ion.
The foster mother told the CASA she still wanted to adopt the minor and to continue with the adoption home study, but Scott had made it clear that he did not want to be adopted and if the adoption were to occur he would run away. He was insisting that he wanted to live with Mother and nowhere else, and at one point he did make an attempt to leave. While he and the foster mother were out shopping she caught him heading for an exit and when asked where he was going he stated he was going to get a bus. She was keeping a more watchful eye on him.
Scott's behavior had regressed to growling and biting, including biting his foster sister, and he had begun lying. He lied about biting the foster sister, saying a boy told him to do it. He made sexual remarks to a girl at his school and denied to persons at school that he had made the remark, although he did admit to the foster mother later that it was true. He had a discussion with the foster mother about the seriousness of the matter and a session with his therapist, and he apologized to everyone. Mother's medical condition was taking its toll on the minor. He was not able to sleep because he was worried about her, and thus was waking up tired in the morning.
The foster agency social worker continued to monitor the weekly visits between Mother and Scott. The worker reported she tried to stay close to them and she did not hear Mother say anything about the adoption. However, there were times when she was not in close proximity to them. Mother denied having said anything to Scott about adoption. The social worker was certain Scott could continue to have a relationship with Mother if he were to be adopted by the foster mother. The Department adoption social worker stated the home study was on hold. The worker stated Scott told her that Mother told him he does not have to be adopted. Scott stated he hated the judge and it was the judge's fault that he does not live with Mother. The worker was not sure if Scott understood the severity of Mother's medical condition, but Scott was upset that Mother had lost her hair and was wearing a scarf. The worker stated the foster mother was hesitant about adoption but did want to proceed with the home study.
Mother stated the CASA was promoting the adoption, and she and Scott did not want it. Mother stated she had done the things required of her (parenting classes, counseling, etc.), and she did not understand why the minor has not been returned to her care. The CASA observed that Mother and Scott have an "extremely close bond" and the stress of the adoption and Mother's medical condition could be overwhelming him, and therefore the adoption should be temporarily placed on hold. The CASA recommended that the section 366.26 hearing be taken off calendar while Scott received appropriate therapeutic services to help him with Mother's illness and transition to adoption. The adoption home study was approved on May 13, 2009.
The Department reported that Scott graduated from his wraparound program and the foster mother was given counseling referrals so that he could resume therapy. Because of his autism Scott requires an environment that provides him with structure and support. He is considered mildly autistic. The foster mother was worried about Scott's threat to run away because he is "very savvy as to the bus system" and thus is capable of running away if he wants to. She was also concerned about the effect adoption would have on him. Scott had been living with her for about two years. The social worker's report states Scott has thrived because of the foster mother's efforts with him and with his treatment and school, including her ability and willingness to use public services to meet his needs. Scott told the social worker that he wants to continue living with the foster mother and visiting with Mother.
The foster agency social worker who monitors Scott's visits with Mother reported that Mother was being more appropriate with the minor during the visits in that she tended to not reward him if he had a difficult week at school or at the foster home whereas before she would always reward him regardless of his inappropriate behavior. Mother was also better about reprimanding him when he was not following directions and correcting his actions. Scott's behavior was also more mature during the visits. They remained interactive at the visits even though Mother is physically challenged and not able to participate in most of Scott's physical activities. The foster mother told the Department social worker that Scott loves Mother and looks forward to their visits. The foster mother stated she understands the minor needs Mother in his life and the foster mother would make every effort for Scott to stay in contact with Mother if the court terminated Mother's parental rights.
It was not clear to the Department social worker why Scott no longer wanted to be adopted but it was clear that Scott was adamant about the issue. Based on Scott's feelings and his threats to run away if he is adopted by anyone, the Department did not recommend that parental rights be terminated, and it requested more time to investigate whether adoption would be the best permanent plan for the minor. That request was honored and the May 14, 2009 section 366.26 hearing was continued to October 22, 2009. The court ordered that Scott be enrolled in therapy with a licensed therapist forthwith and referred for wraparound services. The court stated its belief that "the problem is Mother's visits need to ensure that they are within ear shot." When Scott's attorney suggested that the visits be at a Department office because Scott does not stay in one place at the park the court ordered the Department to consider moving the visits to another location.
f. Final Reports and Hearings
The CASA's and Department's final reports were for the October 22, 2009 section 366.26 hearing. The CASA's report states Scott was in a fifth grade special education class. He told the CASA he was doing well and was happy and he related the nice time he had on his birthday outings. He stated he was visiting with Mother every week and she was doing well. He stated he still wants to live with Mother but if he cannot he wants to live with his foster mother.
The foster mother reported things had settled down at her home since Scott began working with a therapist and behaviorist. Scott was no longer acting out and was well behaved except for some recent incidents of his lying to her and occasional anger issues, and he did acknowledge the lies when she asked him directly about them. She stated she had resumed having conversations with Scott about adoption because she was ready to move forward with it, and he was handling it much better than before. She stated Scott seemed to understand that he would not be living with Mother again and he wanted to continue living with the foster family. She said she told him that if she adopts him he will be able to continue to see Mother regularly. She reported Scott continued to look forward to his weekly visits with Mother.
Scott's therapist reported she was able to have uninterrupted time with Scott because she picked him up and drove him to his visits with Mother and he was open and candid with her. Although his anger was easily triggered he had better management of it. He appeared to have guilty feelings about being removed from Mother's care when he ran away. He continued to have regressive behavior on his visits with Mother. The therapist was spending time at the visits and reported that Mother appeared to be taking better care of herself, and Mother was working with a parent partner at the therapist's agency and was holding out hope of Scott being returned to her care. The parent partner told the CAS A her goal was to listen to Mother's concerns, "help her with this situation," and help her work with "all of the parties involved." She stated she explained to Mother that it was a great opportunity for Scott to be adopted by the foster mother.
The CASA opined that it is imperative that when Scott is adopted he maintain contact with Mother as it is clear that Mother and Scott are extremely close and it would be detrimental for their relationship to be disrupted. The CASA stated it is in the minor's best interest to receive a permanent home with the foster mother "while maintaining the close bond he shares with [Mother]."
The Department social worker was of the belief that during Mother's visits with Scott she was telling him he would be coming home to her and that caused him to refuse to be adopted, but since visits between Mother and Scott were moved to the foster family agency office and were being more closely monitored "there has been significant improvement." The social worker's report states Scott believed that adoption was preventing him from returning home to Mother.
A team decision meeting was held on July 29, 2009, to reinstate wraparound services for Scott. At the meeting Mother stated she wanted the minor returned to her care, but she did agree that he should remain with the foster mother if he were not returned to her. In early September 2009 the foster mother reported that Scott had stabilized with the wraparound services and the support of Mother. She stated he was no longer making threats to run away and she and Scott were ready to move forward with adoption. Later that month the foster mother reported that when Scott was talking about adoption he stated he wanted to be adopted because he did not want to go to another house. He wanted to remain with the foster mother and continue visiting with Mother.
The October 22 hearing was continued to November 16 to allow for more hearing time and for Scott to be present. Based on Scott's statements that he wanted to be adopted because he did not want to go to another house, and on the foster mother's assurances that Scott can continue to have contact with Mother if he is adopted, the Department recommended that the parents' parental rights be terminated and adoption proceed. However, in a "last minute information for the court," the Department informed the court that during the Department social worker's interview with Scott in early November 2009, the minor was asked for his feelings about the foster mother's desire to adopt him and Scott stated that he had changed his mind about adoption and if the foster mother did adopt him he would run away because he wanted to live with Mother. Scott stated Mother could care for him because his uncles were no longer living with Mother. When the social worker told him he could continue to see Mother if he were adopted, Scott continued to state he did not want to be adopted. He stated he could think of no reason to change his mind about that. He added that "the judge" had stated that Mother was doing what she was supposed to do and had stated that he, Mother and the foster mother could go places together. He acknowledged that he did feel good living with the foster mother, that he loved her, and that he knew the foster mother loved him.
The social worker noted that Scott has always maintained that he wants to live with Mother, and that he told the adoption social worker he only wants to stay with the foster mother if he cannot live with Mother. The social worker opined that Scott believes it is adoption that will prevent him from living with Mother and he does not understand that he will not be returning to Mother's care if the foster mother does not adopt him. The Department continued to recommend that he be adopted.
At the November 16 hearing Scott and Mother gave testimony, with Scott testifying in chambers. Scott testified he visits with Mother every week and it is good. They play with toys, watch movies and television, and eat if she brings food. He enjoys his visits with Mother, he looks forward to seeing her and he is happy to see her. He stated he wants to continue living with the foster mother and wants to continue having visits with Mother. Asked who he would want to live with if he had his choice, he stated he misses Mother but if he cannot go back to her home then he would live with the foster mother. When the court indicated that the questions for Scott were finished, Scott spontaneously stated that he wanted to be adopted so that he, Mother and the foster family could all "go somewhere fun." Asked what it means if someone is adopted, Scott answered: "I forget." Asked what would happen if he were adopted, he answered that he would "stay with her forever." Asked if that would be good or bad, he stated: "Good. I don't want to go to that other house with that German shepherd."
When the attorneys were presenting their arguments to the trial court on the issue whether parental rights should be terminated, Father's attorney noted that when Scott told the court he did not want to go to the "other house with that German shepherd," he clenched his fist and "his mouth sort of keyed up." Scott's reference to the "other house" is apparently to the home of one of the foster mother's friends. In December 2008 the foster mother stopped at her friend's apartment for a visit. She had her two daughters and Scott with her. When the foster mother asked to use the friend's bathroom it was discovered that the friend's puppy had soiled the bathroom floor. The foster mother and one of her daughters went next door to use a neighbor's bathroom and the other daughter went to help clean up the puppy's mess. Scott was watching television in the living room. When the foster mother and daughter returned Scott was missing. He apparently has a strong aversion to unpleasant odors and so he had left the apartment and walked to the street because he was overwhelmed by the odor of the dog relieving itself, and because he could not find the foster mother and her daughters. A concerned citizen found him and took him to the police. The foster mother called the police to report him missing and reunited with him at the police station.
When the hearing resumed in the courtroom Scott was excused from the hearing. Mother testified she had been visiting Scott every week for two hours for two years and she has only missed one visit. When they visit he runs to her and jumps and gives her a bear hug. She calls the minor "Scottie" during the visits because he likes to be called that now. During their visits they watch movies and she brings him treats if he behaves. She and Scott discuss his behavior and she explains to him that whether he will receive treats the next week will depend on how he has behaved. She also assists the foster agency social worker and some of the staff members with the issue of Scott's behavior. When the visits end she and Scott have "more than one hug" and they tell each other they will have another visit the following week. Scott calls her "Mom."
In addressing the issue of a permanent plan for Scott, Father's attorney observed that Mother had only missed one visit with Scott, and Mother and Scott have a strong bond. The attorney argued that Mother is not just a playmate at her visits with the minor, she addresses his behavior in her role as a parent. Noting that Scott loves where he is living and loves both Mother and the foster mother, the attorney argued that the only way to maintain both the mother-son bond and Scott's bond with the foster mother, so that there would be no question that both bonds would be preserved, would be for the court to order a legal guardianship for Scott. The attorney argued that this is "one of those rare cases" where a parent has overcome the Legislature's preference for adoption and demonstrated a statutory exception to termination of parental rights in that the relationship between Scott and Mother must be protected and a legal guardianship is the means of doing that. Mother's attorney joined in Father's argument and added that although Scott may understand he cannot go back: to living with Mother, nevertheless when he spontaneously told the court that he wanted to be adopted, he explained that the reason he wanted to be adopted was so that he and Mother and the foster mother could do things together, and thus his concept of adoption is that it includes Mother. The attorney noted that although there might be an informal agreement for Mother to have continued visitation, that arrangement could change.
The court observed that Scott's concept of adoption appeared to be that "the other people" would not be involved anymore (such as monitors) and it would be him and the foster mother and Mother and they could do things together. Mother's attorney argued that a legal guardianship would take care of the issues and Scott could maintain his visits with Mother. Regarding the Legislature's stated preference for adoption, the attorney argued that the section 366.26, subdivision (c)(1)(B)(i) parent-child relationship exception to termination of parental rights applies in this case because Mother and Scott have maintained regular visitation and he would benefit from continuing their visits. The attorney asserted that Scott's statement that he would run away if he were adopted demonstrates that continuing the parent-child relationship would be a significant benefit to him. Scott's attorney argued that Mother is not able to assume a parental role because of her limited ability to provide for his needs as a special needs child, and adoption outweighs the benefits of a legal guardianship since a guardianship would only provide for permanence until Scott is 18.
The court found that Mother does have a parental role with Scott in that during their visits they do not simply play and enjoy each other's company but rather, Mother also takes a hand in instructing him on behavior issues. Nevertheless, the court found that Mother's parental role and relationship with Scott do not outweigh the benefit and permanence of adoption. The court stated the minor needs consistency and stability in his life and the consistency and stability that adoption will provide "outweigh the benefit of continuing the relationship." Finding that Scott is adoptable, the court terminated the parents' parental rights. The court stated the foster mother "has discretion to permit ongoing visits with the mother."
Mother filed a timely appeal from the order terminating her parental rights.
CONTENTIONS ON APPEAL
Mother contends that Scott never understood that adoption requires termination of her parental rights. She contends the minor believed that he could be adopted and he would still have Mother as a part of his life, and he did not understand that the foster mother will be able to prevent him from having contact with Mother. Mother asserts that adoption will have a very negative effect on Scott and therefore the trial court should have chosen legal guardianship as the permanent plan for the minor so that he will not be wrenched from Mother, with whom he has always stated he wants to live.
DISCUSSION
1. Adoption Is the Legislature's Preferred Permanent Plan (1) Because adoption is more secure and permanent than a legal guardianship or long-term foster care, adoption is the Legislature's first choice for a permanent plan for a dependent minor child who has not been returned to the custody of his or her parents and who is found by the dependency court to be adoptable. (§ 366.26, subd. (b); In re Celine R. (2003) 31 Cal.4th 45, 53 [ 1 Cal.Rptr.3d 432, 71 P.3d 787].) To avoid termination of parental rights and adoption, a parent must demonstrate that one or more of the section 366.26, subdivision (c)(1)(A) or (B) exceptions to termination of parental rights applies to his or her child. The parent has the burden of proof on the issue. ( In re I.W. (2009) 180 Cal.App.4th 1517, 1527 [ 103 Cal.Rptr.3d 538].) Because a parent's claim to such an exception is evaluated in light of the Legislature's preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption. ( In re Celine R., supra, 31 Cal.4th at p. 53.)
2. Standard of Review
Reviewing courts have applied various standards of review when considering trial court determinations of the applicability of these statutory exceptions to termination of parental rights. In In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [ 93 Cal.Rptr.2d 644], the court observed that both the substantial evidence test and the abuse of discretion test have been applied, and the court stated that "[t]he practical differences between the two standards of review are not significant. `[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. The reviewing court should interfere only "`if [it] find[] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.' . . ."' [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a `compelling reason for determining that termination would be detrimental to the child.' (§ 366.26, subd. (c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile court's opportunity to observe the witnesses and generally get `the feel of the case' warrants a high degree of appellate court deference. [Citation.]" ( Ibid.)
Citing In re I.W., supra, 180 Cal.App.4th at pages 1527-1528, the Department disagrees that the substantial evidence test can be applicable in the instant case. In In re I.W., the reviewing court stated that the substantial evidence test is "typically" implicated in situations where a defendant challenges the sufficiency of evidence to support a judgment in favor of the plaintiff, but the test is not applicable when the party with the burden of proof on an issue at trial appeals, and that would include a parent having the burden of proof on the applicability of a statutory exception to termination of parental rights. The I.W. court stated that in the latter case, the reviewing court must determine "whether the evidence compels a finding in favor of the appellant as a matter of law" such that "the appellant's evidence was (1) `uncontradicted and unimpeached' and (2) `of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" ( Id. at p. 1528.)
In the instant case, application of any of the three standards of review convinces us that Mother's parental rights should not have been terminated because the parent-child relationship exception to termination of parental rights applies in this case.
3.
Nature of the Parent-child Relationship Exception to Termination of Parental Rights
(2) The "parent-child relationship" exception in section 366.26, subdivision (c)(1)(B) provides that a dependency court should not terminate parental rights if "[t]he court finds a
compelling reason for determining that termination would be
detrimental to the child [because] [¶] (i) [t]he parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship." (Italics added.)
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [ 32 Cal.Rptr.2d 535], the court described parent-child relationships that can prevent termination of parental rights as relationships that "promote[] 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 relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." Application of this exception is decided on case-by-case basis and a court takes into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between parent and child is positive or negative, and the child's particular needs. ( Id. at pp. 575-576.)
4.
Application of These Principles to This Case Militates Against Termination of Parental Rights
(3) Scott had just turned 11 years old when Mother's parental rights were terminated. He was nearly nine years old when he was placed with his foster family and thus he had spent nearly all of his life living with Mother. After he was removed from her care he had consistent weekly visits with her and he looked forward to the visits. The CASA repeatedly stated in her reports that Mother and Scott have a very close relationship and it would be detrimental to Scott for their relationship to be disrupted. The mother-child relationship in the instant case, coupled with Scott's continued emotional instability and his repeated insistence that his preference would be to live with Mother, presents a compelling reason for finding that termination of parental rights is detrimental to the minor.
Although it is clear that permitting Scott to resume living with Mother may never be in his best interest, it is also clear that even though Scott truly does love his foster family, he wants to be with Mother if at all possible. Scott has remained strongly bonded with Mother even though the life she provided for him when he was living with her was insufficient, even though his development was arrested during the time they lived together, and even though he has been in the care of the foster mother since March 2007. Scott's spontaneous statements to the court at the section 366.26 hearing demonstrate that his ability to handle being adopted by the foster mother is fragilely based on his belief that being adopted means he and Mother and the foster family will all "go somewhere fun," and he will not be placed in the home with the dog. He emotionally accepted adoption because he believes that adoption means Mother will be included to some extent in the foster family's activities.
It is clear that Scott did not understand that his foster mother would have the right to cut off his contacts with Mother if she adopted him. It is also clear from the record that Scott's emotional makeup will not enable him to endure interruption of his longtime frequent visits with Mother. Yet, in the 10 months between when the foster mother decided she wanted to adopt Scott and the day when Mother's parental rights were terminated, the foster mother gave different indications of how often she would permit Scott to visit with Mother if she adopted him. She stated she told Scott he could visit with Mother "regularly"; but at another time she told the CASA Scott could visit with Mother "on occasion." Although the CASA opined, and the record clearly shows, that it would be detrimental to Scott for his relationship with Mother to be disrupted, after the dependency court terminated Mother's parental rights, the court stated that whether the foster mother would permit further visits between Scott and Mother was within the foster mother's discretion. (4) In early September 2009 the foster mother reported to the Department social worker that Scott had stabilized with the resumption of wraparound services and the support of Mother. Mother provides stability to Scott's life. That is what adoption is supposed to do, but it may not in this case. Given Scott's strong emotional attachment to Mother, his continued precarious emotional state, and his history of regressing and running away when he is stressed, there is a very good chance that he will have a meltdown if his usual frequent visitation with Mother does not continue. The only way to avoid that serious emotional and developmental setback and insure that Scott's usual visitation with Mother continues is by court order. The only way to have such an order is to have Scott's permanent plan be legal guardianship or long-term foster care. Between the two plans, legal guardianship is the Legislature's stated preference as it provides much more stability for a minor child, and based on the appellate record in this case it is legal guardianship that should be the permanent plan for Scott. The record demonstrates that adoption, with its inherent possibility that Scott's usual contacts with Mother would be interrupted, poses the chance of a danger not worth taking. For that reason we agree with the Department's statement that "what is at stake is the fundamental question of whether Scott will continue to thrive, as he has done since being placed with [his foster mother]." Termination of parental rights is unnecessary given that a legal guardianship will provide Scott with stability in his life.
At the time of the section 366.26 hearing in November 2009 Scott was one year younger than the statutory minimum age (12) for consideration of whether a minor's objection to termination of parental rights can be found to be a compelling reason for determining that termination would be detrimental to the minor. (§ 366.26, subd. (c)(1)(B)(ii).) However, because of Scott's emotional and developmental status, his feelings about adoption are necessarily considered when determining whether the parent-child relationship exception to termination of parental rights applies in this case. (§ 366.26, subd. (h)(1).)
It is the hope of this court that Scott's foster mother will understand the need for a legal guardianship in lieu of adoption, and will agree to continue her very admirable care of Scott. It is clear that the behavioral, emotional, social, personal care, and educational progress Scott has made since being detained by the dependency court and placed with the foster mother is, in very large measure, the result of the foster mother's guidance, patience, affection, discipline, and willingness to participate with her time and efforts in the many services provided to the minor by and through the Department. She believes in Scott, and he clearly needs both of his mothers — his biological mother and his foster mother.
DISPOSITION
The order from which Mother has appealed is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.
Klein, P. J., and Kitching, J., concurred.