IN RE: G.C. (2011)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

G.F. (father) appeals from an order terminating parental rights (Welf. & Inst.Code, § 366.26) to his son G.¹ Father contends the juvenile court erred by not finding G. would benefit from a continued parent/child relationship with his mother.   He also joins in the mother's arguments in her related appeal, F060946, In re G.C. et al.   Mother likewise argued the juvenile court erred by not finding termination would be detrimental to G. She also argued the joint representation of all the children by one attorney in the juvenile court was improper.   On review, we disagree and affirm.

PROCEDURAL AND FACTUAL HISTORY

In early 2008, when mother's youngest child was an infant, doctors diagnosed him with numerous forms of non-accidental trauma.   Mother, the infant's father, Eric, and Eric's mother were the infant's primary caregivers and could not explain his many injuries.   Five-year-old G. and another child reported seeing Eric punch the infant.   Mother refused to believe that Eric could be responsible.

Consequently, Stanislaus County Community Services Agency (agency) placed the children in protective custody and initiated juvenile dependency proceedings.   While the infant remained hospitalized in critical condition, G. and his younger siblings were placed with maternal relatives, who were later declared the de facto parents of all four children (de facto parents).   Eventually, the infant went to live with the de facto parents as well.

Over time, the juvenile court exercised its dependency jurisdiction over the children, adjudged them juvenile dependents, and removed them from mother's custody.   For a brief period, the court placed G. with father and terminated dependency proceedings as to G. However, in a matter of months, father was arrested and incarcerated, resulting in new dependency proceedings for G. The agency once again placed G. with his siblings and the de facto parents.   In the latter part of 2008, the juvenile court declared G. a dependent and removed him from mother's custody.

Despite more than a year of reunification services, mother had not completed the reunification services offered to her and made only limited progress.   Also, the same concerns as before existed.   Mother's ability to be honest, stay away from Eric, and protect her children remained in question.   The agency, in turn, recommended that the court terminate services and set a section 366.26 hearing to select and implement a permanent plan for the children.

In November 2009, mother submitted to the agency's recommendation, having decided the placement with the de facto parents best served the children.   The court accepted mother's admission and also found that although she participated regularly in services, mother had not made substantive progress.   Instead, she made only limited progress.   Once the juvenile court terminated services and set the permanency planning hearing, it also ordered that G. and another of mother's children be made available for a bonding study if mother's counsel could obtain the funds and make the arrangements.

In its “366.26 WIC Report” filed in February 2010, the agency recommended that the court find the four children adoptable and terminate parental rights.   The likelihood of the children's adoption by their de facto parents was and is undisputed.   For various reasons, the section 366.26 hearing did not commence until late June 2010.   After two days of testimony, the court was in recess for approximately two months.   When the hearing resumed in mid-August, the court heard additional testimony before ordering termination of parental rights as to all of the children.

The evidence at the protracted section 366.26 hearing focused on mother's claim that she maintained regular visitation and contact with G. who had a beneficial parent/child relationship with her such that the juvenile court should conclude termination would be detrimental to G. (§ 366.26, subd. (c)(1)(B)(i).)   Mother did not pursue a similar argument with regard to her three other children.   She did not want G. adopted, but did not mind the de facto parents adopting her three other children.

With this in mind, we focus the balance of this summary on the evidence regarding mother's visitation and contact with G., as well as G.'s relationship with her, and the juvenile court's decision.

Visitation Evidence

During the first 12 months of reunification efforts, mother saw all of her children weekly on Fridays for two hours at the agency.   She also saw them on other occasions and had telephone contact with them.

In June 2009, the agency initiated weekly eight-hour visits between mother and the children.   All seemed to be going well.   However, information soon emerged that the children saw Eric when they visited with mother.   The agency also received conflicting information about where mother lived and whether she was once again living with Eric.

In late July, the agency suspended the day visits, but offered mother one to three hour weekly visits at the agency.   Mother apparently did not accept the agency's offer.

When the court terminated services in November 2009, it ordered once-a-month visits.   However, mother did not subsequently request visitation through the agency's social worker.   She, nevertheless, saw the children.   According to the agency's February 2010 “366.26 WIC Report,” mother saw the children at church on almost a weekly basis and called the de facto parents' home almost every day.

Between February and late August 2010, when mother testified, her contact with the children once again changed.   According to mother's own testimony, she saw the children at baseball games in which G. and another son participated.   She would watch the games and then visit with G. and one of his brothers for approximately 10 minutes.   Mother did not know whether their baseball season was in the spring, the summer, or both.   However, she testified she attended more than 10 times.

Also, she “really hadn't been to church” since Mother's Day 2010.   Mother attributed this to a lack of transportation, as well as the fact that the church the children attended was not her church.   Despite her claim that it was difficult to get a ride to church, she never called the social worker either for transportation or to arrange a visit.   She claimed she did not have the social worker's phone number or card.   G., who was also a witness, testified he did not remember the last time he saw mother at church.

Mother also testified she saw the children at G.'s football practices.   Those practices began two weeks before mother's testimony.   She saw G. at about five practices.   The practices were from 6:00 to 8:00 at night, although the days varied.   She saw G. right before and after practice.   G. testified he saw mother at football practice, but sometimes she did not come.   After he was done with practice, mother left.

Meanwhile, mother was attending school, which let out at 5:30 p.m. Attending school and not having a car made it “really hard” to make the practices.   Also, the bus stopped running after 7:15.

Asked about her current telephone contact with G., mother testified she had not called him since his school started.   She blamed the timing of her school attendance, the football practice, and the children's dinner and bedtime schedules.   Previously, she usually called at 7:45 or 8:00 p.m. right before they went to bed.   G. testified “she doesn't call no more.”

Relationship Evidence

There were two bonding studies in this case.   Psychologist Jeffrey Miller conducted the first bonding study in January 2010, at the request of mother's counsel.   Psychologist Cheryl Carmichael conducted the second bonding study between March and early May 2010, on the agency's behalf.

In their written studies, both psychologists agreed mother and G. shared a positive and substantial relationship.   However, they disagreed about the nature of the relationship and the risk of harm to G. if he were no longer to have contact with mother.

Dr. Miller opined that mother and G. shared a very close, mother-son type of relationship and G. would emotionally suffer if he were to have no more contact with mother.   Most likely, he would become very angry and depressed, and would act out these feelings in various ways, including oppositional and defiant behavior.   Dr. Miler stated that for G., continuing the parent/child relationship with mother outweighed the well-being that he would gain from a permanent, adoptive home.

According to Dr. Carmichael, the relationship between mother and G. was not one of parent to child.   Although mother made a good, conscientious effort to engage G. as a parent, he would not let her.   Instead, the child took the lead.   This resulted in an unhealthy peer-like bond.   Because of the strength of the relationship between G. and his siblings, and all of their relationships with the de facto parents, whom Dr. Carmichael also observed with G., the best solution for G. was to participate fully in the adoption process.

The psychologists' reports, their differing opinions, and the bases for those opinions, became the major focus of the permanency planning hearing.   The court received both psychologists' reports into evidence, accepted both psychologists as experts, and heard the testimony first of Dr. Miller and then of Dr. Carmichael.

Dr. Miller's Methodology

On one day, Dr. Miller interviewed mother, observed her with G., and administered two tests to G. The psychologist's observation of G. with mother lasted approximately 30 minutes.²  This was an adequate amount of time, Dr. Miller felt, to get some indication of the parent/child relationship and bond.

Testing consisted of first assessing G.'s receptive language to make certain the child functioned more or less in the average range.   The psychologist also asked the child to draw a picture of his family, which in his report Dr. Miller described as the Family Drawing Test. The purpose of this test was to see who the child considered to be important individuals in his life within the family.

The psychologist also spoke briefly by telephone with the de facto parents and mother's former parenting instructor to learn their observations of mother and G.'s relationship.   Dr. Miller also reviewed numerous records related to the dependency proceedings.

Dr. Miller testified he was unaware G. previously received counseling and had not spoken with the child's therapist.   It would be “possibly” important to talk with the therapist in preparation for the assessment Dr. Miller provided.

Dr. Miller's Observation of G. with Mother

At the beginning of their session, G. was more focused on the toys in the room than the relationship with mother.   When G. entered the room and first saw mother, he walked past her without saying anything to her and went over to the toys.   A lot of the interactions between G. and mother really had to do with playtime.   Mostly G. and mother played.   Dr. Miller reasoned this was because G. was a very active child, not one with whom one would sit down and have a nice conversation.   With activities, the relationship went much better than if there were no activities for G.

Asked whether there was an instance in which G. sought out mother for affection, Dr. Miller replied G. was not affectionate with mother.   Based on his observation of G., Dr. Miller did not think G. was a child who demonstrated affection.   To actually assess whether G. was an affectionate child, Dr. Miller acknowledged it would probably be important to see him in the care of his de facto parents, which the psychologist had not done.

The only time Dr. Miller recalled G. actually seeking out some attention from mother was towards the end.   G.'s hands were dirty and he went to mother who, in turn, cleaned them.   In another portion of his testimony, Dr. Miller described this as mother going over and washing the child's hands.

Dr. Miller saw some oppositional behaviors in G. The child often tested limits with the psychologist by wanting to know if he could take toys home.   Also, G. did not necessarily want to do the receptive language test and had refused until Dr. Miller convinced him to do so.   In addition, G. tested limits with mother.

“Whenever she—he would start to cheat at games or when he started to get into a refrigerator in the room, she would discipline him, set limits.”

Dr. Miller later added mother did a fairly good job of disciplining G. “given he's a difficult child to discipline.”   The psychologist saw evidence that mother set boundaries appropriately with him.   She could be more effective in setting limits with him, but again, G. was a difficult child.

Family Drawing Test

G. first made a drawing of himself and his mother.   In a second drawing, G. drew one of his younger brothers, himself, and mother in that order.   He drew the figures fairly close together on the page.   This indicated to Dr. Miller that G. saw himself as having a close relationship with mother.   G.'s family drawings were one of many factors that the psychologist considered.   It was an indication that from G.'s perspective he had a very close relationship with mother.

Dr. Miller's Conversations with De Facto Parents

The de facto father told Dr. Miller there was a positive relationship between mother and G. In the past, G. asked to live back with mother.   More recently, the child had not made that request.   According to Dr. Miller's written bonding study, the de facto father reported that whenever G. got into trouble and the de facto father had to discipline him, the child would say he wanted to live back with his mother.   However, he would not say this unless he was being disciplined.

Dr. Miller also testified he learned from the de facto father that mother had some difficulties setting limits with G. Other than that, the de facto father did not report any significant problems in the relationship.   According to Dr. Miller's written bonding study, however, the de facto father also believed mother's difficulty setting limits with G. was a primary reason why the child wanted to live with mother in that she would allow G. to get away with things that the de facto father would not permit.

The de facto mother believed it would take G. a long time to get over a loss of contact with mother.

Dr. Miller initially testified both de facto parents also reported that G. would become defiant and rebellious if parental rights were terminated.   However, the psychologist rescinded that testimony.   Instead, they reported G. became more defiant and rebellious after unsupervised visits with mother.   However, those problems were not as evident when the visits or contacts with mother were reduced.

Dr. Miller interpreted the de facto mother's statement to mean G. was less rebellious and oppositional immediately following visits and contacts with mother once the visits had been reduced.   The psychologist did not interpret the statement in terms of G.'s overall behavior.

Dr. Miller's Opinions

Dr. Miller reiterated his opinions that G. and mother shared a parent/child relationship and it would be beneficial for G. to have continued contact with mother.   He cited the following reasons.   First, G. indicated, since the beginning, that he wanted to live with mother.   This clearly showed an attachment.   Second, G. would become very angry if their relationship were terminated.   Because G. already had “sort of oppositional behavior,” Dr. Miller believed the child would start to act that out.   Also, according to the psychologist, mother had predicted anger as one of G.'s reactions.   Third, G. would become depressed and it would not be a temporary kind of issue for him.   The psychologist cited the fact that G. had said he would be very sad, the de facto mother believed it would take G. a long time to get over the loss of contact with mother and mother's prediction that G. would be depressed.

On cross-examination, Dr. Miller acknowledged the de facto mother indicated that it would be difficult for G. to get over a loss of contact with mother, rather than he would never get over such a loss.   It would be speculative to say G. would never get over a loss of contact with mother.   However, at least in the short term it would be detrimental.   The child's immediate reaction would be anger and depression.   Dr. Miller also would expect to see an increase in acting out behaviors at least on a short-term basis.

Dr. Miller also qualified his testimony about mother's prediction of anger and depression.   In fact, what she said was G. would “shut down” because he really wanted to come home.

Dr. Miller further believed G. had a lot of the symptoms of attention deficit hyperactivity disorder:  short attention span, hyperactivity, and impulse control.   Such children generally are more apt to act out their emotions.   That would be the psychologist's concern with G.

Given his belief that G. would suffer sadness, anger, and perhaps oppositional behavior if parental rights were terminated, Dr. Miller conceded he would want to know whether G. actually suffered sadness, depression or oppositional behavior in his normal day-to-day life.   However, Dr. Miller did not see a need to observe G. with his de facto parents to find that out.   The psychologist relied on his telephone conversations with the de facto parents and their observations.

Dr. Miller could not say that G. was at risk of developing an attachment disorder if rights were terminated.   It depended on whether he had attachments to other important parental figures to offset the loss of mother.   There was a short-term risk G. would have “some of those issues.”   Long-term risk would be more difficult to predict because it depended in part upon what relationship he might develop with the de facto parents from that point forward.

The psychologist did not know enough about G.'s relationship with his de facto parents to offer an opinion as to whether it was strong enough or would offset problems as far as attachment in the future.   Dr. Miller had not been asked to assess whether G.'s relationship with the de facto parents would mitigate the detriment the psychologist believed G. would experience from a lack of contact with mother.

To Dr. Miller, the benefits of adoption for G. would be the same as for any child being adopted.   There were some advantages in terms of more stability in knowing he would be staying in the adoptive home.   Dr. Miller could not think of any other advantage.   The psychologist did not believe it made any difference in terms of benefit if G. were adopted by the de facto parents because the child already had a relationship with them.

Also, adoption would not change or make a big difference in terms of G.'s oppositional behavior.   Instead, the oppositional behavior would continue and possibly get worse, if G. were not having contact with mother.   G.'s oppositional behaviors could become more or less severe depending on the stresses placed upon him.   Not being able to live with mother was certainly a stressor.   However, that would be mitigated if he were told he could not go home, but would have regular contact with her.

Dr. Miller agreed there was evidence G. had been told he was not going home with mother.   Also, the psychologist did not recall that G. had a poor reaction to being told that.   Yet, the child persisted in thinking he would still go back with mother.   The psychologist did not know whether G.'s continued contact with mother had led in part to the child's mistaken belief.

Further, Dr. Miller did not see any detriment to G. if his siblings were adopted and he was not.   The psychologist did not think a different permanent plan for G. would change the siblings' basic relationships.   Dr. Miller saw a greater harm if G. were not allowed to continue to have a relationship with mother.

Dr. Miller's Critique of Dr. Carmichael's Assessment

Dr. Miller did not see huge differences between his observations and those of the other psychologist, Dr. Carmichael.   A lot of their observations were the same, but they reached different conclusions.   Dr. Miller did not believe Dr. Carmichael's conclusions were supported by what she observed.

Asked about Dr. Carmichael's assessment of an unhealthy peer-like bond between mother and G., Dr. Miller testified he did not see that kind of relationship.   From Dr. Miller's perspective, it was clearly a mother and son relationship where she would set limits.   It was also a “very caretaking-type relationship.”

Further, Dr. Miller did not believe G. and mother's play activities were more indicative of mother being a playmate to G. as opposed to an active parent.   The play activities were a way of interacting with him.

The fact that G. tested the limits was more an issue of how adults discipline and set limits with him rather than there was a lack of or diminished parent/child relationship.   However, Dr. Miller did acknowledge it was possibly G.'s expectation that he would be able to get away with more if he were with mother.

Dr. Miller agreed the child's continued hope that he might go home with mother was a stressor in and of itself as opposed to knowing there was a plan once and for all.   Less uncertainty was better for G., who did well with structure and boundaries.   It would make his behavior more manageable

Dr. Carmichael's Methodology

On separate dates starting in the end of March, Dr. Carmichael met first with mother, then the de facto parents, and next with G. alone.   Her interview of mother took probably longer than an hour.   Her other interviews each took one hour.   Later, she observed mother with G. for one hour.   Last, she had a session with the de facto parents and G. for one hour.   Each interview and session took place in her office for the sake of familiarity.   The psychologist also read reports prepared for the court.

With regard to her one-hour sessions observing G. with mother, and G. with the de facto parents, Dr. Carmichael did not feel she could get enough information in a shorter period of time.   This was because relationships shift and get better or worse over time.

Dr. Carmichael asked to spend time with G. and his de facto parents in order to complete her bonding study.   To assess the quality and character of any person's connection with another, she needed to have something to compare it to.   Although she could have relied on statements provided by the de facto parents, observations were worth much more than words.

Dr. Carmichael reviewed Dr. Miller's reports and believed they were important.   He approached the whole project in a slightly different way than she did.   His sessions were much shorter and occurred all in one day.   She agreed that Dr. Miller and she had similar observations of the relationship between mother and G.

Dr. Carmichael's Observation of G. with Mother

G. was very much at ease with mother and she with him.   They obviously liked one another.   However, G. did not seek mother out for affection or help.   He sat next to her on the couch when she asked him to do so.   G. also looked at mother a lot and asked what did you bring me and can we play now?   Mother asked G. to come give her a kiss and later to come give her a hug.   He did not respond to either request.   She hugged him.

Also, G. did not show much willingness to speak about his life to mother and allow her to maintain contact with him.   As long as mother was following his lead in playing, he was pretty cooperative.   He seemed preoccupied with play during the session.

Mother “worked really hard to connect with him as a mom, asking how was your day, what's happening, all that kind of stuff—he avoided all of those questions.”   He avidly avoided talking about everyday things and his life with mother.

Instead, Dr. Carmichael described their exchanges as, “How are you?   Fine. Onto the next subject.”   Dr. Carmichael did not mean that G. did not speak to mother.   He just changed the subject in response to her questions.   It was not until mother said okay, let's play, that G. would talk.  “We'll play this.   We'll play this.   What did you bring me?”

A child who is well bonded to a parent will seek out that primary person for help, direction, and affection.   During G.'s session with mother, he sought the psychologist out.

At the end of G.'s session with mother, Dr. Carmichael announced it was time to go.   G. said okay and “he was gone.”

Dr. Carmichael's Observations of G.'s Session with the De Facto Parents

A lot of the session between Dr. Carmichael, the de facto parents and G. was spent talking.   G. had a hard time following the conversation and verbally responding to someone's question.   G. sought the de facto parents out for assistance with information and help in the discussion.   He was very articulate when chatting about what he wanted to do.   G. talked about “sort of everyday stuff” with the de facto parents.

There was no physical contact between G. and the de facto parents during their one-hour session.   However, in the waiting room, G. sat next to his de facto mother and leaned into her.   G. had not done the same with mother.

Dr. Carmichael's Other Observations of G.

G. seemed preoccupied with play during his session with Dr. Carmichael and his session with mother.   This was unusual for his age group.   Children who come to the psychologist's office know “it's pretty serious business.”   The toys are pretty enticing, but they will answer questions if they can.   When they become unable to stay on target and are so preoccupied with what is going on, it raised questions and gave Dr. Carmichael a lot to think about.

With G., he was up and at the toys immediately during his session with Dr. Carmichael.

“He asked over and over and over and over and over again if he could take my toys home.   And every time I said no, he was just getting increasingly furious with me.   Can I take it?   But as soon as it was, okay, can we do this[?]  Sure. Can we do that, then he ․ spoke spontaneously about the toys, the play, the stories, that kind of stuff.”

He was still very preoccupied with play during his later session with mother.

In both his session with the psychologist and his session with mother, G. made reference to “when I go home to my mom.”   He simply assumed that was the case.   He also wanted to live with mother and was very clear about his reasons.   G. told the psychologist:

“I want to go live there because she lets me do a whole bunch of stuff that I don't get to do at [the de facto father's] house.   I get to play video games all the time.   I get to play them if I want to or not.   I get to play with stuff that's Eric's.”

G. also cited mother's pork chops.

Asked “what would it be like not to see your mom anymore,” G. replied, “well, I'll always see my mom.   I see her at church every week.”

Dr. Carmichael also inquired what would it be like not to see the de facto parents or his siblings.   That question “sure stopped him in his tracks.”   For the first time G. looked Dr. Carmichael straight in the face.   G. replied he could not imagine not seeing his siblings.   He also said, “no, I have to see [the de facto parents].”   G. never made the same statement regarding mother.

Dr. Carmichael also observed that G. had a “really, really hard time answering questions.”   It appeared he did not quite follow the content.   It is a very common symptom of Attention Deficit Disorder (ADD).

G.'s expressive language was fabulous.   He was very articulate and bright.   Yet, when it came to responding effectively to someone else's question, it was as though G. only heard the first two words and jumped to a conclusion.   Also, G. “certainly ha[d] the wiggles” for ADD. He also had trouble socially and could get kind of oppositional.   All of this was symptomatic of attentional issues.   She did not believe he had a measurable learning difficulty because he was so bright and doing so well in school.

Dr. Carmichael's Opinions

Dr. Carmichael described G.'s relationship with mother as “so long as he could direct her to do what he wanted to do, he was perfectly happy.”   It was pretty obvious that mother worked hard to sort of manage him, to interact as a parent.   However, G. really would not let her.   If there was any kind of move towards parental interaction, G. became pretty agitated.   G. was “a little boy who acts and believes that he's in charge[.]”

G. believes he is in charge based on his use of language, demeanor, insistence, and “his huge winning smile” when he chooses what to do and how to do it.

He developed the notion that he was in charge from years of practice.

With his de facto parents, he tries to believe he is in charge.   It was difficult for G. to be told what to do.   Nevertheless, it was “pretty clear” from the several occasions Dr. Carmichael saw G. that his role within the de facto parents' family was one of the child.

The fact that he absolutely believed he was going home with mother was something Dr. Carmichael took into consideration and felt was important.   This also indicated G. believed he was in charge.

His reasons for wanting to live with mother were also of concern to Dr. Carmichael.   Children G.'s age express a desire to do what they want to do.   However, that reason is usually in addition to other remarks such as, “I miss her, I'm miserable without her, whatever.”   G. did not make such statements.

Dr. Carmichael also believed it was important that G. had not sought out mother for affection or help.   On the other hand, G. had sought the de facto parents out for assistance with information and help in the discussion.

The de facto parents also reported G. was affectionate.   This reported affection was not central in Dr. Carmichael's formulating her opinions and conclusions.   However, the absence of any affection to mother made the de facto parents' reports more significant.

The fact that G. would talk about everyday things with the de facto parents and not much with mother was just one element.   However, looking at the “entire package,” Dr. Carmichael noted generational boundaries.   Generational boundaries refers to an adult's ability to establish themselves as basically the person in charge and the primary caretaker over a child.   Their influence is more significant than the child's.   G.'s interactions with the de facto parents placed him in the role of the child.   There was clearly a distinction between who was the child and who was in charge.   That was not the case in G.'s relationship with mother.   They were much more peer-like when the interaction was going well.

To G., living with mother would always be considered an option under less formal circumstances than adoption.   He would continue to basically assume that the only reason he was not going home was because his de facto parents would not let him.   This would be a problem for G.'s stability.   It would set up ongoing conflict with his de facto parents and siblings.   It was most remarkable that G.'s relationship with his siblings was very strong.   In terms of emotional development to have one child on one playing field and three others on another in a similar kind of circumstance was a recipe for conflict.

Dr. Carmichael opined that adoption would be beneficial to G. on several fronts.   One, it would maintain a significant and positive relationship with his siblings that was based on all of them being in the same circumstance.   Two, it would help him resolve his sense that he was always waiting for the next time he could go “home.”   Adoption would “basically take many issues of conflict off his plate.”   The fact that G. possibly suffered from ADD probably strengthened Dr. Carmichael' findings, although it was not absolutely essential.

On cross-examination, Dr. Carmichael agreed that if G. had no further contact with mother, he would probably react very negatively.   However, he would not necessarily react with fits of anger.   A certain level of depression would be the most appropriate response.

Dr. Carmichael did not know how long the reaction would last.   Her assumption was that it would be fairly brief.

Asked if there was a substantial potential for rebellion by G., Dr. Carmichael replied “50/50.”   Under any circumstances, G. would be “a handful.”   “[C]onsequently, the strongest parental circumstances will give the most likely chance to manage himself well.”   Dr. Carmichael also acknowledged that termination of parental rights would be difficult for G., but less difficult than being in limbo, i.e., a legal guardianship.

In making her recommendations to the court, Dr. Carmichael did not assume G. would have continued contact with mother.   The psychologist understood that there was a possibility G. would never have contact with his biological parents ever again.   She considered this as well in making her recommendations to the court.   Her report did contain a statement that mother and child could have continuous contact.   However, that was the assertion of the three adults whom she interviewed.

Dr. Carmichael did not do any testing in this case, as Dr. Miller had, because she did not think it would yield any additional information.   She certainly considered Dr. Miller's information about the tests he gave.   As to those tests, it would have compromised the integrity of the entire task to repeat them.

The fact that G. drew pictures of his family that included mother was important, but Dr. Carmichael would have to see the drawing to assess its importance.   Clearly, mother was family to G. but it did not necessarily mean that other people were not family to him.   His drawing of mother could not be taken in isolation.

“He had been just sitting with his mother, and then he drew the picture.   You could establish some kind of continuous timeframe issues.  [¶] If I were to ask him to ․ draw a picture of his family, he might actually, at this point in time, draw his football team, because it is his very favorite thing.  [¶] It doesn't dismiss his other connections, but I think it is taken out of context.”

Resumption of Dr. Carmichael's Testimony

When the hearing resumed in mid-August, Dr. Carmichael took the stand once more.   She started by testifying she previously believed G. would benefit from ongoing, continuous contact with mother due to his bond with her, but such contact was insufficient to provide G. with stability.   However, the psychologist had just learned of some changes in that contact, namely, mother had not been to church for quite a long time and her phone contact with G. was less frequent.   This new information regarding the inconsistency of visits strengthened Dr. Carmichael's opinion that G. should be adopted.   Assuming this new information was accurate, that kind of inconsistent contact left the child in limbo, wondering to whom he truly was connected.   This made it terribly detrimental to his relationship attachments and his ability to thrive within the family situation in which he lived.

Despite the terrible sadness he would feel if he never saw mother again, the solidity of his relationship within the family, that is, his connection with his siblings and to be a part of that family, was preeminent.   G.'s connections to his siblings were stronger than his connections to the adult figures in his life.   That included mother.   The fact that G. had a strong bond with mother did not change Dr. Carmichael's recommendation that the adoption proceed.

A strong-willed child, such as G., fights with himself about “where do I belong, and I need to have my identity.”   That drives a lot of strong-willed children.   They need some way to assert their sense of individuality.   To continually be up in the air, which is essentially where G. was, accentuated his inner conflict.   The permanency of adoption could really relieve that sense of personal conflict.   Also, if G. were in a guardianship and the other children were adopted, that established an even more severe kind of crucible for conflict.  “How come you got this, and I didn't get that?   How come you are this, and I'm not that?   Ha-ha, I got this, and you don't.”   It was sibling rivalry but very detrimental to a sense of family connection.

Other Testimony Regarding G.'s Relationship with Mother

Seven-year-old G. testified he remembered living at mother's house.   He and she would play.   Now, he lived with the de facto parents and he liked living with them and his siblings.   He also liked to see mother and he missed her.   It made him happy to see her.   He also thought he would always be able to see mother no matter what.

When asked if there was anything he wanted to tell the court, G. replied, “[t]o live with my mom.”   He could not explain why at first, but he eventually said, “[b]ecause I love her.”   He also loved the de facto parents.   G. thought it was more fun at mother's house because he thought he got to play more.

G.'s stepmother testified about the time in 2008, when G. lived with his father and the witness.   G. asked about mother all the time and called mother “mom” or “mommy.”   He always said he loved mother and wanted to be with her.

The stepmother helped facilitate G.'s visits with mother.   G. and mother always had communication.   They were fine together.   They definitely showed affection.   The stepmother saw mother redirect G. if he did something he was not suppose to do and he would do what mother said.

G.'s maternal aunt also testified.   She lived with mother for a while when G. was born.   Mother was G.'s primary caretaker and took on a parental role with him.   The maternal aunt also had regular contact with G. and mother until 2008, when G. was removed.   She saw G. and mother play together.   They interacted fine.   She felt that mother and G. had a close relationship.   A child was always going to have a close bond with his or her mother.

The maternal aunt recently talked to G. at a family birthday party.   He talked about mother who was also there.   Mother and G. played together and he seemed happy.

Mother testified about her sessions with Dr. Carmichael.   Mother claimed her appointment with the psychologist lasted only 35 minutes and they only spoke about G. for six to seven minutes.

During the session in Dr. Carmichael's office with G., the psychologist directed G. to show mother a game.   Mother and G. then played it for approximately 10 minutes.   After that, the psychologist showed G. some marbles.   Mother and G. then played marbles.   The psychologist did not ask them questions.   Mother did not have trouble controlling G. He also listened to her.

Before the session started, G. and mother sat together and she read him a book.   When she first arrived, she hugged G.

Mother described her relationship with G. as “like a mother and son relationship.”   They were close.   She was the only parent figure he had until he went to live with the de facto parents.   She and G. would talk about everything.   She never did anything without him.

The attorney for father made an offer of proof accepted by the parties and the court.   If he were called to testify, father would state he had observed a strong bond between G. and mother.   Also, father strongly believed severing the parental bond would be detrimental to G.

The court also asked the de facto parents if they wished to testify.   The de facto father did.   The de facto father wanted to adopt all four children.   However, he did not have a problem with a guardianship for G.

The de facto father did feel that G. would have a problem because of his last name, which was different from the rest of the family.   G. already felt singled out because of the different last name.   The de facto father would like G. to be known by the family's last name because he wanted him to feel comfortable.   Mother's counsel represented that mother would not oppose adding the family name to G.'s last name.

The de facto mother was agreeable with either adoption or legal guardianship as the permanent plan for G. She, nevertheless, believed G.'s permanent plan should be adoption.   She mentioned that children tease each other.   Also, G. was very smart and understood what was going on.   He would feel different if the others were adopted and he was not.

With adoption as the plan for all the children, they would know they had stability in her home, they would not be removed, and no matter what, she and her husband would be there to support, care for, and provide for them.   Stability was important because for so long the children had none.

Asked how G. would react to being adopted, the de facto mother replied that at first he would be rebellious, but in time he would understand why the decision was made.   She was prepared to accept the rebelliousness.

The Juvenile Court's Decision

After closing arguments, the juvenile court took the matter under submission.   It considered all of the children's files, the agency's reports, and the juvenile court's prior findings and orders, in addition to the evidence presented.

The juvenile court did not doubt that G. was very much attached to mother and that she loved him very much.   The juvenile court found Dr. Carmichael's testimony more compelling than Dr. Miller's for several reasons.   Also, the court expressly found mother's visits and contacts had not been consistent.   The court did not find mother had occupied a parental role during those visits.   Instead, the relationship between G. and mother was more like that of playmates.

The juvenile court also stated it did not make its orders based in any way upon representations that the de facto parents would allow ongoing contact between mother and the children.   However, the court acknowledged it believed that there would be ongoing contact.

DISCUSSION

Father contends we should reverse the order terminating parental rights to G. because mother maintained regular visitation and contact with G. who would benefit from continuing that relationship. (§ 366.26, subd. (c)(1)(B)(i).)   He disputes the juvenile court's finding of inconsistent visits and contact.   He also contends there was no substantial evidence to support a negative finding in this case, that is, G. would not benefit from maintaining his relationship with mother.   In addition, father contends even Dr. Carmichael agreed G. would suffer if his ongoing contact with mother ceased.   As discussed below, we disagree.

Section 366.26, subdivision (c)(1)(B), acknowledges parental rights termination may be detrimental to a dependent child under specifically designated circumstances.   In particular, section 366.26, subdivision (c)(1)(B)(i), permits a finding of a detriment in situations where a parent has maintained regular visitation and contact with his or her child and the child would benefit from a continued relationship with the parent.   For the beneficial relationship exception to apply,

“the parent-child relationship [must] promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents.  (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)   A juvenile court must therefore:  ‘balance ․ 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.’  (Id. at p. 575.)”  (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

This statutory exception merely permits a court, in exceptional circumstances, to exercise its discretion and choose an option other than the norm, which remains adoption.  (In re Celine R. (2003) 31 Cal.4th 45, 53.)   The statutory presumption is that termination is in the child's best interests and, therefore, not detrimental. (§ 366.26, subd. (b);  In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1343–1344.)   Furthermore, it is an opposing party's burden to show that termination would be detrimental under one of the statutory exceptions.  (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

When a court rejects a detriment claim and terminates parental rights, the appellate issue is whether the juvenile court abused its discretion in so doing.  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)   For this to occur, the proof offered would have to be uncontradicted and unimpeached so that discretion could be exercised only in one way, compelling a finding in favor of the appellant as a matter of law.  (Roesch v. De Mota, (1944) 24 Cal.2d 563, 571;  In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)

In this case, the proof mother offered was contradicted, if not impeached.   The record, as summarized above, was awash in conflicting evidence regarding whether mother maintained regular visitation and contact, whether she and G. shared a parent/child relationship, and whether G. would suffer significant let alone great harm if he no longer had contact with mother.   The juvenile court was entitled to accept one expert's opinion over another.  (In re Casey D. (1999) 70 Cal.App.4th 38, 48.)

In complaining about the court's finding against regular visitation and contact, father contends the agency unilaterally terminated mother's visits without any court order and did not assist her in setting up phone calls or visits.   Thus, in father's view, mother can hardly be blamed if her visits and contacts were at all inconsistent.   The record as summarized above, however, does not support father's argument.

The agency never unilaterally terminated mother's visits.   At most, it suspended the children's day visits with mother in the summer of 2009, because the children were having contact with Eric during those visits.   The agency offered mother, in exchange, weekly supervised visits, which she apparently did not accept.   Once the court terminated services in November 2009, and reduced visitation to once a month, mother did not go through the agency's social worker for visits.   She never called the social worker either for transportation or to arrange a visit.

Mother tried to shift responsibility away from her and onto her school schedule, her lack of transportation, the children's school and practice schedules, and even the agency.   However, by her own actions, mother's visits and contact with G. became increasingly inconsistent in 2010.   Given her failure to explain why she could not regularly and dependably visit with the children, for instance on a day when neither she nor G. was in school, the court was not required to accept mother's claim that she maintained regular visits and contact.

To the extent father argues there was no substantial evidence to support a finding that G. would not benefit from maintaining his relationship with mother, father misunderstands the law.   Given the statutory presumption that termination is in the child's best interests and therefore not detrimental (§ 366.26, subd. (b);  In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1343–1344), the law does not require a juvenile court's negative finding, i.e., a child would not benefit from a continued relationship, let alone this court's review of a juvenile court's rejection of a detriment argument for substantial evidence.   Instead, we review for abuse of discretion because the statutory exception merely permits a court, in exceptional circumstances, to exercise its discretion and choose an option other than adoption.  (In re Celine R., supra, 31 Cal.4th at p. 53.)   As previously stated, given the conflicting evidence presented, the juvenile court could properly reject mother's detriment argument.

In addition, like mother, father is critical of Dr. Carmichael's opinions.   Yet he sidesteps the law, which placed the burden of proof on mother.   It was up to her to affirmatively establish that termination would be detrimental under the statutory exception.  (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

Both parents overlook legitimate questions raised regarding the opinions of mother's own expert, Dr. Miller.   In light of those questions, a few of which we mention below, the juvenile court properly could give Dr. Miller's opinions little weight and thereby not be persuaded by mother's claim of detriment.

Dr. Miller only observed G. and mother together for a total of 30 minutes, 15 of which included another child.   While the psychologist believed that was an adequate amount of time to get some indication of the relationship and bond, the juvenile court was not bound to agree.   This was especially so in light of Dr. Carmichael's testimony that she could not get enough information in less than two hours of observations because relationships shift and get better or worse over time.

Also, Dr. Miller did not observe G. with his de facto parents as Dr. Carmichael had.   Although Dr. Miller claimed he could learn enough from talking with the de facto parents on the telephone, there were problems with this approach.   Dr. Miller arguably ignored the de facto father's remarks that G. would say he wanted to live with mother when he was disciplined.   Dr. Miller also overstated what the de facto mother told him in arriving at his opinion that G. would suffer harm absent contact with mother.   There was also Dr. Carmichael's testimony that to assess the quality and character of any person's connection with another it was important to observe, as in this case, the child with the de facto parents as well as mother.   This may have proved significant to the court, for instance, when it came to Dr. Miller's opinion that G. was not an affectionate boy so that his lack of demonstrable affection toward mother was not notable.   Even Dr. Miller had to concede that to actually assess whether the child was affectionate, it probably would be important to see the child in the de facto parents' care.

In addition, Dr. Miller did not consult with the child's therapist or consider whether G.'s relationship with the de facto parents would mitigate any harmful effects.   All of these questions about Dr. Miller's approach are in addition to the repeated times he contradicted himself on the witness stand and had to retract some of his statements.

In any event, father's criticisms of Dr. Carmichael are not well placed.   For one, Dr. Carmichael specifically testified that in making her recommendations, she had not assumed G. would have continued contact with mother.   Father overlooks, as well, the court's statement that it did not base its decision upon representations of ongoing contact.

Father questions as well Dr. Carmichael's ability to render an opinion about the strength or weakness of a parental relationship based on her observation that G. wanted to play rather than talk with mother about his day.   Citing Evidence Code section 801, father claims Dr. Carmichael failed to establish that her one observation session was a test reasonably relied upon by professionals in the field in forming an opinion about a parental relationship.

This argument fails on several levels.   First, no one, father included, ever objected to or asked that a foundation be laid for the use of an observation session in assessing the strength or weakness of a parental relationship.   Thus, father has forfeited this argument on appeal.  (Evid.Code, § 353.)   Also, Dr. Carmichael never testified she based her opinion about the relationship between mother and G. solely on the one hour she spent observing mother and G. Further, if, as in father's opinion, Dr. Carmichael's one-hour observation of mother and G. is suspect, we question what does that say for Dr. Miller's half-hour observation of the pair, most of which was spent playing.

Father also takes some of Dr. Carmichael's observations out of context.   For instance, Dr. Carmichael did testify mother worked hard to interact as a parent with G. However, father overlooks what else the psychologist had to say in this regard, namely that G. would not let mother interact with him that way and became pretty agitated.   Instead, G. took the lead.

Father quotes further mother's testimony to the effect that Dr. Carmichael only asked her and G. to play during the psychologist's one-hour observation of them as somehow undermining Dr. Carmichael's opinion that G. and mother did not have a parent/child relationship.   Such an argument, however, is unavailing for at least two reasons.   One, the juvenile court could have found mother's testimony self-serving.   Two, Dr. Carmichael's opinion that there was no parent/child relationship was not based solely or even in significant part, on an observation that G. and mother played during the one-hour session.

In addition, father claims Dr. Miller's opinion was supported by Dr. Carmichael's own testimony that G. would be harmed without ongoing contact with mother.   Father however oversimplifies Dr. Carmichael's testimony, as summarized above.

While she agreed G. would probably react very negatively, he would not necessarily react with fits of anger or rebellion and the reaction time could be fairly brief.   Also, while termination would be difficult for G., it was less difficult than being in the limbo of legal guardianship.   Dr. Carmichael opined a permanent plan short of adoption would be a problem for G.'s stability because of his assumption that living with mother was always an option.   It would set up conflict with his siblings and de facto parents.   Adoption, on the other hand, would help him in this regard.   All of this was in addition to Dr. Carmichael's testimony about the lack of a parent/child relationship between G. and mother.

In conclusion, we reiterate the juvenile court did not abuse its discretion by rejecting mother's detriment argument.

Joinder

Father also joins in mother's appellate briefing.   She, too, claimed the court erred by not finding termination would be detrimental to G. In addition, mother argued the trial attorney who represented all four children had an actual conflict of interest when she submitted on the agency's argument that the court should terminate parental rights.   Mother also asserted that the children's attorney failed to effectively represent G. by not clearly informing the court of the conflict between G.'s stated wishes and what the attorney believed was in the child's best interests.   On review of mother's appeal, we disagreed with each of these claims.

DISPOSITION

The order terminating parental rights is affirmed.

FOOTNOTES

FOOTNOTE.  

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

FN2. Mother's counsel originally asked Dr. Miller to assess the relationships between mother and another son, as well as mother's relationship with G. As a consequence, Dr. Miller saw mother and G. together for 15 minutes and spent another 15 minutes observing mother, G. and his younger brother..  FN2. Mother's counsel originally asked Dr. Miller to assess the relationships between mother and another son, as well as mother's relationship with G. As a consequence, Dr. Miller saw mother and G. together for 15 minutes and spent another 15 minutes observing mother, G. and his younger brother.