Opinion
B315304
06-29-2022
In re O.R. et al., Persons Coming Under the Juvenile Court Law. v. ELIZABETH C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel and Kim Nemoy, Assistant County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order terminating parental rights of the Superior Court of Los Angeles County, No. 19CCJP00105, Stephen C. Marpet, Judge Pro Tempore. Reversed.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel and Kim Nemoy, Assistant County Counsel for Plaintiff and Respondent.
BENDIX, J.
When a parent fails to reunify with a child, the juvenile court must select a permanent plan for the child. "Even if a [juvenile] court finds by clear and convincing evidence that the child is likely to be adopted, the parent may avoid termination of parental rights by establishing at least one of a series of enumerated exceptions. If the parent establishes that an exception applies, the statute sets out additional steps for selecting a permanent plan for the child that preserves parental rights." (In re Caden C. (2021) 11 Cal.5th 614, 625 (Caden C.).) One such exception is the parental-benefit exception, which requires a parent to show "the parent has regularly visited with the child, . . . the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child." (Id. at p. 629.)
In this appeal, mother, Elizabeth C., challenges the orders terminating her parental rights over three of her five children. (The juvenile court ordered guardianship as the fourth child's G.R.'s permanent plan and the fifth child is not part of the dependency proceedings.) We agree with mother that this case must be remanded to the juvenile court for a new Welfare and Institutions Code section 366.26 hearing at which the juvenile court should determine whether the parental-benefit exception applies.
All statutory citations are to the Welfare and Institutions Code.
Although the juvenile court previously considered the parental-benefit exception, the record indicates it did not apply the correct factors. Our Supreme Court in Caden C. held that a parent's "lack of progress in addressing" the issues leading to the dependency was not a "categorical bar" to establishing the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 614, 626.) The juvenile court here concluded the parental-benefit exception did not apply because mother continued to test positive for methamphetamine, i.e., she did not progress in addressing an issue leading to the dependency. By relying exclusively on mother's lack of progress, the juvenile court's orders terminating parental rights are inconsistent with Caden C.
On appeal, it is undisputed that mother regularly visited the children, and she did so at times daily and always several times a week. It is also undisputed that mother and the children shared a strong bond. Under these circumstances, the juvenile court was tasked with "act[ing] in the child's best interest" when it "decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 633.) We reverse the orders terminating mother's parental rights and remand the case to the juvenile court to hold a new section 366.26 hearing to determine the appropriate permanent plan for mother's children O.R., B.R., and J.R.
BACKGROUND
Mother and father have four children. In January 2019, when DCFS filed a section 300 petition, G.R. (whose permanent plan is not challenged in the current appeal), was 13 years old, O.R. was 11 years old, B.R. was five years old, and J.R. was 11 months old. In September 2021, mother had another child, who is not part of this dependency case. When dependency proceedings commenced, mother, father, and the children lived with maternal grandparents.
Father was not the newborn child's father.
Father is not a party to the appeal. On March 6, 2019, father was arrested for possession of a controlled substance with intent to sell and for child endangerment. Two days earlier, father had 32 pounds of methamphetamine and $27,000 in the family's car. Mother, G.R., B.R., and J.R. were with father when father was transporting the methamphetamine. Following a plea (to an unspecified charge), the criminal court sentenced father to prison for nine years. The juvenile court ordered no reunification services for father.
1. Petitions
In its first section 300 petition, filed in January 2019, DCFS alleged that mother abused amphetamine and methamphetamine rendering her incapable of caring for her children. The petition alleged that father, who knew of mother's substance abuse, failed to protect the children. The petition further alleged that the family home was in a filthy, unsanitary condition.
DCFS filed a first amended petition on March 29, 2019. In addition to the allegations in the prior petition, DCFS also alleged father placed the children in a dangerous situation by selling 32 pounds of methamphetamine in the presence of G.R., B.R., and J.R.
Mother pleaded no contest to the first amended petition. The court ordered mother to attend parenting classes, individual therapy and a substance abuse treatment program. The court also ordered mother to submit to random weekly drug testing.
In September 2019, DCFS filed a section 387 supplemental petition. It alleged that mother continued to abuse methamphetamine and had positive toxicology tests on August 13, August 21, and September 4, 2019. Mother failed to participate regularly in her substance abuse program and used methamphetamine while the children were in her care.
Mother pleaded no contest to the supplemental petition.
2. Mother's methamphetamine use
On December 19, 2018, mother tested positive for methamphetamine. Mother explained:" 'I found a bag of meth on the floor so I used it.' "
In June 2019, DCFS reported that since March, mother was attending an outpatient drug treatment program and participating in drug counseling. In September 2019, DCFS reported mother had three positive tests for controlled substances and mother reported using drugs because "she felt an overwhelming sensation." Mother also felt lonely and sad. Mother did not show up for drug tests at all in November and December 2019.
From January 2020 through March 2020, mother actively participated in an outpatient substance abuse program. Mother tested negative in January 2020, but then missed two tests in February 2020. Mother also missed two tests in March 2020. Mother tested negative throughout April 2020 but did not show up for one test in May 2020, two in June 2020 and two in July 2020.
In August 2020, DCFS reported that mother was not participating in a substance abuse program, parenting classes, and individual counseling sessions. Mother reported that she stopped attending her drug rehabilitation program because she started working again and because her car was not working. DCFS was concerned that mother was not taking steps to develop skills necessary to "live a sober life and care for her four children." Although mother initially participated in a 12-step program and worked with a sponsor, she stopped participating in those meetings.
Mother did not appear for tests anytime during August through December 2020. Mother also failed to show up for her drug tests twice in January 2021, once in February 2021, once in March 2021, four times in April 2021, once in June 2021, once in July 2021, and twice in August 2021. Mother tested positive for methamphetamine on June 24, 2021. Mother tested negative 19 times between January 14, 2021 and August 19, 2021.
Mother reenrolled in outpatient drug programs several times in 2021, including in January 2021, April 2021 and July 2021. DCFS concluded that "although mother has made progress to become sober and has made great effort to enroll and participate in her programs addressing her addiction, mother has failed to stay sober, as evidenced by the fact th[at] she has fail[ed] to consistently test for the Department and tested positive for methamphetamine on" June 24, 2021.
3. Children's placements
In January 2019, the children were placed in the home of their paternal aunt. Father moved into paternal aunt's home to care for the children. The children remained in paternal aunt's home after father's arrest.
In June 2019, the juvenile court ordered the children placed in mother's custody if mother lived with paternal aunt. Mother moved into paternal aunt's home.
After mother's August and September 2019 positive drug tests, mother agreed to move out of paternal aunt's home so that the children could stay there. Mother signed an affidavit stating that she will have only monitored contact with the children, will not sleep in paternal aunt's home, and will move out "in order for my children to remain in her home."
In August 2020, DCFS reported the children wanted to be placed with maternal grandmother. DCFS did not explain the children's reasons for wanting to move. That same month, the children moved to maternal grandmother's home. Both mother and paternal grandfather moved out of the home to permit the children to live with maternal grandmother. Maternal grandmother was the prospective adoptive parent for O.R., B.R., and J.R. and the legal guardian of G.R.
4. Mother's visits and bond with the children
In March 2019, DCFS reported that the children have a "strong attachment to parents." G.R. told a social worker," 'It hurts me that my mom can't stay with us. We need to be together.' "
In March 2019, DCFS reported that mother visited the children daily. G.R. reported that being separated from his parents caused him"' a lot of pain'" and he tried to be strong for his siblings.
In April 2019, DCFS reported that mother continued to visit the children daily. Mother assisted with bathing, feeding, and cleaning up after the children.
In September 2019, the juvenile court ordered the children detained from mother. As noted, the children remained placed with paternal aunt. All of the children wanted mother to return to paternal aunt's home to live with them. G.R. and O.R. both stated," 'I love my mom and I want her to live with us.'" G.R. asked the social worker to" 'help, so the court can return us back to our mother soon.'" He continued," 'I do not want my mom to leave.'" O.R. said," 'She is a good mom.' "
In October 2019, DCFS reported that G.R. said," 'I love my mom and she loves us. She gives us hugs and kisses.'" G.R. and O.R. both expressed a desire to live with mother.
In April 2020, DCFS reported that "mother engages well with the children and the children feel comfortable in mother's presence." G.R. told the social worker that he wanted to reunify with mother.
In August 2020, DCFS reported that mother consistently visited the children. B.R. stated that mother plays with her and J.R. during the visits. G.R. and O.R. reported mother talks to them and watches them play their musical instruments.
In February 2021, DCFS reported mother visited the children "almost daily and engages with each building and keeping a bond. The children are comfortable in mother's presence and enjoy spending time with her. Mother is able to help with the children and [they] have meals together almost daily." The children recounted enjoying their visits with mother. Mother stated she enjoyed spending time with the children and wanted them to know that she cared about them.
5. Section 366.26 report
Social worker's section 366.26 report dated August 3, 2021 indicated that the children were all living with maternal grandmother. DCFS reported the children "are well-adjusted, stable, and thriving under the care of" maternal grandmother. The children had been living with maternal grandmother for one year.
Mother continued to visit and have meals with the children almost daily. She spent time with them and helped maternal grandmother with their care. According to DCFS, mother maintained a bond with the children.
In a supplemental section 366.26 report also dated August 3, 2021, DCFS reported that maternal grandmother was committed to adopting the children. DCFS represented that grandmother was meeting all of the children's needs. G.R. did not want to be adopted and did not want mother's parental rights terminated. With respect to G.R. the concurrent planning assessment indicated that "[p]arents/[g]uardians have regular visitation and contact with child, and child would benefit from continued relationship."
DCFS reported that O.R. and B.R. "are in agreement about being adopted" by maternal grandmother. DCFS concluded that "parental visitation does not appear to be a barrier to adoption." DCFS did not further describe mother's bond with O.R., B.R. and J.R.
In a "Last Minute Information for the Court", DCFS reminded the court that on June 24, 2021, mother tested positive for methamphetamine. (Some capitalization omitted.)
6. Section 366.26 hearing
No witness testified at the section 366.26 hearing. Mother's counsel requested that the court not terminate parental rights and noted that mother regularly visited the children. Father's counsel asked that the court not terminate parental rights and instead place the children in legal guardianship. The children's counsel also requested the court not terminate parental rights and stated that the children "are very bonded with their mother and they would wish to reunify with her."
The court terminated parental rights over O.R., B.R., and J.R. The court explained: "[W]e've given mother many, many opportunities. Mother's had over two years and eight months of services and as recent as July of this year she's been testing positive for methamphetamine. There is no likelihood this mother is going to reunite. These children need permanency. There's a presumption for the need of permanency for these children. [¶] The court is going to find that there is no (c)(1)(B)(1) exception and terminate the parental rights for the mother . . . and father."
The court's written order stated that with respect to O.R., B.R. and J.R. the court "finds that the parent has maintained regular visitation with the child and has not established a bond with the child." "The Court finds that any benefit accruing to the child from his/her relationship with the parent(s) is outweighed by the physical and emotional benefit the child will receive through the permanency and stability of adoption, and that adoption is in the best interests of the child." The written order offered no additional rationale to that stated at the hearing.
Mother timely appealed.
DISCUSSION
A. Caden C. Governs Consideration of the Parental-Benefit Exception
Caden C. explains the elements of the parental-benefit exception. In that case, four-year-old Caden was removed from his mother's custody because his mother was living in a car, admitted recent drug use, and admitted suicidal ideation. (Caden C., supra, 11 Cal.5th at p. 626.) During the dependency proceedings, the mother regained custody of Caden, but later she relapsed. (Ibid.) The juvenile court found the mother had established the parental-benefit exception and did not terminate mother's parental rights. (Id. at p. 628.) The appellate court reversed, holding no parental-benefit exception applied because the mother had not made "progress in addressing the problems that led to the child's dependency." (Id. at p. 629.)
In disagreeing with the appellate court, our high court first explained the parental-benefit exception. "What it requires a parent to establish, by a preponderance of the evidence, is that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child. (See Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i); Evid. Code, § 115.) The language of this exception, along with its history and place in the larger dependency scheme, show that the exception applies in situations where a child cannot be in a parent's custody but where severing the child's relationship with the parent, even when balanced against the benefits of a new adoptive home, would be harmful for the child. While application of the beneficial parental relationship exception rests on a variety of factual determinations properly reviewed for substantial evidence, the ultimate decision that termination would be harmful is subject to review for abuse of discretion." (Caden C., supra, 11 Cal.5th at pp. 629-630.)
The high court then more specifically described the three elements necessary to show the parent benefit exception (1) regular visitation and contact; (2) an assessment of whether" 'the child would benefit from continuing the relationship'" and (3) an assessment of whether" 'termination would be detrimental to the child due to'" the child's relationship with the parent. (Caden C., supra, 11 Cal.5th at pp. 632-633.) The juvenile court is tasked with "act[ing] in the child's best interest" when it "decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.]" (Id. at p. 633.)
As relevant here, the high court explained: "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s). Nothing that happens at the section 366.26 hearing allows the child to return to live with the parent. [Citation.] Accordingly, courts should not look to whether the parent can provide a home for the child; the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home. [Citation.] Even where it may never make sense to permit the child to live with the parent, termination may be detrimental. [Citation.] And the section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver." (Caden C., supra, 11 Cal.5th at p. 634.)
The high court clarified that a "parent's continued struggles with the issues leading to dependency are not a categorial bar to applying the exception." (Caden C., supra, 11 Cal.5th at p. 637.) "[W]hen the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency." (Ibid.) "Parents need not show that they are 'actively involved in maintaining their sobriety or complying substantially with their case plan' [citation] to establish the exception." (Ibid.) In sum, the parental-benefit exception "preserves the child's right to the relationship even when the child cannot safely live with that parent." (Id. at p. 643.)
B. The Juvenile Court Abused its Discretion By Relying Solely on Mother's Continued Drug Use to Terminate Mother's Parental Rights
Respondent's argument that the issue is forfeited is not persuasive. Although respondent correctly points out that neither mother's counsel nor the children's counsel expressly referenced the parental-benefit exception, it is clear from the record that the exception was at issue in the juvenile court. Specifically, the juvenile court stated, "The court is going to find that there is no (c)(1)(B)(1) exception," i.e., the parental-benefit exception.
Caden C. makes clear that "whether the parent is or is not 'ready for the children's return to her custody' is not, by itself, relevant to the application of the parental-benefit exception." (Caden C., supra, 11 Cal.5th at p. 638.) As this court stated in In re Katherine J. (2022) 75 Cal.App.5th 303: "Caden C. prohibits juvenile courts from finding against a beneficial relationship solely because a parent has failed to surmount the issues that initially brought the child into dependency care-a standard that few parents facing termination of parental rights could hope to meet." (Id. at p. 309.) Here, the juvenile abused its discretion in relying solely on the mother's continued methamphetamine use, an issue giving rise to the dependency, in rejecting the parental-benefit exception. A "disposition that rests on an error of law constitutes an abuse of discretion." (In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
We reject respondent's argument that mother was required to demonstrate as a matter of law that the parental-benefit exception applies. Mother is not challenging the sufficiency of the evidence to support the parental-benefit exception. Instead, mother is challenging the legal standard the juvenile court applied in determining the parental-benefit exception did not apply.
Respondent retorts: "[D]espite evidence that Mother maintained ongoing visitation with the children and enjoyed a positive relationship with them, she also created havoc and multiple custody changes in their lives, tipping the scales in favor of the stability and permanency that adoption provides." The record does not support these assertions.
Although mother relapsed, she voluntarily moved out of paternal aunt's home so that the children could remain there. Subsequently, when the children wanted to live with maternal grandmother, mother voluntarily left maternal grandmother's home so the children could move there. Additionally, respondent's assumption that the scales were tipped towards permanency also is not supported by the record, which shows the juvenile court never considered "whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 633.)
Finally, although respondent correctly points out that the juvenile court was not required to articulate why the parental-benefit exception did not apply (In re A.L. (2022) 73 Cal.App.5th 1131, 1156), here the record shows the trial court applied an incorrect test to assess that exception. It is the responsibility of the juvenile court, not this court, to determine "whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.]" (Caden C., supra, 11 Cal.5th at p. 633.) For all these reasons, we reverse the order terminating parental rights and remand the case to the trial court to exercise its discretion to determine whether the parental-benefit exception precludes termination of parental rights. (See In re D.P. (2022) 76 Cal.App.5th 153, 167 [remanding case to juvenile court to reapply parental-benefit exception]; In re J.D. (2021) 70 Cal.App.5th 833, 864, 870 [remand necessary when it is unclear whether juvenile court relied on permissible factors to terminate parental rights].) We express no opinion on whether the parental-benefit exception applies to any or all of the children.
Because we afford mother the relief she seeks, we need not consider mother's additional argument (raised for the first time on appeal), that O.R. was not adoptable and that the juvenile court therefore erred in terminating mother's parental rights over O.R. Nothing in this opinion precludes the juvenile court from considering O.R.'s adoptability at the new section 366.26 hearing.
DISPOSITION
The juvenile court's orders terminating parental rights over O.R., B.R., and J.R. are reversed. The case is remanded to the juvenile court to hold a new section 366.26 hearing.
We concur: ROTHSCHILD, P.J., CHANEY, J.