Mother Granted Custody of Her Child After Year of Foster Care

In this case, the Fourth District affirmed an Orange County juvenile court’s order granting M’s section 388 petition returning three-year-old I.B. to her care but ordering that his older brother, A.B., would remain with foster parents. I.B.’s counsel argued that the court erred in separating the boys; the appellate court said that ‘after carefully reviewing the record, while it is a close case, we cannot say the trial court abused its discretion.’

The court’s opinion also said:

“The case before us began with a single incident of violence, where Mother lashed out at her abuser by throwing something at him. As the case progressed, the true story about the unequal balance of power between the couple was revealed. There was evidence Father used jealous rages to isolate her, physical abuse to anger her, verbal abuse to harm her self-esteem and independence, and taunts to knowingly trigger a physical reaction. There was also evidence suggesting Father exerted financial control over Mother’s disability payments. Untangling herself from this high level of manipulation and control was an enormous task. The court reasonably concluded Mother’s ability to maintain separation from Father for eight months was only possible because his controlling tactics were no longer effective.”

“The court correctly saw other evidence indicating Mother understood what was necessary to permanently leave Father. Mother’s therapist also gave several reasons for Mother’s change of outlook. Specifically, through counseling Mother had gained self-esteem and confidence. By developing new friendships, finding a babysitter, and relying on positive relationships she was less isolated. Classes at the Braille Institute taught her to stop feeling shame as well as provided an excellent support system for her journey as a single parent with a physical disability. She testified the new classes, which included learning how to read and write Braille, gave her new access to written resources. The classes helped Mother become independent. She regained financial control of her income and arranged for her own housing, demonstrating she no longer needed to be dependent on Father for life’s necessities. These kinds of achievements were important benchmarks of success for a survivor of domestic violence, in addition to counting the months/years of separation. ‘Knowing how domestic violence operates is important in understanding how women might succeed in decreasing it. Because domestic violence is the operation of power and control over the woman, it makes sense that the woman’s ability to exercise agency and autonomy within the abusive situation is related to her ability to address the abuse.’ (Johnson, Redefining Harm, Reimagining Remedies, and Reclaiming Domestic Violence Law (2009) 42 U.C. Davis L.Rev. 1107, 1126.)”

“…We are also untroubled by Mother’s admission she lied during conjoint therapy because Father told her what to say in June 2018. Mother’s conduct while under the control of an abusive spouse should not be held against her indefinitely. The record shows she discontinued conjoint therapy and with the benefit of individual therapy, she learned to accept and learn from her past mistakes. Moreover, we question the wisdom of conjoint therapy as a requirement of reunification for a disabled Mother struggling to separate herself from an abusive relationship.”

“…Here, Mother rebutted the presumption that continued out-of-home placement was in I.B.’s best interests. The court reasonably relied on evidence I.B., who was only three years old, was bonded to both Mother and his foster parents. Mother was I.B.’s primary caregiver for the first seven months of his life, and thereafter, remained a constant and positive presence every week. She never missed or was late for a visit. The foster family saw I.B. daily while he lived at the group home, and he transitioned easily to becoming a member of their family for nearly one year. I.B.’s bond to both mother and his foster parents was not disputed by the parties. In addition, there was evidence to support the conclusion both Mother and the foster family were ready and able to provide I.B. with a permanent safe and loving home. I.B.’s need for permanency and stability was significant because he had been in four placements over a three-year period.”

“If our analysis were to stop here, it would be difficult to say Mother rebutted the presumption that adoption by the foster family was not in his best interests. What tipped the scales, and was discussed at length at the hearing, was that both potential placements had disadvantages. On one hand, there was evidence of a high risk of future harm to I.B. by his older brother at his current placement. If A.B. was one of the foster parent’s biological children or an unrelated foster child, there would be little discussion about the appropriateness of placing I.B. somewhere he was being treated as a ‘human punching bag,’ sustaining bruises, scratches, and red marks on his neck. I.B.’s counsel and SSA argue there was a need to preserve the sibling bond, but they do not suggest how this relationship benefitted I.B.’s best interests and, in particular, his need for a stable home environment. Without a bonding study or expert opinion, there is little to contradict the overwhelming evidence the abusive nature of the sibling relationship was unhealthy. Living in an abusive environment can provide permanency but not necessarily a healthy and stable situation. As noted by the court, I.B. needs and deserves a stable environment and ‘the opportunity to be a child, and allow his own behaviors to grow positive.’”

“I.B.’s counsel correctly discusses many provisions recognizing the importance of maintaining beneficial sibling relationships ‘to the psychological health of dependent children’ separated from their parents. (In re Hector A. (2005) 125 Cal.App.4th 783, 794.) This case is different because I.B. was being separated from a sibling to be reunited with his mother. While there was evidence of a significant beneficial relationship between I.B. and Mother, the same could not be said about I.B.’s relationship with his brother. Rather, I.B. was terrified of his brother. ‘Not all sibling relationships are strong or healthy.’ (Schwartz, Family Law Siblings Torn Apart No More (2001) 32 McGeorge L.Rev. 704, 708.) ‘Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended.’ (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952 [discussing significance of sibling relationship in context of statutory exception to termination of parental rights].)”

“In the case before us now, Mother’s services continued, and she established she could immediately provide I.B. a permanent and stable home. Because Mother met her burden of proof required by the Stephanie M. case, the court did not abuse its discretion in also considering the Kimberly F. factors which involved looking retrospectively at the parent’s past conduct and bond with the child. Those factors added to the holistic evaluation of I.B.’s best interests, which in this case was particularly challenging. The court’s lengthy discussion on the record shows it earnestly undertook the difficult task of evaluating all relevant factors in deciding which placement would provide I.B. with a permanent and stable home. We conclude the court did not abuse its discretion in returning I.B. to Mother’s care.”

This is how these things should work.