In re Trevor W. CA2/3 ( 2015 )

Filed 6/5/15 In re Trevor W. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re TREVOR W., A Person Coming B259599
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK80409)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
STACY M.,
Defendant and Appellant.
APPEAL from an judgment of the Superior Court of Los Angeles County,
Philip L. Soto, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
___________________________________________
Stacy M. (mother) appeals from the judgment terminating parental rights to her
son, Trevor W. Trevor was removed from mother when he was an infant. The
proceedings in juvenile court then went on for nearly five years before the court
terminated parental rights. On appeal, mother contends the court erred in terminating
parental rights because she had maintained regular contact with Trevor and the
well-being he gained from their relationship outweighed the benefits of adoption. We
disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
1. 2009
In April 2009, the Department of Children and Family Services (Department)
received a referral alleging that mother had threatened to kill Trevor if his maternal
grandmother (grandmother) did not babysit him. Trevor was three months old at
the time. The Department investigated and interviewed the family. Mother had
a history of psychiatric hospitalizations and was undergoing therapy for
depression. Grandmother said she had been Trevor’s primary caretaker since his
birth. Mother agreed to participate in a voluntary “family maintenance case” with
the Department, and to see a therapist and psychiatrist.
In October 2009, grandmother reported that mother had refused to care for
Trevor and so he was living with grandmother. In December 2009, grandmother called
the Department social worker and said mother had become enraged at grandmother and
was blocking her from leaving mother’s apartment. Mother also got on the phone with
the social worker and “scream[ed] profanities” at her. Trevor was in the car outside
with a relative during this altercation, and grandmother was eventually able to leave
with him.
Later that month, the Department filed a petition alleging that Trevor was at risk
of neglect under Welfare and Institutions Code2 section 300, subdivision (b), due to
1
We take judicial notice of our prior opinion in In re Trevor W. (B256525; filed
on January 15, 2015) [nonpub. opn.]. (Evid. Code, § 452, subd. (d).)
2
mother’s mental and emotional problems. The court detained Trevor and released him
to Whitman W. (father), who had moved into grandmother’s home.
2. 2010
In January 2010, the court sustained the petition and removed Trevor from
mother’s custody. The court released Trevor to father on the condition that he continue
to reside with grandmother or in another residence approved by the Department.
Mother was granted monitored visits with Trevor and the court ordered that both parents
be given family maintenance services.
In March 2010, father and grandmother reported that mother became angry
during visits with Trevor and they had asked her to leave. Mother’s therapist did not
recommend unmonitored visits for mother as mother was “not yet stable.” In the
following three months, father and grandmother reported that mother’s visits with
Trevor went well.
In July 2010, the court found that mother was in partial compliance with her case
plan and ordered the Department to continue to provide her with services. In August
2010, grandmother evicted father from her house, but Trevor continued to live with her.
In September 2010, mother’s case manager reported that her attendance in therapy had
been inconsistent and she had failed to keep her appointments with her psychiatrist or
take her psychotropic medication.
In October 2010, mother moved in with grandmother and grandmother promised
that Trevor’s contact with mother would remain monitored. Mother enrolled full-time
in cosmetology school, and by December 2010, grandmother reported that mother’s
“ ‘attitude and emotional issues seem[ed] to have improved for now.’ ”
3. 2011
In January 2011, grandmother told the Department social worker she had evicted
mother from her home. Grandmother said that the previous day, mother had raised her
voice at grandmother while they were in the car and had then grabbed Trevor when she
2
All further references are to the Welfare and Institutions Code.
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got out the car, saying “[h]e’s coming with me.” Grandmother called the police who
helped convince mother to give Trevor back to grandmother. The next day mother
yelled at grandmother and took Trevor into her room, in violation of the monitored
visitation order. Trevor was upset and cried for grandmother, and eventually
grandmother convinced mother to give Trevor to her. Based on these events,
grandmother evicted mother and obtained a restraining order against her.
In February 2011, Trevor moved in with father but spent the weekends with
grandmother. In May 2011, the court terminated reunification services for mother.
Mother continued to visit Trevor and, in October 2011, mother reported that she saw
Trevor once a week. In November 2011, mother showed up at Trevor’s day care center,
cursed at the day care provider, and told Trevor it was his last day of school. Trevor
began to cry and the day care provider said she was going to call the police. Mother
then left.
3. 2012
In May 2012, the Department filed a subsequent petition alleging that (1) two
weeks earlier father had left Trevor with mother, and father’s whereabouts had been
unknown since then, and (2) father’s abuse of marijuana rendered him incapable of
providing regular care and supervision for Trevor. The court ordered Trevor detained
from father and placed him with grandmother. The court then sustained the subsequent
petition and ordered reunification services for father.
In August 2012, the Department reported that mother continued to have weekly
monitored visits with Trevor for two to three hours. Trevor talked with mother during
visits and grandmother said he enjoyed visiting with her. In November 2012, the court
terminated father’s reunification services and set a section 366.26 hearing on the
termination of parental rights for March 2013.3
3
The section 366.26 hearing was thereafter continued multiple times to allow the
Department to complete the adoption home study, to allow mother “more preparation
time,” and to allow “supplemental report[s]” to be filed.
4
4. 2013
In February 2013, grandmother submitted an application to adopt Trevor, who
was then four years old. In March 2013, the Department reported that mother continued
to have weekly monitored visitation with Trevor and that there were no “problems or
concerns during the visitation.” The Department also noted that Trevor was very
bonded to grandmother and was thriving in her home.
In October 2013, mother filed a section 388 petition seeking reinstatement of
reunification services. Mother submitted evidence that she had completed parenting
classes and participated in individual counseling. She argued that Trevor was bonded
with her and his best interests would not be served by “further estrangement.” The
Department reported that Trevor said he wanted to live with mother and visit his
grandmother. The following month mother withdrew the petition.
5. 2014
In February 2014, mother filed another section 388 petition again requesting
modification of the court’s order that terminated her family reunification services. She
asked the court either to return Trevor to her or, in the alternative, to reinstate
reunification services and liberalize her visits to unmonitored “day, overnight and
weekends.”
In support of the petition, mother filed a declaration in which she stated that she
saw Trevor almost every day during monitored visits, and visited him for three to four
hours on weekdays and for the whole day on the weekend. She also stated she had been
living with her fiancé and his family for the past two years, and that the home could
accommodate Trevor.
Grandmother initially supported mother’s petition, but before the hearing she
opposed it. Grandmother said mother had cancelled her wedding, had “started using
derogatory language toward her,” and “[had] bec[o]me unreasonable again.” She said
“[t]he ugly side of old [mother] came back.” Grandmother also expressed concern that
mother would “take it out on Trevor and so she want[ed] to protect Trevor by adopting
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him.” Trevor now said “I do not want to move in with my mom and [her fiancé]; I want
to stay with [maternal] grandmother.”
In April 2014, the court held a hearing on mother’s petition. Mother testified that
she had visited Trevor every day for the last year or two, but during the last six weeks
her visits had decreased due to grandmother’s decision to restrict mother’s contact with
Trevor. The court denied the petition and continued the section 366.26 hearing to
August 2014.4
In August 2014, the Department reported that mother had visited Trevor six
times in the previous six months. Grandmother said mother had asked for more visits
but always “at the last minute.” The Department recommended that the court allow
grandmother to adopt Trevor. The section 366.26 hearing was continued to October for
a contested hearing.
The Department reported that in August mother visited Trevor once, and in
September she visited three times. At the section 366.26 hearing on October 1, 2014,
mother testified regarding her relationship with Trevor. She stated that she had visited
Trevor approximately every week since May 2014, and that during those visits, she
would “play games” with Trevor, help him with his homework, fix him meals and “if
[she’s] there before he goes to bed, [] try to help him with taking a bath . . . [and]
reading him a bedtime story.” Trevor was “always happy to see [her]” and did not want
her to leave at the end of visits.
Mother’s counsel opposed the termination of parental rights on the ground that
mother had regularly visited Trevor and the benefits of their relationship outweighed the
benefits of permanency for him. However, the court found that mother’s visits had been
“sporadic” as “there’s a number of visits that mother is claiming that she made
that . . . cannot be verified with the caretaker and the social worker or the child.” The
court further found mother had not “act[ed] as a parent in such a sufficient manner or
consistent or sustained manner that it would make sense to maintain this parent/child
4
Mother appealed and we affirmed the juvenile court’s denial of section 388
petition in In re Trevor W. (B256525; filed on January 15, 2015) [nonpub. opn.].
6
relationship.” Accordingly, the court terminated parental rights and ordered the
Department to prepare for Trevor’s adoption. Mother timely appealed.
CONTENTIONS
Mother contends that her parental rights were improperly terminated because she
had regularly visited Trevor and the well-being be gained from their relationship
outweighed the benefits of adoption.
DISCUSSION
Section 366.26 provides that if a trial court finds, “by a clear and convincing
standard, that it is likely [a child subject to dependency jurisdiction] will be adopted, the
court shall terminate parental rights and order the child placed for adoption.”
(Section 366.26, subd. (c)(1).) However, the court need not terminate parental rights if
“[t]he court finds a compelling reason for determining that termination would be
detrimental to the child due to . . . [¶] . . . [the parent’s having] maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship [the ‘beneficial relationship exception’].” (Section 366.26,
subd. (c)(1)(B)(i).) “After [a] parent has failed to reunify [with her child] and the court
has found the child likely to be adopted, it is the parent’s burden to show exceptional
circumstances exist. [Citation.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
We review the trial court’s ruling that the beneficial relationship exception did
not apply under the substantial evidence test. (In re Autumn H., supra, 27 Cal.App.4th
at p. 576.) “[W]e presume in favor of the order, considering the evidence in the light
most favorable to the prevailing party, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order. [Citations.]”
(Ibid.)
Under the first requirement of the beneficial relationship exception, the parent
must show that she maintained regular visitation and contact with the child. Here,
mother contends -- and the Department does not dispute -- that she regularly visited
Trevor. However, the record shows that mother’s visits during the months before the
hearing had become infrequent. The Department reported that mother had visited
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Trevor only about once a month between February and August 2014. Although mother
testified she had visited Trevor on a weekly basis since May 2014, the juvenile court
found that those visits could not be verified and that, in fact, mother’s visits had been
“sporadic.”
In addition, in order for the exception to apply, mother also had to show that she
satisfied the second requirement: that Trevor would benefit from continuing the
relationship. This prong of the beneficial relationship exception requires the parent
prove that “the relationship promotes the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new, adoptive
parents. In other words, the court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that the
child would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.
“Interaction between natural parent and child will always confer some incidental
benefit to the child. The significant attachment from child to parent results from the
adult’s attention to the child’s needs for physical care, nourishment, comfort, affection
and stimulation. [Citation.] . . . [¶] . . . The exception must be examined on
a case-by-case basis, taking into account the many variables which affect a parent/child
bond. [1] The age of the child, [2] the portion of the child’s life spent in the parent’s
custody, [3] the ‘positive’ or ‘negative’ effect of interaction between parent and child,
and [4] the child’s particular needs are some of the variables which logically affect
a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576 (italics
added).)
Mother contends that she had a “positive” relationship with Trevor and that the
record showed she “attended to [his] physical care and nourishment, comfort, affection,
stimulation, companionship and shared experiences.” Although mother’s relationship
with Trevor was positive in some respects and she attended to some of his needs during
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their visits, this was not sufficient to show that continuation of their relationship would
promote Trevor’s well-being to such a degree as to outweigh the well-being he would
gain in a permanent home with an adoptive parent.
Trevor was three months old when he was removed from mother, and five years
old at the time of the section 366.26 hearing. He had spent most of his life living with
his grandmother who provided him with stability and taken care of his physical and
emotional needs. Mother never progressed beyond monitored visits and did not provide
for Trevor’s physical needs other than occasionally making food for him and bathing
him during visits. Under the limited circumstances of monitored visits that had taken
place primarily on a monthly basis during the eight months before the hearing, mother
could not have provided any significant contribution to taking care of Trevor’s “needs
for physical care, nourishment, comfort, affection and stimulation.” (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.) Accordingly, substantial evidence supported the
court’s order terminating parental rights.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.*
WE CONCUR:
EDMON, P. J. ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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