Opinion
F076394
05-30-2018
In re R.B., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. V.B. et al., Defendants and Appellants.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant V.B. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant H.B. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11CEJ300235-4)
OPINION
APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant V.B. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant H.B. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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V.B. (mother) is the mother of three children - R.T., M.T., and R.B. (the children). H.B. (father) is the father of R.B. and joined mother's appeal by letter brief. Mother contends the juvenile court erred when it declined to apply the beneficial parent-child relationship exception to adoption and terminated her parental rights. We affirm.
The only child at issue on appeal is R.B., a little over two and one-half years old when dependency commenced. R.T. was an adult at the time of the permanent planning hearing, and M.T., almost 17 years old, did not want to be adopted or in legal guardianship.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2016, the children were placed into protective custody after law enforcement responded to a call at maternal uncle's home where the children were temporarily residing due to mother's homelessness. When mother came to the home to visit the children, the maternal uncle would not allow it. Mother became upset and maternal uncle called the police. Law enforcement hospitalized mother because she had threatened to break maternal uncle's windows and doors and appeared to be a danger to others. The police called the Fresno County Department of Social Services (department) to pick up the children because maternal uncle no longer wished to care for them due to mother's erratic behavior. The older two children did not want to be with mother, as she "had made bad choices in life," "had a bad boyfriend," and "had some mental health problems and was 'crazy sometimes.'"
On June 28, 2016, the department filed a Welfare and Institutions Code section 300 petition alleging mother had a substance abuse problem and mental health issues, placing her children at risk of harm. Mother had had prior dependency court involvement - she had received voluntary family maintenance services in 2010, family maintenance services in 2011, and family reunification services in 2014, all of which included substance abuse treatment. Mother acknowledged she was again using drugs. Detention
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
At the detention hearing June 29, 2016, neither mother nor father was present. The father of the older two children, Jose T., was present and stated he had Indian ancestry through the Cherokee tribe, and Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) notices were ordered. Mother was allowed twice a week supervised visits with the children. Jurisdiction and Disposition
On July 27, 2016, mother appeared at the scheduled jurisdiction hearing and the juvenile court took note of the fact that mother claimed no Indian ancestry. However, county counsel informed the court that father claimed Indian ancestry through the Apache tribe, and ICWA notice was sent. Jurisdiction/disposition was continued to August 24, 2016.
The report prepared in anticipation of jurisdiction and disposition recommended no reunification services be offered mother, pursuant to section 361.5, subdivision (b)(13). The report stated mother was attending all supervised visits, which were occurring twice a week. The social worker noted mother and R.B. had a healthy and positive relationship. Mother was attentive to R.B.'s needs and interacted with him in a positive manner. During visits, R.B. and mother were affectionate by hugging and telling each other they loved one another. During one visit, when the social worker made a suggestion concerning R.B.'s behavior, mother told the social worker it was not her job "'to teach parenting.'" Mother became angry and asked who she could complain to.
Section 361.5, subdivision (b)(13) provides reunification services need not be offered a parent when that parent has a history of extensive, abusive, and chronic drug or alcohol use and has resisted prior treatment during the three-year period immediately prior to the filing of the current petition.
The department assessed that there was a bond between R.B. and mother, although there had been about a six-month period when R.B. was not in mother's care due to prior dependency involvement - from the middle of June 2014 to the middle of December 2014, when R.B. was eight to 14 months old. Mother also acknowledged that, at other times, R.B. was not in her care when she placed him with relatives because she was homeless.
Mother was enrolled in a residential substance abuse treatment program on August 29, 2016, and, a month later, was showing signs of improvement in the program.
The juvenile court sustained the section 300 petition on October 12, 2016. ICWA notices had been sent and responses stated R.B. was not eligible for enrollment. The court found ICWA did not apply.
The juvenile court denied mother family reunification services due to her failure to resolve her substance abuse history. It found the extent of progress made by mother to alleviate or mitigate the causes necessitating placement had been minimal. Reasonable supervised visitation was ordered. Mother asked that visits be a minimum of once per week, but was told to discuss that with the department. A section 366.26 hearing was scheduled for January 25, 2017, and mother was advised of her writ rights. Section 366 .26 Hearing
In the report prepared for the section 366.26 hearing, the department stated R.B. was healthy and on track developmentally. R.B. was scheduled to begin weekly therapy sessions after completing a mental health assessment. R.B. and his older sister M.T. were still in the same foster care home. M.T. did not want to be adopted, but the caregivers wished to adopt R.B. Visitation between R.B. and mother was still occurring consistently, and mother was appropriate with R.B. during visits. She was encouraging and nurturing with R.B., and they were affectionate with each other. The older two children had refused to attend visits since August of 2016, due to an argument with mother.
At the section 366.26 hearing held March 29, 2017, father, who was in custody, made his first appearance in juvenile court and informed the court his great grandmother had said the family had Apache ancestry. Father did not know anything further, but said his maternal grandparents were still alive, and he would provide their names. The court ordered the department to do further ICWA inquiry and redo ICWA notices; father was ordered to provide any information he had. The section 366.26 hearing was continued to May 31, 2017.
At the subsequent hearing May 31, 2017, county counsel informed the juvenile court that a social worker met with father and he informed her the only people who had information about his ancestry were his grandparents, and they were deceased. Father was not able to provide any new or different information from what was already in the previous ICWA notices, which contained information about the paternal grandparents and great grandparents. The court's previous order that the ICWA did not apply was not changed.
A contested section 366.26 hearing was scheduled for August 23, 2017. Contested Section 366 .26 Hearing
In an addendum report for the contested section 366.26 selection and implementation hearing, the department reported that, despite mother being nurturing and affectionate with R.B. during the twice a month visits, she struggled with providing him structure. R.B. appeared to enjoy the visits, but did not ask when the next visit would be or ask to see mother.
The report also stated mother had completed a residential drug treatment program February 24, 2017. A letter from the program stated mother demonstrated a great deal of growth and gained the ability to recognize many issues that had hindered her recovery in the past. By this time, mother had started an outpatient program, was working, and was renting a room. However, due to mother's extensive substance abuse history, the department recommend adoption for R.B.
At the contested hearing, mother testified that her visits with R.B. started with him running to her, saying "mommy" with a smile on his face, and hugging her. During visits, they played and he gave her "a lot of love." At the end of visits, R.B. did not want to go and would plead with mother to let him leave with her.
The adoption social worker testified that she observed some of the visits between R.B. and mother. Mother was always on time and had not missed any visits. R.B. was happy to see mother. However, although R.B. called mother "mom," the adoption worker believed R.B.'s relationship with mother was more like a friendly visitor and he was able to say "bye after the visit and head out." The adoption worker opined R.B. enjoyed the visits because mother played well with him.
Mother's counsel asked that the juvenile court apply the beneficial parent-child relationship exception to prevent termination of parental rights. R.B.'s counsel agreed with the department's recommendation to terminate parental rights.
The juvenile court found by clear and convincing evidence that R.B. was adoptable. In addressing the beneficial parent-child relationship exception, the court found mother had done a "spectacular job" at regularly and consistently visiting R.B. The court disagreed with the adoption worker's statement that the relationship between R.B. and mother was like a friendly visitor, and found the parent-child relationship existed. However, the court assessed that the benefit of continuing the relationship did not outweigh the benefit of adoption because mother had not been able to maintain long-term stability in the past "despite the investment of tremendous public resources over an extended period of time," and she had not taken true accountability of her drug addiction. Parental rights were terminated.
DISCUSSION
Mother contends the juvenile court erred when it declined to apply the statutory exception to adoption of section 366.26, subdivision (c)(1)(B)(i), known as the beneficial parental relationship exception. She asserts she met her burden of proving both that she had regular contact with R.B. and that he would benefit from continuing his relationship with her, such that it would be detrimental to R.B. to terminate her parental rights.
Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependency child. After reunification services are terminated, the juvenile court "shall terminate parental rights and order the child placed for adoption" if it determines by clear and convincing evidence that the child likely will be adopted. (§ 366.26, subd. (c)(1); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 ["Adoption, where possible, is the permanent plan preferred by the Legislature"].) An exception to adoption exists when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because a parent 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).)
"'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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 re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (Ibid.)
The juvenile court's decision that a parent has not satisfied this burden may be based on either or both of two component determinations - whether a beneficial parental relationship exception exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
Here, the juvenile court found that mother had visited regularly and that there was a beneficial parental relationship between mother and R.B., but concluded that relationship did not constitute a compelling reason for determining its termination would be detrimental to R.B. "This '"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,' is appropriately reviewed under the deferential abuse of discretion standard." (In re K.P. (2012) 203 Cal.App.4th 614, 622.)
We find no abuse of discretion in the juvenile court's decision not to apply the exception. While the juvenile court found mother occupied a parental role in R.B.'s life, there is simply no evidence that severing that relationship would be detrimental to him. Mother argues that significant benefits inured to R.B. from their relationship so that its termination would be detrimental, pointing to R.B. calling her "mommy" and his crying at the end of their visits. But mother has not demonstrated that the relationship is a compelling reason to forego adoption. Indeed, mother presents no evidence showing how severing the relationship would be detrimental to R.B., particularly when weighed against the benefit to R.B. of a permanent home.
By the time of the section 366.26 hearing, R.B., now almost four years old, had been previously removed from mother's care for six months and again removed from her care in the current dependency for a year. The maternal relative who currently wished to adopt R.B. had also cared for him when he was removed from mother the first time. R.B. had no particular needs that only mother could meet, and his needs were being fully met by his prospective parent. The social worker reported that R.B. was comfortable in the prospective parent's home, he was able to ask the prospective parent for the things he needed and looked to her for comfort.
Given the lack of evidence of detriment to R.B., the benefit of adoption clearly outweighed any benefit in continuing the parent/child relationship. Consequently, we find no abuse of discretion in the juvenile court's decision to terminate parental rights.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
DETJEN, J.