Opinion
B311638
01-26-2022
In re J.B., a Person Coming Under the Juvenile Court Law. v. G.B., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 18CCJP04004 Martha A. Matthews, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
In these dependency proceedings, G.B. (mother) appeals from a juvenile court order terminating her parental rights over J.B., her nine-year-old daughter, contending the court erred in relying on her past bad behavior as a basis for finding the parental-benefit exception to adoption did not apply and in failing to weigh the benefit of continuing her relationship with J.B. against the detriment of terminating it. We affirm.
BACKGROUND
The family consists of mother, now nine-year-old J.B., and her half brother, A.B., who is not a party to the appeal.
In prior dependency proceedings, mother engaged in family reunification services from 2014 to 2017 after it was reported she had passed out from intoxication in a public restroom in a mini-mall while shopping with J.B. and A.B., who were thirsty and dirty. A dependency petition was filed in September 2015, and J.B. remained out of mother's care for a year and a half, until March 2017. Mother engaged in reunification services a second time from 2017 to 2018 after it was reported that her boyfriend physically abused her in front of the children.
On June 13, 2018, while driving with the children with a blood alcohol level far exceeding the legal limit, mother was involved in a hit and run accident. She was arrested.
The Department of Children and Family Services (DCFS or the department) filed a dependency petition, and J.B. and A.B. were detained and placed in the foster home of Rosina C. (A.B. was eventually placed with his father.)
Mother denied having an alcohol abuse problem or that her arrest had resulted from her drinking and driving, stating, "I don't drink."
A social worker found J.B., then age six, to be clean and neatly dressed, but suffering from head lice. The child reported that mother regularly drank beer, and had been drinking on the day of the accident. She said mother "drank ten beers because the little beers come in ten," then ran out of beer and put the children in the car to go buy more, crashing on the way home. She said mother should not have been driving because she had been drinking. "Her eyes were red, she was talking funny, like a person who has been drinking, like a zombie . . . ."
J.B. stated, "My mom would drink in the night and during the day. When she drinks she would be mad at us and she would hit us. She would get drunk and she couldn't walk straight[, ] she would talk different, and her eyes would get red. [¶] She looks like she is going to fall. Sometimes she will fall asleep in the house or in the car when she is drinking and my brother and I are in the car."
J.B. said when mother drank, she would hit J.B. with various objects, leaving marks and bruises. She witnessed mother also hitting A.B. with these objects.
J.B. reported that when mother would drink," 'boys'" sometimes touched her body and private parts. She described four men touching her private parts, kissing her on the mouth, and biting her neck, and indicated that mother drank with these men and did nothing when they touched her.
Rosina C., who monitored mother's visits, reported mother was neither affectionate during visits nor very nurturing, and seemed to have no bond with J.B. A year later a social worker also concluded that mother appeared to have no bond or affectionate connection with the child.
In July 2018, mother missed one scheduled alcohol test and tested positive for alcohol use once, blaming her positive test on having taken Nyquil the day before.
Mother visited J.B. and A.B. on Fridays and Saturdays for two or three hours at a park or mall. Rosina C., the foster mother, supervised the visits and at first reported no substantial concerns. However, by October 2018, mother was arriving to visits intoxicated, such that the children began to sniff her at the beginning of each visit.
J.B. complained that mother would not let her get close during their visits, and would move away if she tried. Rosina C. canceled several of mother's visits because she smelled of alcohol and was intoxicated, and told mother that her drinking greatly affected J.B. J.B. said, "I want my mom to stop drinking."
In October 2018, the court sustained DCFS's amended petition, found the children to be court dependents, and removed them from mother's physical custody. The court ordered family reunification services and monitored visits three times a week for three hours.
Visitation improved by January 2019, with mother appearing sober and the visits going well, although she missed some visits. J.B. said, "I don't think she's drinking anymore, but sometimes I forget to smell her breath."
In August 2020, J.B. said she had talked with mother on FaceTime. She reported, "She was a bit quiet, she wasn't talking much. Her eyes looked red. Maybe she was drinking."
Mother partially complied with the reunification services case plan, enrolling in an outpatient substance abuse program and attending AA meetings. However, she missed many group sessions and some drug tests and failed to obtain a sponsor. Mother attended a parenting class but DCFS reported that her alcohol use impaired her functioning and her housing situation was unstable. In April 2019, mother was dropped from her drug and alcohol program due in part to her continued drinking.
In May 2019, mother drug tested positive four times for alcohol, and in June 2019 she was arrested for appearing for her criminal court drug program while under the influence of alcohol. She was terminated from the program.
By August 2019, mother was in only minimal compliance with the case plan. Although she had enrolled in multiple programs, her attendance, participation and learning were insubstantial. She had been discharged from a substance abuse program, drove without a license, engaged in domestic violence with a boyfriend, and was arrested for alcohol-related offenses. However, she completed an eight-hour alcohol abuse prevention course by August 27, 2019.
At the 12-month review hearing, the juvenile court found that despite the provision of reasonable family reunification services, mother had failed to avail herself of those services and showed little improvement to remedy the conditions that gave rise to J.B.'s removal from her care. The court concluded mother was unlikely to qualify for J.B.'s return in the next six months and, therefore terminated family reunification efforts and set the matter for a permanency planning hearing.
J.B. had remained in foster care with Rosina C. from the time of her removal, with no reported concerns, but Rosina was unable to commit to adoption, wishing to remain only a foster parent.
Mother continued to visit J.B., but for the next year her pattern of periodic intoxication, occasional missed visits, and uncompleted programs continued. By the late fall of 2020, however, she was attending AA meetings regularly, had completed a parenting course and an outpatient substance abuse program, and had worked through an individual counseling regimen. She was testing clean for alcohol use and had a stable home. When the Covid pandemic struck, visitation was achieved in the form of video conferencing to protect Rosina C., who was immunocompromised.
In November 2020, J.B. met with and began regular video conference calls and occasional in-person visits with a prospective adoptive couple, with whom she was placed in February 2021. She later reported she was very happy in her new circumstances.
DCFS recommended that mother's parental rights be terminated and J.B. be placed for adoption.
In December 2020, mother filed a Welfare and Institutions Code section 388 petition requesting that reunification services be reinstated or that J.B. be placed in her care. She acknowledged her alcohol abuse history but stated she had been substantially sober since October 2019, and had completed a parenting class, attended therapy, continued with AA (where she had a sponsor), and maintained a stable residence. Mother reported she was having regular video visits with J.B., which went well.
Undesignated statutory references will be to the Welfare and Institutions Code.
DCFS interviewed J.B. in preparation for its response to mother's section 388 petition. When asked how she felt about possibly returning to mother's care, J.B. said, "I would be scared she will drink again and I don't want that to happen. . . . I think she would drink and hit me again." She added, "I'm afraid [mother] will leave me alone when she drinks."
On April 7, 2021, almost three years after detention, the court held a hearing on mother's section 388 petition, followed by a permanency hearing.
Mother testified she had completed several services and had been sober for two years. However, she denied being an alcoholic and claimed J.B. was removed because she (mother) fell asleep in the car while driving. Mother testified that in-person visits had recently resumed, during which she would bring J.B. small gifts and they would play together, and during prior virtual visits they would draw together.
The court found mother was less than honest about her sobriety, which indicated she was in only the early stages of recovery, and her visits with J.B. had not always been consistent. The court found it would not be in J.B.'s best interest to reopen the reunification process, because "A child can endure just so much uncertainty about their future." Accordingly, the court denied mother's petition.
Turning to the permanency hearing, the court stated: "Given the ruling I just made on mother's 388 petition, I also would believe that for basically the same reasons, none of the statutory exceptions to the preference for adoption apply . . . . [A]lthough it is true that mother has visited fairly consistently, and obviously J.B. cares about her mother, J.B. also is aware of mother's struggle with alcohol and says that when mother is drinking, mother is physically abusive. Mother is unable to protect her, and she's afraid that things will happen, like, she said the mother will go back to stealing. The child unfortunately has been exposed to a lot of behavior that mother engaged in while she was drinking and is apprehensive. Even I think the parent-child bond has been compromised because mother struggles with alcohol. I do not think the [parental benefit] exception applies in this case. I am going to go ahead and make [§ 366.26] findings."
Finding J.B. was likely to be adopted and no exception to adoption applied, the court terminated parental rights.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights because it added impermissible factors to the parental benefit exception analysis and failed to evaluate the relationship between mother and J.B. We disagree.
A. Applicable Law: In re Caden C. (2021) 11 Cal.5th 614
At a permanency planning hearing pursuant to section 366.26 the court is charged with determining a permanent plan of care for a child. If the child is likely to be adopted, adoption is the preferred plan. (In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
The Legislature has provided an exception to the general rule of adoption where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C, supra, 11 Cal.5th at p. 631.) "[I]n assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. [Citation.] By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Id. at p. 632.)
"The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Caden C, supra, 11 Cal.5th at p. 632.)
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' [Citation.] . . . [T]he focus is the child. And the relationship may be shaped by a slew of factors, such as '[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.' [Citation.] . . . [C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citation.] . . . [C]ourts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Caden C, supra, 11 Cal.5th at p. 632.)
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption. [Citations.] Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.)
In sum, the court "decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.' [Citation.] 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that,' even considering the benefits of a new adoptive home, termination would 'harm[]' the child, the court should not terminate parental rights. [Citation.] That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.] When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent." (Caden C., supra, 11 Cal.5th at pp. 633-634.)
"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.)
"What's more, understanding the harm associated with severing the relationship is a subtle enterprise-sometimes depending on more than just how beneficial the relationship is. In many cases, 'the strength and quality of the natural parent/child relationship' will substantially determine how detrimental it would be to lose that relationship, which must be weighed against the benefits of a new adoptive home. [Citation.] A child would benefit from continuing a strong, positive, and affirming relationship, and it would be destabilizing to lose that relationship. Sometimes, though, a relationship involves tangled benefits and burdens. In those cases, the court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship." (Caden C., supra, 11 Cal.5th at p. 634.)
The parent challenging the termination of parental rights based on the parent-child relationship exception has the burden of proving that the exception applies. (In re C.B. (2010) 190 Cal.App.4th 102, 122.)
B. Standards of Review
We review the juvenile court's determination whether the parent has visited and maintained contact with the child consistently, given the extent permitted by the court's orders, for substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-640.) We likewise review for substantial evidence the court's determination whether the relationship is such that the child would benefit from continuing it. (Id. at p. 640.) We may not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts, and will uphold the trial court's determination supported by substantial evidence even if substantial evidence to the contrary also exists. (Ibid.)
We review whether termination of parental rights would be detrimental to the child for abuse of discretion. (Caden C., supra, 11 Cal.5th at p. 639.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.] But '" '[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"' (Id. at p. 641.)
C. Discussion
Here, the court found that although mother had maintained fairly consistent visitation with J.B., "the parent-child bond has been compromised" because J.B. "is aware of mother's struggle with alcohol and says that when mother is drinking, mother is physically abusive. Mother is unable to protect her, and she's afraid that things will happen, like, she said mother will go back to stealing. The child unfortunately has been exposed to a lot of behavior that mother engaged in while she was drinking and is apprehensive."
This finding that J.B.'s bond with mother had been "compromised" was supported by substantial evidence: J.B. was acutely aware of mother's drinking habits at an early age, informing a social worker when she was six that mother regularly drank several beers, and her eyes would become red and she would slur her speech and stumble, "like a zombie." She would fall asleep in the house or the car while J.B. and A.B. were with her. J.B. reported that mother would drink day and night, and while doing so would hit her and her brother with various objects, leaving bruises. J.B. reported that when mother would drink, four men sometimes molested her, touching her private parts, kissing her on the mouth, and biting her neck while mother did nothing. J.B. was hypervigilant for signs of mother's intoxication, sniffing for the scent of alcohol during physical visits and looking for visual signs during virtual ones, even up to two years after detention (and likely to this day). In December 2020, more than two years after the detention, J.B. said that if she were returned to mother's custody she "would feel a little scared," and thought that mother would "drink and hit [her] again."
Furthermore, Rosina C. and a social worker both reported that mother was neither affectionate during visits nor very nurturing, and seemed to have formed no bond with J.B.
Finally, J.B. was removed from mother's custody at the age of six, and remained out of it for three years. Added to the year and that J.B. was out of mother's custody during the prior dependency proceedings, this means J.B. has been out of mother's care for half her life.
This evidence supported the juvenile court's conclusion that the parental bond between J.B. and mother was compromised, and the two shared no substantial, positive, emotional attachment.
Mother argues that the court introduced two impermissible factors into the parental benefit analysis: mother's past struggles with alcohol and the effect on J.B. of being returned to mother's custody, neither of which is relevant because mother is now sober, and retention of parental rights would not result in J.B.'s return to mother's custody. Mother finds the first of these factors in the court's statement that "the parent-child bond has been compromised because mother struggles with alcohol," and the second in the court's statement that J.B. "is aware of mother's struggle with alcohol and says that when mother is drinking, mother is physically abusive. Mother is unable to protect her, and she's afraid that things will happen."
Mother misconstrues the court's findings. In context, the court was commenting not on mother's history of alcohol abuse per se but on the impact it had on J.B. going forward.
Mother also contends the juvenile court "failed to engage in the subtle and case-specific weighing process of the child's relationship with mother as required by" Caden C. This is so, mother argues, because substantial evidence indicated that mother's children loved her and were happy to see her, and they enjoyed productive visits. Mother argues that "in light of" these reports, the department's contrary reports "cannot be credited," citing Mote v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 902 for the proposition that an appellate court may reject trial court findings which are "unreasonable, illogical, improbable or inequitable." (Id. at p. 909.)
Mother somewhat misconstrues the requirements of permanency determinations under section 366.26 and Caden C. Under the three-part permanency analysis the court first determines whether the parent and child enjoy regular visitation and then whether they enjoy a substantial, positive, emotional attachment. No weighing is required. Only if those two requirements are met need the court weigh the benefit conveyed by the relationship against the detriment of its termination.
As noted above, we review the court's determination whether a parent and child enjoy a substantial, positive, emotional attachment only for substantial evidence, and may not reweigh the evidence, evaluate the credibility of the DCFS reports, or resolve evidentiary conflicts. We will uphold the trial court's determination if it is supported by substantial evidence even if other substantial evidence points to a contrary determination. Given the substantial evidence of neglect and physical abuse in this case, along with J.B.'s obvious precocity, perceptiveness, and depth of feeling, nothing about the juvenile court's evaluation of the bond between mother and J.B. can fairly be characterized as unreasonable, illogical, improbable or inequitable such that its findings must be rejected as a matter of law. J.B. was and continues to be very much hurt by mother's behavior, to the clear detriment to their relationship.
Mother faults DCFS and the court for failing to commission a bonding study, as has been strongly urged by some appellate courts, but no authority holds that such a study is indispensable in the evaluation of a parent-child relationship. Absence of such a study therefore goes only to the weight of the evidence, a matter beyond our review.
DISPOSITION
The juvenile court's order is affirmed.
We concur: ROTHSCHILD, P. J., BENDIX, J.