Filed 2/24/14 In re D.D. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
In re D.D. et al., Persons Coming Under the Juvenile C073083
Court Law.
BUTTE COUNTY DEPARTMENT OF (Super. Ct. Nos.
EMPLOYMENT AND SOCIAL SERVICES, J35568 & J35569)
Plaintiff and Respondent,
v.
JENNIFER D.,
Defendant and Appellant.
Jennifer D. (mother) appeals from the juvenile court’s order terminating her
parental rights as to minors D.D. and P.D. (Welf. & Inst. Code, § 366.26.)1 Mother
contends she established that the beneficial parental relationship to adoption applies.
(§ 366.26, subd. (c)(1)(B)(i).) We shall affirm.
1 Undesignated section references are to the Welfare and Institutions Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
Mother previously appealed from the August 2012 denial of her section 388
motion seeking to reinstate reunification services. (In re D.D. et al. (June 21, 2013,
C072125) [nonpub. opn.] (In re D.D.).) We draw the facts up to that stage of the
proceedings from our prior opinion, of which we take judicial notice.
The Butte County Department of Employment and Social Services (Department)
filed section 300 petitions as to D.D. (age 9) and P.D. (age 10) in November 2010,
alleging that mother’s substance abuse and recent suicide attempt had jeopardized the
minors’ safety. (In re D.D., supra, C072125, at p. 2.) Mother’s boyfriend was awaiting
sentencing on his latest criminal convictions. (Id. at p. 3.)
At the jurisdiction/disposition hearing in March 2011 the juvenile court ordered
continued foster placement for the minors and reunification services for mother. (In re
D.D., supra, C072125, at p. 3.)
Mother and her boyfriend became homeless in June 2011. (In re D.D., supra,
C072125, at p. 4.) Her progress in services was minimal, and in visitation she related to
the minors more as a peer than as a parent. However, mother had previously maintained
sobriety and provided structure to the minors for eight or nine years, and had worked at
jobs in the social services field. Although the minors had bonded with their foster
parents, mother and the minors loved each other and they wanted her to be a parent to
them again. In light of these facts, the juvenile court ordered further services at the six-
month review hearing. (Id. at pp. 3-5.)
At the contested 12-month review hearing, the juvenile court terminated mother’s
services and set a section 366.26 hearing. Despite a history of domestic violence, mother
had remained with her boyfriend until November 2011, when she entered a women’s
shelter. Even after that, her participation in services was spotty, visitation remained
supervised, and she could not provide housing for the minors, who continued to do well
2
in foster care. An adoptions referral had been completed and the case had been assigned
to an adoptions specialist. (In re D.D., supra, C072125, at pp. 4-5.)
In June 2012, mother filed a section 388 petition seeking reinstatement of
reunification services and increased visitation, alleging that she had participated in
services on her own, regularly attended 12-step meetings, engaged in therapy for
codependence and addiction, and completed parenting classes. Mother’s boyfriend, who
had been incarcerated since November 2011, was about to be sentenced to prison. (In re
D.D., supra, C072125, at p. 5.) An amended petition added that mother had obtained
stable housing and had begun attending Butte College. (Id. at p. 6.) The juvenile court
held a hearing on the amended petition on August 23, 2012. (Ibid.)
Mother testified at the hearing that she had been sober since November 2011,
attended Alcoholics Anonymous and Narcotics Anonymous meetings and a recovery
program called Stepping Stones, and tested negative for drugs five times since her
services were terminated; she had also pursued parenting classes and counseling. (In re
D.D., supra, C072125, at pp. 5-6.) But she had stopped going to Stepping Stones and
was not now in therapy because they would have conflicted with her class schedule. (Id.
at pp. 6-7 & fn. 5.) She had not seen her ex-boyfriend since April 2012, but gave him
emotional support in June 2012 when his son died. (Id. at p. 7.) Mother thought
visitation went well, but felt frustrated that she could not speak freely to the minors. She
thought they needed therapeutic counseling. (Id. at p. 8.)
The minors’ court-appointed special advocates (CASA’s) testified that the minors
enjoyed mother’s visits, but did not want to return to her custody. (In re D.D., supra,
C072125, at p. 9.)
The juvenile court denied the section 388 petition because mother’s failure to
continue with Stepping Stones and counseling and her continued contact with her ex-
boyfriend showed her circumstances had not changed enough to justify reinstating
reunification services. However, the court permitted the Department to increase
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visitation and to begin therapeutic counseling for the minors if their therapist approved.
(In re D.D., supra, C072125, at pp. 9-10 & fn. 7.)
The section 366.26 report, filed in August 2012, recommended terminating
mother’s parental rights and choosing a permanent plan of adoption for both minors. The
report stated that the State Department of Social Services’ Adoptions Services Bureau
had found the minors adoptable and recommended adoption as the permanent plan, but
did not attach the bureau’s assessment.2
According to the minors’ counselor, P.D., the older minor, was comfortable with
adoption by the current foster family and could accept a decrease in mother’s visits after
adoption, but was “uncertain about the possibility of being returned to . . . mother.” D.D.,
the younger minor, felt a “deep and meaningful connection with the foster family,” and
“the presence of a male parental figure in the home [was] very important to him,” but he
was “emotionally fragile,” loved mother very much, and would prefer more frequent
contact with her.
Mother’s visits remained supervised, due to continuing concerns about her making
“inappropriate” statements to the minors which caused them to feel sorry for her, and
whispering to them at the ends of visits. She did not believe the minors should be in
foster care and remained convinced they would be returned to her, despite the court order
2 The assessment (originally dated May 2012, but filed with the juvenile court in
January 2013) stated: The minors, 11 and 10 years old respectively, were placed together
in the foster home where they had lived since removal from mother’s custody. They
were happy with their caregivers and wanted to be adopted by them, although there was
still a bond of love and affection between the minors and mother. The minors enjoyed
mother’s visits, but the foster mother said the minors had accepted the decrease in visits
without a problem. The caregivers were committed to adoption and appeared suitable as
an adoptive family, although a home study had not yet been done. They did not want to
consider guardianship as an alternative because they feared that mother, who felt a deep
sense of grief about the possible termination of her parental rights, would continually
challenge a guardianship arrangement.
4
to develop a permanent plan. She had once confronted the foster mother and accused her
of lying. Mother had exhibited a “lack of boundaries” by encouraging the minors to
leave school during school hours to meet with her and by establishing residence directly
across the street from the minors. She had been terminated from Stepping Stones for
noncompliance. She visited her boyfriend weekly in jail and would not say that he would
not be a part of her life after he left prison. She had recently been convicted of petty theft
and was now on probation for three years. She had not demonstrated that she could meet
the minors’ needs or provide them a safe and nurturing home.
In August 2012, D.D.’s CASA recommended “adoption or . . . a permanent
placement” for D.D. D.D. had made “major progress both academically and
emotionally” in the present foster home. Although mother had “made improvements,”
she was not reliable and stable enough to meet D.D.’s needs.
On August 31, 2012, the juvenile court granted mother’s application for a bonding
study.
In September 2012, P.D.’s CASA reported that during visits mother persistently
revealed her emotions about the future, disregarding the minors’ feelings and the
visitation supervisor’s warnings. The CASA recommended reducing mother’s visits.
The section 366.26 hearing, originally scheduled for September 27, 2012, was
repeatedly continued to await the bonding study.
The bonding study, dated December 18, 2012, was prepared by licensed
psychologist Dr. Dawn Blacker, based on review of case records, psychological testing,
and interviews with mother, the minors, social workers, the foster mother, and the
minors’ older sibling K.D. Dr. Blacker stated that mother and the minors had a strong
and positive relationship, and both minors wanted to see mother more often; however, the
minors had also established a close relationship with the foster parents and felt “highly
conflicted about their future placement.” P.D., who was over the age of 12, said he
would accept adoption, but would prefer to spend half his time with mother and half with
5
the foster parents. Both minors would benefit from continuing their relationship with
mother. Adoption might seriously jeopardize the minors’ relationship with mother and
be significantly detrimental to their emotional functioning. Despite the minors’ wishes to
see mother more often, the foster mother felt that after adoption mother’s visits should be
much less frequent. The benefits of legal guardianship would far outweigh any
disadvantages to the minors’ wellbeing and permanent stability from not being adopted;
therefore, legal guardianship would be preferable to adoption.
On January 3, 2013, relying on the bonding study, mother filed a new section 388
petition, requesting the return of the minors to her custody.
On January 4, 2013, the juvenile court summarily denied the section 388 petition
on the ground that the proposed change of court orders did not promote the minors’ best
interest.
On January 9, 2013, the contested section 366.26 hearing began. Dr. Blacker
testified as follows:
Mother did not pose a physical or emotional threat of harm to either minor. There
would be no risk in eventually allowing her to have unsupervised visits with the minors,
although visits should remain supervised at first because of concerns over mother’s
previous behavior.3 It would be appropriate to continue monitoring visits for four to six
months.
Older children in dependency cases usually do not want to maintain ties with their
biological parents. Given the minors’ ages, the strength and quality of their relationship
with mother was unusual. The visits between mother and the minors that Dr. Blacker
observed went very well; the overall quality of visitation was “extremely positive.”
3 Dr. Blacker acknowledged that it could be confusing to the minors and harm their
relationship to their foster parents if the minors were put in a permanent plan with the
foster parents and then started overnight visits with mother.
6
If the minors were placed in legal guardianship, mother should receive two visits a
month for two to three hours at a time, increasing after a while to three visits a month.
The foster mother wanted mother to visit only once every three months, which would be
detrimental to the minors.4
The minors should be engaged in individual therapy at least once a week,
preferably with different counselors. Both were “extremely shut off and disconnected”
during interviews; D.D. cried half the time during his interview. They needed help to talk
about their feelings. Furthermore, according to their behavior questionnaires, D.D. was
at risk for “aggression, conduct problems, anxiety, and depression”; P.D. was at risk for
aggression.5 Three to five sessions of family therapy with mother and the minors
together would also be desirable to address the minors’ concerns about being separated
from mother and no longer in her care.
Termination of parental rights and adoption would be detrimental to the minors
because the likelihood of continuing contact with mother was extremely low, and the
detriment of severing that relationship outweighed the benefit of permanency. The
benefits of legal guardianship would outweigh the benefits of adoption.
Dr. Blacker did not directly assess the bond between the minors and the foster
parents, but it appeared “positive and strong.” If mother’s visitation were increased, it
could affect the minors’ ability to bond with the foster parents. There was a risk that
continued contact with mother could impact the minors’ ability to have permanence with
that particular foster family. Mother had “struggled” with the idea of allowing the foster
4 Dr. Blacker admitted that her report stated that the foster mother wanted visits
only every four months, and that it was “possible” she had a bias against the foster
mother. She denied that she actually had such a bias, however.
5 Dr. Blacker conceded that the scales on the questionnaires did not reveal
“clinically significant” risk levels for either minor.
7
parents to act as the minors’ actual parents; however, Dr. Blacker thought mother would
be able to accept this idea in the future.
Dr. Blacker acknowledged that social worker Yvonne Johnson supported adoption
as a permanent plan, partly because of the strained relationship between mother and the
foster mother, and considered legal guardianship undesirable.6 Dr. Blacker also
acknowledged that Allison Juers, who transported the minors to visits, favored adoption
and permanency for the same reasons.
Called as a hostile witness by mother, Johnson testified that she was assigned to
the case in March 2012 after reunification services ended. She had considered legal
guardianship as well as adoption, but finally preferred adoption because she thought
mother would “challenge guardianship and sabotage permanency.” Mother continued to
discuss placement and termination of parental rights with the minors, creating a conflict
of loyalties for them.
From Johnson’s discussions with the foster parents, she believed that after
adoption they would permit future contact between mother and the minors if the minors
wanted it and mother could behave appropriately during visits. Johnson had concerns
about increasing contact as Dr. Blacker recommended, because previous discussions with
mother had not caused her to stop saying inappropriate things and breaking down
emotionally during visits. Largely relying on the adoptions assessment, Johnson thought
adoption would provide more permanency and be healthier for the minors than legal
guardianship.
Before the section 366.26 hearing resumed, the Department submitted a status
review report dated February 14, 2013. The report stated that visitation remained
6 As evidence of the strained relationship, counsel cited an incident in which mother
followed the foster mother into her driveway in a car, and another in which mother called
the foster mother a liar. Dr. Blacker did not deny that these incidents occurred.
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supervised “due to [mother]’s inability to demonstrate emotional stability and appropriate
boundaries during visits.” The foster family was “traumatized” by mother’s behavior
over the last two years and would not consider a guardianship for fear of mother’s
continued harassment. Mother still refused to accept that foster placement was necessary,
did not support permanency planning for the minors, and had made clear that only their
return to her care would satisfy her; she completely failed to understand that they needed
a stable home life. The minors had not received further counseling and were not
interested in doing so; they had shown no behavioral problems suggesting emotional
instability. With the foster parents’ approval, the foster family agency was arranging for
supervised visits, paid for by the agency, for one year if the minors were adopted.
On February 26, 2013, the next court date for the section 366.26 hearing, Dr.
Blacker testified that she had now read the adoptions assessment (not yet filed with the
court when she prepared her study or when she previously testified), and it did not change
her opinion in any way. The assessment’s statement that the minors wanted to remain
with the foster parents and be adopted by them was inconsistent with what the minors had
said to Dr. Blacker in interviews subsequent to the assessment; at that time they wanted
more ongoing contact with mother and were “very ambivalent” about adoption. From
what the foster mother had told her, Dr. Blacker continued to believe that the foster
mother would oppose increasing visitation and contact by mother after adoption. In
response to questioning by the juvenile court, Dr. Blacker opined that the minors’
reluctance to speak about their feelings and wishes stemmed from protectiveness toward
both mother and the foster parents.
After hearing argument from counsel and taking the matter under submission, the
juvenile court ruled on February 28, 2013. The court stated:
“The Court did review the material that was referenced on the 26th and considered
the testimony. The Court is mindful that at the time of the initial 26 report, which was
filed on August 10th, 2012, there’s reference there about valuations of mental and
9
emotional state of the children . . . . With respect to P[.D.], that he was asked about his
feelings on adoption. That he enjoys the visits the way they currently were established.
He believed decreasing visits after adoption was acceptable. He was comfortable with
his current family. Uncertain about the possibility of return to his mother. D[.D.]
presented as emotionally fragile, and there was not much discussion there. The Court
also is mindful that the children have been in the same placement since their removal.
The visits had been going well for the most part with the mother, and that decreased
during the period of time of preparing for permanency after April of 2012.
“Thereafter the reports reflect the concern about inappropriate comments made by
mother to the children in April and July of that year. The adoption assessment was
apparently authored in May, filed in January[,] though, of this year. But in that
assessment it did say that the boys were comfortable with the visits with their mother and
happy with the idea of adoption, and the reports reflect subsequently meeting with mother
to discuss the permanency [and] that mother was extremely emotional with the intent to
contest the plan of adoption. And the social worker’s report details some of the
presentation by mother of involvement in services that either didn’t come to fruition, or
were not entirely accurate.
“Then by the time the children were interviewed in November by Dr. Blacker, it
appears to the Court the children were conflicted and emotionally guarded and uncertain
as to their feelings either way about adoption or living with their mother. And that
appears to the Court to be the derivative effect of the length of the proceedings and the
repetition of inquiry on the subject and the age of the children.
“The Court . . . does feel that mother has not met her burden such that the Court
would forego the plan of adoption, which is recommended for the permanent plan for the
children. The Court views the children’s expression of concern and affection for their
mother, but does not see that there is substantial evidence that would support a finding of
detriment to the children if the Court were to terminate the parental rights.
10
“The Court is not persuaded that the benefit to the children and the relationship
they have with their mother is a substantial, positive, and emotional one such that it
would outweigh the benefit they would receive from adoption. That is from the
permanence that adoption brings particularly in this setting where the children have been
in the same place since removal. They are together as siblings, they have access to other
siblings. Their needs are met, they’re thriving in school, and it is reflected in the reports
that the foster parents and [pro]spective adoptive parents understand the importance of
post adoptive contact with their mother.
“So the Court is going to follow the recommendation that is presented by
Children’s Services with respect to the 366.26 report filed in August . . . 2012.”7
The court thereupon terminated the paternal rights of mother and the alleged
fathers and referred the minors for adoptive placement.
DISCUSSION
Mother contends the juvenile court erred by finding she had not established the
beneficial parental relationship exception to adoption. We disagree.
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a minor
child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] If the court finds the child is adoptable, it must terminate parental rights
absent circumstances under which it would be detrimental to the child.” (In re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368.)
Under certain limited circumstances, the court may find a “compelling reason for
determining that termination [of parental rights] would be detrimental to the child . . . .”
(§ 366.26, subd. (c)(1)(B).) One of these is the beneficial parental relationship exception,
7 The juvenile court then orally denied mother’s section 388 petition dated
January 3, 2013.
11
under which the parent has the burden of showing that he or she has maintained regular
visitation and contact with the child, and the child would benefit from continuing the
relationship. (§ 366.26, subd. (c)(1)(B)(i); In re C.F. (2011) 193 Cal.App.4th 549, 553
(C.F.).) The benefit to the child must promote the child’s “well-being . . . 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575
(Autumn H.); accord, C.F., supra, 193 Cal.App.4th at p. 555.) Even frequent and loving
contact is not sufficient to establish this benefit, absent a significant, positive, emotional
attachment between parent and child. (C.F., supra, 193 Cal.App.4th at p. 555;
Autumn H., supra, 27 Cal.App.4th at p. 575.)
“Because a section 366.26 hearing occurs only after the court has repeatedly found
the parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine
D.).)
As the parent must establish the existence of the factual predicate of the claimed
exception, and the juvenile court must then weigh the evidence and determine whether it
constitutes a compelling reason for determining detriment, substantial evidence must
support the factual predicate of the exception, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (In re K.P. (2012)
203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
12
“On review of the sufficiency of the evidence, we 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.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) “ ‘[E]valuating the
factual basis for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling. . . . Broad deference must be shown to the trial judge.’ ”
(Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
It is not disputed that mother maintained regular visitation and contact with the
minors and that mother and the minors had a close and loving relationship. Therefore,
we focus on the second prong of mother’s burden: whether she established a compelling
reason to find that the detriment to the minors from severing the parental relationship
would outweigh the benefit of stability and permanence to the minors from adoption by
their current foster family. Viewing the evidence most favorably to the juvenile court’s
ruling, we conclude mother did not do so.
Given the Legislature’s strong preference for adoption, where adoptable minors
are placed with a prospective adoptive family to which they have bonded and which
meets their needs, that almost ends the discussion. (Jasmine D., supra, 78 Cal.App.4th at
p. 1350.) Such is the case here. The minors have lived with their foster family since the
dependency began, over two years ago. The foster parents wished to adopt and were well
qualified to do so. They consistently met all of the minors’ needs. The minors were
closely bonded to the foster family, performed very well in school, and showed no
significant emotional disturbance. With one exception, everyone professionally involved
in the latest stages of the case thought adoption was the best plan, not only because it
gave the minors permanence and stability but because mother’s conduct and attitude up
to the time of the hearing aroused fear that she would challenge any other arrangement if
she retained the right to do so. Although the minors seemed ambivalent about adoption,
they did not oppose it, and the juvenile court reasonably assessed their ambivalence as
13
partly due to how long the proceedings had already lasted and partly due to the emotional
pressure unfairly put on them by mother.
It is true that Dr. Blacker dissented from this consensus, but the juvenile court was
not required to give her opinion great weight. She was mother’s hired advocate. Her
bonding study did not study the bond between the minors and the foster parents. Though
denying bias, she construed the evidence most favorably to mother and most unfavorably
to the foster family. On the one hand, she interpreted the foster mother’s ambiguous
statement about increased future visitation and contact as proof that the foster mother
would oppose them, regardless of the surrounding circumstances. On the other hand, she
dismissed mother’s documented hostility to the foster family and to any future plan that
did not include getting the minors back by speculating groundlessly that mother’s attitude
was bound to change. Finally, Dr. Blacker’s recommendation of legal guardianship
discounted both the statutory preference for adoption and the evidence that mother would
refuse to respect the foster parents’ authority as legal guardians.
Mother asserts that this case is like In re Amber M. (2002) 103 Cal.App.4th 681
(Amber M.) and In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), where appellate courts
found that the beneficial parental relationship exception to adoption had been established.
We disagree.
In Amber M., all the experts except the social worker agreed that the mother’s
relationship to the children was so close and beneficial that it would cause the children
detriment to terminate the parental relationship, and she had done virtually everything
asked of her to regain custody; the social worker, the only dissenter, “provided no more
than a perfunctory evaluation of Mother’s relationship to the children.” (Amber M.,
supra, 103 Cal.App.4th at p. 690.) Here, the experts, except for Dr. Blacker, favored
adoption and set forth detailed reasons why adoption was in the children’s best interests.
In S.B., the juvenile court found that the father had fully complied with his case
plan and the minor (much younger than the minors here) would benefit from continuing
14
her relationship with him, but the court terminated parental rights because the minor had
a strong relationship with her caretaker, who promised to allow continued visitation; the
appellate court held that these were insufficient grounds to terminate a genuinely
beneficial parental relationship. (S.B., supra, 164 Cal.App.4th at pp. 293, 298-301.) By
contrast, mother here had not done everything asked of her to regain custody; nor was her
relationship to the minors purely beneficial. Unwilling to accept the fact that she would
not regain custody, she put improper emotional pressure on the minors, trying to make
them feel torn between her and the foster parents, whom she repeatedly challenged and
whose authority over the minors she refused to respect.
Under all the circumstances, Amber M. and S.B. do not support mother.
DISPOSITION
The order terminating parental rights is affirmed.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
DUARTE , J.
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