IN RE S.F.

No. A149634.

In re S.F., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.H., Defendant and Appellant.

Court of Appeals of California, First District, Division Three.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.115

POLLAK, J.

L.H. (mother) appeals an order terminating parental rights to S.F., her now 11-year-old daughter. She contends the juvenile court erred in failing to apply the beneficial parental relationship exception to termination of parental rights. (Welf. & Inst. Code,1 § 366.26, subd. (c)(1)(B)(i).) We affirm.

Background

On October 14, 2015, the San Mateo County Human Services Agency (the agency) filed a petition alleging that S.F. came within the meaning of section 300, subdivisions (b) and (g). The petition was subsequently amended to withdraw the allegation under subdivision (g). In support of its allegation under subdivision (b) that mother failed to protect S.F. from substantial risk of harm, the agency alleged that mother left S.F. at a friend's home on October 9, 2015, and failed to pick her up the next day and that mother's whereabouts were unknown. The agency further asserted that mother's drug use, lack of supervision, and failure to provide for S.F.'s needs had resulted in three prior dependency cases involving her daughter. Relying on that history, the agency alleged mother demonstrated a pattern of failing to make provisions for S.F.'s care or to provide her with adequate supervision and that this pattern placed S.F. at substantial risk of harm absent court supervision.2

On October 16, 2015, the court detained S.F. and continued her out-of-home placement. The court ordered supervised weekly visits for mother.

On October 29, 2015, a court-appointed special advocate (CASA) was appointed for S.F.

On February 4, 2016, the court found the allegations of the amended petition to be true and continued the out-of-home placement. The court bypassed reunification services pursuant to section 361.5, subdivision (b)(13). A section 366.26 hearing was scheduled for May 31, 2016.3

A report filed for the section 366.26 hearing assessed S.F.'s adoptability. The report describes S.F. as a friendly, talkative, curious and energetic 10-year-old girl who enjoys singing, listening to music, reading, sports and being outdoors. Academically, she was described as an average student who struggles with certain subjects, such as math. She was described as in good health and developmentally on track. She had no required hospitalizations, major surgeries or regional center services; however, she is allergic to nuts and shellfish. The report indicates that S.F. has a pleasant demeanor, but can be competitive, stubborn and defiant. She has a "habit of talking back" and she has "gotten into trouble at school and in her placement homes for being disrespectful to others." It was noted that she was in therapy and gaining insight about how her behaviors and words affect others. It was expected that she would "gradually learn more appropriate coping skills over time."

At the time the section 366.26 report was written, S.F. was placed with her paternal great aunt. Her great aunt reported that S.F. was improving her social skills as related to her peers and teachers. She was "beginning to accept directions from her teacher without talking back." She was also adjusting well to the home environment and had been "more compliant." Although the social worker had discussed a permanent placement with the great aunt, the social worker concluded that it would be best to secure a different permanent home for S.F. to have a fully successful future. The report indicates that S.F. "has stated that she would like to grow-up in a forever home with a new family. She would like to be with a family of people who accept her for who she is and encourages her to succeed in activities that she enjoys."

The section 366.26 report noted that mother visited regularly with S.F. and that the visits were generally appropriate. There had been incidents, however, when mother violated the agency's instructions by discussing the case with S.F. The social worker also reported that S.F. has maintained regular visitation with her adult half-sister with whom she has a very close relationship.

The CASA supported the agency's adoption plan. In a report filed with the court on May 27, 2016, the CASA reported that S.F. had told the CASA that she wanted to find and be placed with a "forever family."

The May 31 hearing was continued to August 11, 2016, to allow time to comply with the requirements of the Indian Child Welfare Act, 25 United States Code section 1901 et seq. The agency submitted an addendum stated in advance of the August hearing. According to the addendum, S.F. remained placed with her great-aunt while the agency actively searched for an adoptive home placement.

On August 11, 2016, the matter was continued to September 29, 2016. The agency submitted a second addendum report in advance of the September hearing informing the court that S.F. had been placed with prospective adoptive parents on August 19, 2016. The agency reported that S.F. "literally jumped for joy and screamed in happiness for several minutes" when the worker told her about the adoptive family. The worker quoted the minor as stating, "I have not been able to be a kid. I have had to take care of myself and other people for my whole life. Now that I am going to be adopted, I get to be a kid again!" After having spent five weeks with the family it was reported in the addendum that S.F. said she was happy and well cared for and that she really liked each of her new adoptive parents. The agency acknowledged that mother and child clearly are bonded and care about one another but concluded that their connection is dysfunctional and does not outweigh the benefits S.F. would receive from permanency through adoption.

A treatment summary by S.F.'s therapist was also submitted to the court. The therapist reported that S.F. described feelings of sadness and guilt following visits with her mother due to comments that mother made about her new placement and the potential negative impact on their mother-daughter relationship. The therapist observed that S.F. frequently reminded her that she loved her mother, but also feels guilty and is scared to make her mother mad or to hurt her mother's feelings. Finally, the therapist noted that no substantial risk factors had been observed with the fost-adopt family and that S.F. felt happy in her new placement, despite occasional arguments and irritable moods.

S.F.'s CASA also submitted a report to the court for the September hearing in which the CASA wrote that after visiting with S.F. and the fost-adopt parents, "one can tell that they have a great connection" and that "[i]t's a great feeling to see her so happy and comfortable in her new home."

The fost-adopt parents also informed the court that it was their "intention to adopt [S.F.] if she is freed for adoption." The prospective adoptive parents reported that S.F. had transferred to a new school and that "[f]riends have been made in school and during swimming" and that "[s]he is also wonderful with our friends' younger kids at group meals and events." The prospective parents added, "We are impressed how quickly [she] has adapted to so much change. She has continued to have once a week visits with her sister, . . . and the connection that they have is very meaningful to us [and w]e are really enjoying our growing connection with [the sister] as well." While the prospective adopted parents acknowledged there were some "minor issues" at the new school, they were working on them "with positive reinforcement."

The section 366.26 hearing was conducted on September 29, 2016. S.F. testified in the judge's chambers. She described her visits with her mother as sometimes difficult and sometimes fun. It was difficult "[b]ecause she always wanted to talk about where am I staying and what am I doing and why don't you want to stay with me and saying stuff." It was fun because they played games and danced. If she could not live with her older sister, her second choice would be to live with her fost-adopt parents. Even if she were adopted, she wanted to continue to see her mother because it made her happy. It made her angry that she would not see her mother again if she were adopted. She would rather be in a less permanent home if that meant she could visit with her mother. She remembered screaming, "I'm going to be adopted" and "I get to be a kid again," when she was told an adoptive family had been found for her. By that, she meant she would not have to continue taking care of herself most of the time. Ultimately, she confirmed that she did want to be adopted by her fost-adopt family but that it would not be okay with her if she could no longer see her mother after the adoption.

The social worker testified that she had known the family since S.F.'s first dependency proceeding in 2006. She testified that mother's problems with drug use and neglect were the same as in 2006. The social worker opined that "the benefits of permanency and having a finalized adoption and growing up in a stable adoptive home far outweighs the relationship that [S.F.] and her mother have together." She described the relationship between mother and daughter as "negative" and "problematic." She testified that S.F. was "watching out for mom, being parentified, worried that whatever she says is going to impact her mother's feelings and that mom is going to be mad at her and hate her." By being adopted, S.F. would "be able to grow up in a family that interacts with her positively, where she has a routine that she can have full expectations of what the next day is going to look like, that she's going to have a meal at every moment that she feels hungry, that she's going to go to school and graduate on time and that she'll be able to build a loving relationship with new parents that will teach her the skills on how to communicate well with others and socialize and interact with other peers and other adults positively and well so that she can be a good citizen in the future." In response to S.F.'s testimony that she wanted to maintain a relationship with her mother, the social worker testified that it was very common for children to "fantasize" about having the birth parent move in with them and live with the new family. She testified that it was her "role as social worker to help kids get through those emotions and understand that life is a little different than that."

An expert in the area of attachment and evaluation of parental visitation testified that "[a]ttachment is the basic building block for children for all social development, emotional development, moral development and physical development." Based on her supervision of mother's visits with S.F., she characterized the attachment between mother and S.F. as "disruptive." She testified that a "disruptive attachment is an attachment that a child has with a parent where there has been inconsistent parenting where the parent over a period of time has been unable to meet the child's needs." When asked if S.F. had the capacity to develop a secure attachment with an adoptive family, she testified, "Absolutely. Yes."

Mother testified that during visits she and her daughter would play games, do homework, share food, and sing and dance. She testified that she believed it would be detrimental to her daughter's development to be without either of her natural parents. She testified that at the beginning of this dependency proceeding, S.F.'s older sister "brainwashed" S.F. to not want to see her.

After finding by clear and convincing that S.F. is adoptable, the court terminated the mother's parental rights. The court explained that the "great weight" of the testimony from the social workers and "all the writers of reports over the months" demonstrated to the court that "the benefits of adoption greatly outweigh the idea of moving the case to a totally different track simply to maintain in effect the visitation."

Mother timely filed her notice of appeal.

Discussion

1. S.F. is adoptable.

"The issue of adoptability in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings.'" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Id. at pp. 1649-1650.) We review a court's finding a minor is adoptable under substantial evidence test. (In re R.C. (2008) 169 Cal.App.4th 486, 491.)

Mother contends there is no substantial evidence to support the finding that S.F. is adoptable. We note briefly that the adoptability of S.F. was not disputed at the section 366.26 hearing. Indeed, the court expressly confirmed with mother's counsel that adoptability was not in dispute before finding S.F. adoptable. Irrespective of waiver, substantial evidence supports this finding.

Contrary to mother's argument, nothing in the record suggests that the minor's behavioral issues preclude a finding of adoptability. Given that S.F. had been in and out of dependency since she was three months old, it is not particularly surprising that she displayed some problematic behaviors in her initial placement. After removal from that placement and receiving some therapy, both S.F.'s great aunt and her fost-adopt parents reported that minor's interactions with her peers and teachers were improving and that she was adjusting well to the home environment. Other than S.F.'s minor behavioral problems, there is no evidence of developmental or mental health issues that would preclude a finding of adoptability. Accordingly, the adoptability finding is amply supported by the evidence of her improved social skills and the social worker's assessment that S.F. is a "friendly, talkative, curious and energetic 10-year-old girl" with a generally pleasant demeanor.

2. The parental exception to termination of parental rights does not apply.

"Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated unless the court finds `a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.'" (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314, citing § 366.26, subd. (c)(1)(B).)

Here, it is undisputed that mother maintained sufficient regular visitation with S.F. The court found, however, that the exception is not applicable here because the benefits of adoption "greatly outweigh" any benefit conferred by a continued relationship with mother. "A juvenile court finding that the relationship is a `compelling reason' for finding detriment to the child is . . . a `quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)

Contrary to mother's argument on appeal, there was no abuse of discretion in the court's ruling. From the start of these proceedings, S.F. has expressed a strong desire for a permanent home with someone other than her mother. At the time of her removal, she told the social worker that her mother was homeless, was on drugs and had no place for her and she did not want to be returned to her mother's custody. Two months after she had been removed, she reiterated to her social worker, "I don't want to go back with her. I want to stay here and be in this family because I want to grow up to be a good person and not be miserable[, and] I don't want to go back to that childhood because I want to go to school." She explained, "I like seeing her, I just don't want to live with her." When the social worker explained to S.F. that the agency was no longer seeking family reunification, S.F. responded, "I want a new forever family" and "I want to be in a new family and have someone else do the `mom' job." Following therapeutic visitation sessions, the social worker noted that S.F. "continue[d] to enjoy visiting with her mother in a therapeutic setting, and she continue[d] to report that she want[ed] a fresh start with a new, permanent home." At the time the agency made its permanent plan recommendation, S.F. told the social worker that she wanted to grow-up in a forever home with a new family who accepted her for who she is and encourages her to succeed in activities she enjoys. Her excitement at the news that a prospective adoptive family had been identified is well documented in the record.

Contrary to mother's suggestion, the court did not "discount" S.F.'s testimony nor was it necessary to find her testimony "untruthful" to proceed with the selection of adoption as the permanent plan. S.F. confirmed that she wanted to be adopted and was excited by the prospect of a permanent home in which she could be a child. Although she clearly loves her mother and repeatedly expressed her desire to continue seeing her mother, as everyone recognized at the hearing, these two desires are inconsistent. The court was tasked with determining what would be in S.F.'s best interests. Given the record before the court, we cannot say the court abused its discretion in concluding that the benefits of adoption outweigh S.F.'s desire for ongoing visitation with her mother.

Disposition

The order terminating parental rights is affirmed.

McGuiness, P.J. and Jenkins, J., concurs.

FootNotes


1. All statutory references are to the Welfare and Institutions Code unless otherwise noted.
2. The petition indicates that S.F.'s father is deceased.
3. Although mother timely filed a notice of intent to file writ petition, no petition was filed and the record was stricken by order of this court. (In re L.H. (March 17, 2016, A147616) [order].) Mother's request for judicial notice of the order filed in the prior appeal is granted. (Evid. Code, § 452, subd. (d).)

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