit, Mother had an inappropriate conversation with M.B. about M.B. “having another father.”   Mother also made hurtful remarks to P.B., telling him that he was “acting like a girl” and to “ ‘stop acting like a sissy’ ” or a “ ‘punk.’ ”

Father was arrested in March 2009 for vandalism and a parole violation and did not have any visits with his children until his release from custody in July 2009.

In March 2009, P.B. was placed with Sylvia J., where he remains.   DCFS stated in a July 9, 2009 status review report that all three children had a strong attachment to Sylvia J. and called her “ ‘mom.’ ”   L.B. was diagnosed with ADHD and was prescribed medication.   On July 6, 2009, the juvenile court ordered that Mother was to have weekly two-hour unmonitored visits as well as monitored visits as arranged by Sylvia J.;   Father was entitled to weekly visits for three hours.

Mother visited the children twice in July 2009, but for one visit, which lasted only 45 minutes, the children did not get out of Sylvia J.'s car.   Mother visited the children once in August, and twice each month in September and October 2009, for about 30 minutes each visit.   Mother did not telephone the children from July through September 2009.

Although Father visited the children for about 20 minutes to one hour every Saturday from July through October 2009, Sylvia J. reported to DCFS that only M.B. appears to be close to him;  P.B. was distant with his Father and L.B. did not really know him.

Sylvia J.'s home study was approved in August 2009.   All three children stated that they wanted to be adopted by Sylvia J. If adopted by Sylvia J., she would allow the children contact with Mother and Father.   A social worker who interviewed the children in late September 2009 reported that M.B. said that she was “not sad that she has not seen her mother because she knows she is sick.”   M.B. also said that she likes the visits with Father, but did not know if he will take care of her.   M.B. said that she knows that her parents will continue to fight with each other.   P.B. stated that he was not upset that he had not seen Mother because he had visited with Father.   P.B. also said that if he lived with Father, Mother “would still come around and ․ there would be fighting.”

After a hearing on October 29, 2009, the juvenile court found by clear and convincing evidence that the children were adoptable and terminated parental rights.   The court found that there was insufficient evidence to support the exception to termination of parental rights under section 366.26, subdivision (c)(1)(B)(i).

Mother and Father appeal from the order terminating their parental rights and join in each other's briefs.   In Father's brief, he contends that there is insufficient evidence to support the juvenile court's adoptability finding.   In Mother's brief, she challenges the sufficiency of the evidence supporting the court's refusal to find the beneficial relationship exception with respect to M.B. and P.B. The parents' briefs make no argument applying the beneficial relationship exception to L.B., so we need not discuss the nature of her relationship with her parents.

DISCUSSION

A. Adoptability

Noting the children's multiple placements, their hyperactive behavior and diagnoses of ADHD, for which they were prescribed psychotropic medication, and the behavioral problems of M.B. and P.B., Father maintains that the evidence was insufficient to support the juvenile court's adoptability finding.   We disagree.

In reviewing the sufficiency of the evidence, we resolve all evidentiary conflicts and draw all reasonable inferences in favor of the order.  (In re I.W. (2009) 180 Cal.App.4th 1517 (I.W.).)  “In making the determination of adoptability, the juvenile court ‘must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family.’  [Citation.]  ‘A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.’  [Citation.]  ‘If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home.  [Citation.]”  (I.W., at p. 1526.)

A prospective adoptive parent's interest in adopting the child is evidence that the child's age, physical condition, mental state, and other attributes are not likely to discourage others from adopting the child.  (I.W., supra, 180 Cal.App.4th at p. 1526.)  “In other words, ‘[w]hile, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable.’   [Citation.]”  (Ibid.) And where the parent fails to establish some legal impediment or other basis that might preclude reliance on the prospective adoptive parent's interest in adoption, a foster parent's interest in adopting the child is sufficient to support the juvenile court's finding of general adoptability.  (Id. at p. 1527.)

A reasonable inference from the record is that the juvenile court found the children generally adoptable.   That implied finding is supported by substantial evidence.   Father attempts to distinguish the situation in this case from that in I.W. by pointing out that the children here each had many more foster care placements than the three placements of the child in I.W. Yet I.W. supports the instant adoptability finding.   The appellate court in I.W. upheld the general adoptability of a child who had many more problems than either P.B. or M.B. The 10-year-old child in I.W. was found to be generally adoptable based on the willingness of his foster parent to adopt him, notwithstanding his testing positive for tuberculosis at birth, his throwing tantrums, his poor performance and lack of motivation in school, his threats to commit suicide and his running away from foster care, his diagnoses of ADHD, a learning disorder, and posttraumatic stress disorder, and the lack of a positive relationship with his foster mother.  (I.W., supra, 180 Cal.App.4th at p. 1525.)   In light of I.W., we also conclude that substantial evidence supports the juvenile court's finding that the children were adoptable.

B. Beneficial Relationship Exception to Termination of Parental Rights

Mother contends that substantial evidence does not support the order terminating parental rights as to M.B. and P.B. because of the children's positive emotional bond to Mother and because of the detriment that will result from the termination of their lifelong bond.

Section 366.26, subdivision (c)(1)(B)(i) affords 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.”   A parent has a beneficial relationship under the statute if it promotes the well-being of the child to such a degree as to outweigh the benefit the child would gain in a permanent home with adoptive parents.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)  “[T]he parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits - the parent must show that he or she occupies a parental role in the life of the child.  [Citation.]”  (I.W., supra, 180 Cal.App.4th at p. 1527.)   The parent has the burden of proving the beneficial relationship exception to termination of parental rights.  (Ibid.) We review the juvenile court's order under the traditional substantial evidence standard.  (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)

Because the issue of the beneficial relationship exception “turns on a failure of proof at trial,” the court in I.W. held that “it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.”  (I.W., supra, 180 Cal.App.4th at p. 1528.)   Rather, the question for the reviewing court is “whether the evidence compels a finding in favor of the appellant as a matter of law.  [Citations.]  Specifically, the question becomes whether the appellant's evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’   [Citation.]”  (Ibid.)

The court in I.W. explained:  “[A]s is common in many dependency cases, this case obligated the juvenile court to make highly subjective evaluations about competing, not necessarily conflicting, evidence.   As reflected in the juvenile court's ruling, the juvenile court considered the conflicting, competing evidence and essentially discounted mother's evidence in concluding that mother had failed to carry her burden of proof.   It is not our function to retry the case.   We therefore decline mother's implicit invitation to review the record so as to recount evidence that supports her position (reargument) with the object of reevaluating the conflicting, competing evidence and revisiting the juvenile court's failure-of-proof conclusion.  [Citations.]  This is simply not a case where undisputed facts lead to only one conclusion.”  (I.W., supra, 180 Cal.App.4th at pp.   1528-1529.)

We agree with DCFS that Mother fails to establish that she maintained regular visitation and contact with M.B. and P.B. Because Mother did not take advantage of all of the opportunities for visitation offered to her from March through October 2009, often visiting for only 20 minutes instead of two hours, and sometimes visiting only twice a month, the juvenile court reasonably could have concluded that Mother did not meet the regular visitation requirement.

The juvenile court also reasonably could have concluded that Mother failed to establish that the children would be benefited more by maintaining their parental relationships than they would gain in a permanent home with adoptive parents.   As stated by the court in I.W., “[t]his is simply not a case where undisputed facts lead to only one conclusion.”  (I.W., supra, 180 Cal.App.4th at p. 1529.)   As Mother does not show that the evidence compels a finding in her favor as a matter of law, she fails to establish that the evidence was insufficient to support the juvenile court's rejection of the beneficial relationship exception.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Unspecified statutory references are to the Welfare and Institutions Code.Mother has three older children who were also dependents of the juvenile court during part of the proceedings below.   Mother and Father had a fourth child together, Z.B., born in February 2008.   Z.B. is also a dependent of the juvenile court..  FN1. Unspecified statutory references are to the Welfare and Institutions Code.Mother has three older children who were also dependents of the juvenile court during part of the proceedings below.   Mother and Father had a fourth child together, Z.B., born in February 2008.   Z.B. is also a dependent of the juvenile court.

ROTHSCHILD, J. CHANEY, J.