IN RE: TARAMAY Y.

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Court of Appeal, Fourth District, Division 1, California.

IN RE: TARAMAY Y., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. PATRICIA M., Defendant and Appellant.

No. D019601.

Decided: February 09, 1994

Lloyd M. Harmon, Jr., County Counsel, Susan Strom, Chief Deputy County Counsel, and Kathryn E. Krug, Deputy County Counsel, for plaintiff and respondent. Craig E. Arthur, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant. David H. Askey, Del Mar, under appointment by the Court of Appeal, for the Minor.

Patricia M. appeals a judgment of the juvenile court terminating her parental rights under Welfare and Institutions Code 1 section 366.26 as to her minor daughter Taramay Y.   Patricia contends (1) her due process rights were violated when the court failed to make a finding of parental unfitness, (2) the finding Taramay was adoptable was not supported by substantial evidence and (3) the court erred in failing to maintain the mother-daughter relationship under section 366.26, subdivision (c)(1)(A).   We conclude none of these contentions has merit and accordingly affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Taramay was born on May 23, 1985, to Patricia and David Y.   The parents divorced in 1986 and shared joint legal custody of Taramay.   Since 1987, Taramay's time had been divided between Patricia in Kansas and David in California.

On August 22, 1989, the San Diego County Department of Social Services (Department) received a report Taramay told her babysitter that David had molested her.   Taramay repeated the allegations to the investigating social worker and to the worker at the Center for Child Protection.   A medical exam revealed “suspicious” nonaccidental genital trauma and chronic anal penetration.

Department filed a petition in the juvenile court on behalf of Taramay under section 300, subdivision (d) alleging she had been sexually abused and such abuse would not have occurred except for the acts of David.   At a detention hearing, the court detained Taramay in Hillcrest Receiving Home, licensed foster home or adjunct.

During its investigation, Department learned Patricia and her husband Richard B. were receiving services through the State of Kansas Department of Social and Rehabilitation Services because of referrals for general neglect.   The family was receiving assistance with housekeeping, budgeting, menu planning and available community resources.   Additionally, Patricia and Richard were receiving counseling to address discipline, coping skills and delegating chores to the children.   Department recommended against immediately placing Taramay with Patricia but recommended an Interstate Compact for the Placement of Children (ICPC) evaluation.   At a readiness hearing, the court denied Patricia's request to have Taramay placed with her.

Taramay was assessed for speech and language problems by the Oceanside Unified School District.   She was determined to have moderate to severe delays in communication development and it was recommended that she have speech and language therapy three times a week in the foster home with Taramay's caretaker to assist in the therapy.

At a jurisdictional hearing, the court found by clear and convincing evidence that the allegations of the petition were true and that Taramay was a person described by section 300, subdivision (d).   The court ordered an ICPC evaluation of Patricia's home.

At a dispositional hearing, the court declared Taramay to be a dependent of the court.   The court found placement with Patricia would be detrimental to Taramay because of ICPC requirements, the uncertainty of Patricia's present circumstances and Taramay's need for continuity.   The court ordered Taramay's physical custody be removed from her parents and that evaluations be done on Patricia's home, the home of the paternal grandparents in Oregon and the maternal uncle in Sacramento.   Patricia and David were ordered to comply with their respective reunification plans.   Patricia did not appeal any of the court's findings or orders.

Pursuant to the ICPC, the Kansas Department of Social and Rehabilitation Services submitted its report, recommending against Taramay's immediate return to Patricia's care.   The social worker cited four reasons for the recommendation:  “1. [Patricia]'s fluctuating stance regarding her relationship with Richard;  2. [Patricia]'s unresolved issues surrounding her childhood sexual abuse, dysfunctional family relationship, and her poor history of male/female relationships;  3. inconsistent practices regarding child care and home management and 4. [Patricia]'s passive-aggressive attitude towards agency involvement.”   The report stated the Kansas agency would continue to work with Patricia and had developed a service plan.

In January 1990, Taramay was hospitalized due to dysfunctional behavior.   She participated in a psychological evaluation with Allan Lincoln, Ph.D., who concluded Taramay's emotional and behavioral problems stemmed from abuse and neglect which could lead to vulnerability and insecurity in relationships.   Taramay was discharged a month later to her same caretaker, with recommendations for increased school time and speech therapy three times a week.   She continued in therapy with Mitchell Perlman, Ph.D.

On February 26, 1990, the Kansas social service agency filed a petition in the Kansas court to remove Taramay's half-siblings from Patricia's home.   The basis for the petition was Richard's continued spousal abuse and domestic violence against Patricia.   The children were ultimately returned to Patricia's and Richard's care with an agreement for informal supervision.

At a six-month review hearing, the juvenile court continued Taramay in foster care and found that reasonable services had been provided to the parents.   The court found Patricia had made “some” progress but that returning Taramay to her custody would be detrimental.   Patricia did not appeal the findings or orders from this hearing.

Taramay continued to have severe behavior problems for which medication had not been helpful.   Her psychiatrist believed that Taramay's seeing her mother, David's terminal illness, her reaction to the sexual abuse and neurological damage all contributed to her problems.   Taramay also showed signs of fetal alcohol syndrome.   The doctor recommended brief hospitalization.

At a 12–month review hearing, Department reported that the Kansas social services agency did not recommend Taramay be placed with Patricia because Patricia's home continued to be unfit and unsanitary, Patricia and Richard continued to have relationship difficulties and domestic violence and Patricia was unkempt, with extreme body odor and dirty hair.   The court found by a preponderance of the evidence that return of Taramay to the care of the parents would be detrimental.   The ICPC evaluation was not approved and Patricia had not complied with the reunification plan.   The court also found by clear and convincing evidence both parents had been offered reasonable services and Department was no longer obligated to provide services to either of them.   Finding Taramay was adoptable and there was no available guardian, the court ordered the permanent plan to be long-term foster care.2  Patricia did not appeal these findings or orders.

At a review hearing six months later, Department reported Taramay was adjusting well in her new foster home and that the foster family was willing to adopt her.   Taramay's behavior was somewhat oppositional but not out of control.   Department recommended the permanent plan be changed to adoption to offer Taramay the greatest amount of security and requested a hearing under section 366.26.   Patricia reported she had separated from Richard.   Taramay's psychologist was adamantly opposed to any involvement by Patricia with Taramay because it would most likely be detrimental to Taramay's welfare.   The court continued Taramay as a dependent and found long-term foster care continued to be the appropriate plan.   The court denied Patricia's request for visitation.   Patricia did not appeal these orders or findings.

At a further review hearing in January 1992, Department reported Taramay continued to make progress in the foster home and recommended the foster family adopt her.   Department had not had contact with Patricia and efforts to locate her had been unsuccessful.   Taramay's psychologist continued to strongly oppose reunification with Patricia and advocated adoption.   The court continued Taramay as a dependent and set a section 366.26 hearing.   Patricia did not appeal these orders.

At the section 366.26 hearing, Department reported Taramay's foster family had decided not to proceed with their application to adopt her but were willing to continue the placement.   The foster parents were disappointed her behavior had not improved more and they were interested in having more children in their home.   After an unsuccessful search for a prospective adoptive family, Department did not consider Taramay to be adoptable.   Patricia had contacted the court and again wished to be involved with Taramay.   The court continued the plan as long-term foster care and modified the no contact order to permit therapeutic contact between Patricia and Taramay, including monitored telephone and mail contact when determined to be beneficial.   The court authorized the social worker to change Taramay's placement upon notice to the court and all counsel.3  Patricia did not appeal any of these findings or orders.

At a review hearing on December 8, 1992, Department reported Taramay was adjusting well in Deborah's home and Deborah wanted to adopt her, being fully aware of her emotional problems.   Patricia's therapist indicated Patricia had a long history of instability and dysfunctional relationships.   The therapist was unable to say if Patricia would continue to progress or revert to old patterns and behaviors.   Taramay's therapist recommended she be adopted by Deborah.   Department recommended a section 366.26 hearing be held to evaluate a possible plan of adoption.   The court continued Taramay as a dependent and set a section 366.26 hearing.   Patricia did not appeal this order.

On March 15, 1993, Patricia filed a petition for modification of the previous juvenile court orders under section 388, requesting that Taramay be placed with her and also requesting increased visitation.   To show change of circumstances or new evidence, Patricia filed with the court a letter from her therapist indicating Patricia was participating in therapy and a women's group, she planned to pursue therapy through her church for her own molest issues and she was not involved in a romantic relationship.

At a hearing on the section 388 petition, the court heard testimony of Taramay, her therapist Dr. Perlman, Patricia and Patricia's therapist Dr. Kinder.   Taramay testified she wanted to live with her foster mother Deborah.   She said Patricia did not take good care of her and had burned her with cigarettes.   Taramay testified she did not want to see her mother because she did bad things to her.

Dr. Kinder testified it was very difficult for Patricia to focus and she had a tendency to minimize things and could become overwhelmed by Taramay's special needs.   Dr. Kinder diagnosed Patricia as having personality disorder mixed with dependent features.   Dr. Kinder believed Patricia needed to be in therapy a long time and that she had far to go to understand healthy relationships and to develop the social skills to make those relationships happen.

The court denied Patricia's section 388 petition on both the change of placement and the request for increased visitation but allowed therapeutic contact with the concurrence of Dr. Perlman.   Of significance to the court was Dr. Perlman's finding of no evidence of “initial bonding between [Patricia] and [Taramay], and that had exacerbated [Taramay's] emotional pain.”   Patricia did not appeal the court's order denying her section 388 motion.

At a contested section 366.26 hearing, the court received into evidence the following documents:  reports of special advocate Tracy Sanford–Wachtel dated April 6, 1993 and June 11, 1993, the assessment report dated April 6, 1993, additional information report dated April 6, 1993, additional information report dated June 11, 1993 and additional information report dated August 11, 1993.   All attachments to the reports were also received into evidence except the court officer's summary attached to the August 11, 1993, report.

Department reported Patricia had last seen Taramay in November 1989 at a court hearing.   Patricia sent a Christmas card and gift in December 1989.   She telephoned Taramay twice in 1990.   After the court ordered no contact between Patricia and Taramay, Patricia sent a card and some pictures to Dr. Perlman for Taramay.   However, Dr. Perlman declined to share them with Taramay because he believed it would be detrimental to her.   Patricia began telephoning Dr. Perlman twice a month starting in November 1992.   In February 1993, Dr. Perlman gave Taramay some cards and gifts sent by Patricia at which time her behavior deteriorated.   Patricia stopped telephoning Dr. Perlman after March 1993 and had not responded to Department's attempts to contact her.

Taramay recently began to recall that Patricia had burned her with cigarettes.   David had provided a medical report from 1987 indicating Taramay had “multiple healed circular scars, both upper and lower extremities, healing well.”   The examining doctor believed the scars were possibly cigarette burns.

According to the social worker, Taramay did not have a parental relationship with Patricia and it would not be detrimental to her to terminate parental rights.   Department had approved Deborah, Taramay's foster mother, as a prospective adoptive parent.   Taramay told the social worker she wanted to be adopted by Deborah and did not want to live with Patricia.4

The court heard the testimony of Dr. Perlman, Patricia, Deborah and social worker Lisa Guthrie.   Dr. Perlman told the court he had been Taramay's therapist since the inception of the dependency proceedings in October 1989.   He said Taramay would “do best in a home that is going to be able to understand her symptoms, understand the [etiology] of the symptoms, and someone who has skills in order to handle that particular child.”   He recommended Taramay be adopted by Deborah and told the court it was very important that Taramay have permanency.   He had no concerns about Deborah's ability to meet Taramay's needs.   In his opinion, it would not be beneficial to Taramay to continue her current relationship with Patricia.

Patricia testified she last saw Taramay in October 1989.   For the past year, she had been in regular contact with Dr. Perlman until about March or April 1993.   She denied burning Taramay with cigarettes.

Deborah testified that when Taramay came to her home in 1989 at four years of age, she did not know how to feed or dress herself.   She would bite and spit and exhibit other types of inappropriate behavior.   Taramay enjoyed a close bond with Deborah's son who was also a special needs child.   Deborah wanted to adopt Taramay and was open to future contact with Patricia and Taramay's siblings if that was Taramay's wish.

Guthrie, who prepared the reports for Department, testified Patricia continued to have problems.   There had been a recent hotline report and Patricia did not seem to be dealing with molest issues and had not discussed them at all in therapy.   The Kansas social services agency believed Patricia would always need assistance as long as there were children in her home.   Guthrie did not believe Taramay would benefit from a relationship with Patricia and Taramay wanted to be adopted.

The parties stipulated the court could consider Taramay's testimony at the section 388 hearing for purposes of the section 366.26 hearing.   At that hearing, Taramay told the court she wanted to live with Deborah and that Patricia did not take very good care of her.   She wanted to see her siblings but not Patricia.   She recalled Patricia burning her with cigarettes.

After reviewing all the evidence and hearing the testimony, the court found by clear and convincing evidence that Taramay was adoptable and termination of parental rights would not be detrimental to her.   The court also found by clear and convincing evidence adoption was in Taramay's best interest and ordered parental rights terminated.   Stating it was persuaded by the opinions of the social worker, the special advocate and the therapists, the court found continuing the mother-daughter relationship would not be beneficial.   The court stated it was particularly persuaded in its decision by Taramay's testimony and her letter to the court expressing a desire to be adopted.

DISCUSSION

I

 Patricia contends her due process rights were violated when the court, in terminating her parental rights, failed to make a finding of parental unfitness.   Citing Santosky v. Kramer (1982) 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 and Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307, Patricia asserts a finding of substantial risk of detriment is not the same as a finding of parental unfitness.   We disagree.

In Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307 the Supreme Court addressed a due process challenge to the statutory provisions allowing termination of parental rights based on a lesser standard of proof than clear and convincing evidence.   The court held a standard of proof less than clear and convincing evidence comports with the requirements of due process.   The court reasoned in part that unlike the proceedings in Santosky v. Kramer, supra, 455 U.S. 745, 102 S.Ct. 1388, “the purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement.  [fn. omitted.]   By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings [supporting termination of parental rights].   Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard (see § 361, subd. (b));  in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent.  (§§ 366.21, subds. (e), (f)[;] 366.22, subd. (a).)  Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child, is the section 366.26 stage even reached.”  (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307;  emphasis added.)   Thus, regardless of whether the terms “substantial risk of detriment” and “parental unfitness” are used synonymously or as separate concepts, nothing in Cynthia D. requires a finding of parental unfitness at the section 366.26 hearing.5

Although Patricia relies on Santosky to support her argument that her parental rights cannot be terminated without a showing of unfitness, the decision in that case concerned the standard of proof to be applied and did not address the issue of whether a showing of parental unfitness was constitutionally required.  (See In re Heather B. (1992) 9 Cal.App.4th 535, 555, 11 Cal.Rptr.2d 891.)   Nevertheless, the court in Cynthia D. distinguished Santosky on the point of parental unfitness, noting the difference in the present California dependency scheme.  “It is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are ‘at fault.’   The number of previous findings of ‘fault,’ coupled with the seriousness of the resulting danger to the minor, most clearly differentiate the section 366.26 hearing from the termination hearing in Santosky v. Kramer.   A parent whose conduct has already and on numerous occasions been found to grievously endanger his or her child is no longer in the same position as a parent whose neglect or abuse has not so clearly been established.   At this point the interests of the parent and child have diverged, and the child's interest must be given more weight․”  (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

Although the precipitating incident that brought Taramay before the juvenile court was David's molest of her, Patricia's own problems, including her own molest issues, violent relationships, uncleanness, dependent personality and possible physical abuse of Taramay, were relevant to the court's consideration of Taramay's best interests.   Contrary to Patricia's argument, the court was not required to find she was an unfit parent at the section 366.26 hearing.  “By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness․”  (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   Thus, Patricia's due process rights were not violated by the court's termination of her parental rights under section 366.26.

II

Patricia contends substantial evidence does not support the court's finding Taramay was adoptable.   She asserts that although Deborah wants to adopt Taramay, the adoption process could fail or Deborah could change her mind, making Taramay unadoptable.

The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals.   If there is any substantial evidence to support the findings of the juvenile court, we must uphold those findings.   We must draw all reasonable inferences in support of the findings and view the record in the light most favorable to the juvenile court's order.   We must affirm the order even if there is other evidence supporting a contrary conclusion.  (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214, 272 Cal.Rptr. 316;  In re Anne P. (1988) 199 Cal.App.3d 183, 199, 244 Cal.Rptr. 490.)   The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the order.  (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420, 159 Cal.Rptr. 460.)

 Under section 366.26, subdivision (c)(1), the court “shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted․”   This section does not require the court to find the minor will be adopted, a specific home is approved or the minor is already in a potential adoptive home.   Rather, the court need only find clear and convincing evidence of a likelihood that adoption will be realized within a reasonable time.  (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, 280 Cal.Rptr. 503.)

 Here, the evidence showed Taramay's foster mother Deborah would like to adopt her.   Deborah has known Taramay throughout the dependency period and has acknowledged her special needs.   Both Taramay's therapist and Deborah had seen her progress since the beginning of the dependency proceedings when Taramay was exhibiting extremely negative behavior.   At the time of the section 366.26 hearing, those behaviors had substantially abated.   Department approved Deborah's application for adoption.   Even if Taramay is not adopted by Deborah, Department believed it could locate another home for her.   Substantial evidence supports the court's finding Taramay is adoptable.

III

Patricia contends the court erred in failing to maintain the mother-daughter relationship under section 366.26, subdivision (c)(1)(A).   She asserts the court improperly found she failed to maintain regular contact with Taramay when throughout the proceedings she was effectively denied the opportunity to do so by the therapist, the social worker and the court's no contact order.

At a section 366.26 hearing, once the court finds the minor is adoptable, the burden shifts to the parents to show termination would be detrimental to the minor due to, among other things, the parents' regular visitation and contact with the minor and a showing of benefit to the minor from continuing the relationship.  (§ 366.26, subd. (c)(1)(A).)   Thus, Patricia had the burden to show (1) she had maintained regular visitation and contact with Taramay and (2) Taramay's relationship with her was so beneficial that it would be detrimental to terminate it.

 The court expressly found none of the provisions of section 366.26, subdivision (c)(1) had been established.   The evidence showed Taramay's emotional condition and special needs, as well as Patricia's circumstances, required the court to restrict contact between Patricia and Taramay during the dependency period.   Although generally parents have a right to visitation, this right must yield to the best interests of the child.   (In re Petra B. (1989) 216 Cal.App.3d 1163, 265 Cal.Rptr. 342.)   In the opinion of Taramay's therapist, which the court found persuasive, contact with Patricia would be detrimental to Taramay.   Thus, the fact Patricia was denied visitation was due to concern for Taramay's best interests, not the unfounded refusal of the therapist, the social worker or the court.

Further, even if there had been frequent contact between Patricia and Taramay, the court found it was not so beneficial that the exception of section 366.26, subdivision (c)(1)(A) applied.   The evidence was overwhelming that Taramay did not benefit from a relationship with Patricia.   Taramay needed a stable and permanent home with someone who understood her special needs.   Taramay's therapist, who worked with her throughout the dependency proceedings, testified that Taramay gained no benefit from the relationship with Patricia.   In the social worker's opinion, Patricia and Taramay did not have a parental relationship and it would not be detrimental to Taramay to terminate parental rights.   Taramay herself clearly told the court she did not want contact with Patricia.   She had not seen Patricia since 1989 and did not remember what she looked like.   She had, however, recently begun to recall abuse and neglect by Patricia, including cigarette burns.   Thus, Patricia failed to show termination of her parental rights would be detrimental to Taramay because Taramay would benefit from continuing the relationship with her.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   Four months later, Department filed a request for an order changing Taramay's placement.   The court ordered Taramay placed in the foster home of Morris and Margaret T.

3.   On June 18, 1992, Taramay was placed in the licensed foster home of Deborah L., a previous caretaker.

4.   Taramay also wrote a letter to the court expressing a desire to be adopted by Deborah.

5.   Patricia asserts that throughout the juvenile court proceedings, Department never alleged or proved, and the court never found, she was an unfit mother.   However, Patricia did not appeal any of the findings or orders from any of the proceedings resulting in the section 366.26 hearing.   Although she had notice and counsel at every stage of the proceedings and participated fully, she never sought appellate review and cannot now raise this issue as it pertains to those hearings.

BENKE, Associate Justice.

TODD, Acting P.J., and FROEHLICH, J., concur.

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