Opinion
G062326
10-03-2023
In re B.H., a Person Coming Under the Juvenile Court Law. v. M.H. et al., Defendants and Appellants. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.B. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant M.H. Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance by Minor.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 20DP1350 Isabel Apkarian, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant M.B.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant M.H.
Leon J. Page, County Counsel, Karen L. Christensen and Deborah B. Morse, Deputy County Counsel, for Plaintiff and Respondent.
No appearance by Minor.
OPINION
GOETHALS, J.
M.B. (Mother) appeals from the juvenile court's order pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights to her now five-year-old daughter, B.H. Mother contends the juvenile court abused its discretion in deciding the parental-benefit exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply. M.H. (Father) also appeals the termination of his parental rights and joins in Mother's arguments to the extent they benefit him. (Cal. Rules of Court, rules 5.725(a) & (g) [termination of one parent's rights disfavored], 8.200(a)(5) [joinder in briefing]; see In re A.L. (2010) 190 Cal.App.4th 75 [reversal of termination of one parent's rights reinstates the other parent's rights].) As we explain, Mother did not meet her burden to establish the parental-benefit exception applied here. We therefore affirm the juvenile court's order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In Father's prior appeal from the juvenile court's orders at the six-month review hearing (In re B.H. (Mar. 15, 2022, G060683) [nonpub. opn.]), we set out the factual and procedural backdrop of B.H.'s dependency up to that hearing, when B.H. was almost four years old:
"B.H. has been in dependent care virtually her whole life. She was detained at birth in late 2017 by San Diego County's social services agency based on drug withdrawal symptoms she exhibited. Those dependency proceedings were subsequently dismissed, according to a social worker's report, after a 'settlement conference' at which B.H.'s mother (Mother) documented her compliance with a methadone treatment program.
"Within months, B.H. was detained again in Illinois by the relevant child protective services agency after she was found unrestrained in a car seat with drug paraphernalia within her reach while Mother and Father were purchasing heroin. The Illinois dependency supervision continued for more than two years, during which B.H. was placed with her maternal aunt in Anaheim and the parents also returned to Orange County. Those proceedings terminated in September 2020; within a month, on October 12, 2020, two syringes of suspected illicit drugs were found in B.H.'s diaper bag.
"Apparently due to a delay in the police investigation, the Orange County Social Services Agency (SSA) did not immediately detain B.H.; instead, pursuant to a safety plan SSA ensured that B.H. remained in her maternal grandmother's physical custody at her home, where Mother also lived. Simultaneously, SSA filed a dependency petition with the juvenile court. SSA had discovered pending drug possession charges against both parents and deduced that their rehabilitation, if any, had been short-lived. The Illinois dependency process had not included drug testing orders in Orange County for lack of an approved testing location. In an addendum report for the initial hearing on the petition, SSA requested that the juvenile court detain B.H., with authorization for SSA to release her to a suitable caretaker.
"At the detention hearing, which was held approximately two weeks before B.H. turned three years old, the juvenile court ordered B.H.'s initial removal from the parents' physical custody by ordering Mother to relocate immediately so that B.H. could remain solely in the maternal grandmother's care. The court authorized SSA to allow Mother and Father to live with B.H. 'upon three consecutive weeks of negative drug testing'; unfortunately, that milestone never occurred. In December 2020, B.H. was placed with her maternal aunt when the maternal grandmother could no longer provide a long-term placement.
"At the combined jurisdiction and disposition hearing held on February 24, 2021, which occurred after B.H. turned three years old, the juvenile court sustained the dependency petition allegations, assumed jurisdiction over B.H., and entered various dispositional orders. Among those orders, the court found that 'to vest custody with [the] parents would be detrimental,' that the '[w]elfare of the child requires that custody be taken from [the] parents,' and ordered '[c]ustody of the child to be vested with the Social Services Director for suitable placement,' which remained with the maternal aunt. The court approved the parents' respective case plans, which included tailored reunification services for each. The court found that, as of the date of the hearing, the extent of each parent's progress toward alleviating or mitigating the causes which required placement of B.H. out of their custody was 'none.'
"Mother made some progress by the date of the six-month review hearing; Father did not. At the hearing, the court noted that at an earlier hearing Father had been 'highly emotional and cursing in open court, [and] said he did not want services.' . . .
[¶] . . . [¶]
"The juvenile court found that 'while [Mother's] participation in services still [leaves] much to be desired,' she 'has been testing, has completed her parenting classes.' Based on Mother's 'minimal' progress, the court ordered continued reunification services for her and set the 12-month review date." (In re B.H., supra, G060683).)
The juvenile court terminated Father's reunification services; this court affirmed that order. (In re B.H., supra, G060683.)
During the ensuing review period, Mother enrolled in a methadone treatment program, but SSA was unable to confirm her participation. Both parents continued with consistent visits. The maternal aunt noted the visits made B.H. anxious, though over time this "improved some." Mother reported that B.H. claimed her aunt and uncle "spanked" her, but Mother did not grasp, as the caregivers indicated, that B.H. did not understand the meaning of the word. Mother denied she remained in a relationship with Father, but a police report showed she was in his vehicle when he was arrested for drug possession.
SSA initially recommended terminating Mother's reunification services at the 12-month review hearing, but withdrew that recommendation when Mother agreed to an enhanced "step-up" visitation plan that was contingent on her drug testing via a patch, maintaining her sobriety, and engaging in case plan services. Thirty days of negative tests would enable Mother to progress to unsupervised visitation; thirty more days would show she was ready for overnight visits. The juvenile court approved the plan and extended reunification services to 18 months, but Mother never met her milestones.
Mother began the 18-month review period by delaying her application of the test patch; once it was in place, she tested positive for methamphetamine. She declined another patch, opting instead to provide random urine testing, which she missed at least once. Mother claimed progress in individual therapy sessions but retreated from her agreed-case plan goal of ongoing methadone treatment, unilaterally withdrawing from treatment against the medical advice of her clinic.
Mother continued to deny contact with Father, but his car was often observed nearby during Mother's visits with B.H. Mother remained involved in B.H.'s medical, school and therapy appointments, and she consistently visited B.H., which B.H. enjoyed. In contrast, B.H. broke out in hives around Father's visits.
Mother accused the caretakers of "brainwashing" and "emotionally abusing" B.H., noting she also referred to them as her "parents." The caretakers denied instructing B.H. to call them mom and dad and indicated they refer to themselves in her presence only as "auntie and uncle."
Mother's various concerns led her to request a child and family team meeting; Mother voiced suspicions that the caretakers were speaking negatively about "the mother and the father," which they denied. The caretakers expressed concern about B.H.'s anxiety "due to the tension between the mother and the caregivers"; B.H's recent diagnosis with anxiety and attachment disorder; and B.H.'s "random stories of having to be saved." Mother and the caregivers agreed to set up an "email thread . . . for information and positive communication to help with [B.H.'s] anxiety."
At the 18-month review hearing, the social worker testified that Mother participated in her 12 hours of supervised visitation a week, but she was unable to meet the minimal testing requirements to progress to unmonitored visitation in her "step up" program. Mother did not sign a release for the social worker to obtain information about her previous enrollment in the methadone clinic.
Mother testified other parents with supervised visitation told her the drug patch was susceptible to false positives, which she claimed she experienced. Mother acknowledged she chose urine testing despite the court's order for patch testing and she claimed her recent missed test was due to car trouble. She denied knowing she had the opportunity to progress to unmonitored visitation upon testing clean on the patch for 30 days.
Mother described her visits with B.H. as "really cool," including "watch[ing] her learn," working with her on "subtraction or addition" in various play activities, and engaging her "amazing imagination," including by Mother "play[ing] like a cat on the floor pretending to be a cub and learning how to hunt." Mother also enjoyed "play[ing] with a lot of [B.H.'s] other friends there [at Olive Crest visits that B.H.] wants to play with, and so I just-I have a ball with them." Mother also "love[d] the cuddle time that we get to have" and recounted that, at the end of visits, B.H. would hug her and say, "Can I just stay with you forever?"
At the close of the hearing, the juvenile court found that Mother's positive drug patch test was "unequivocally [] valid," and that Mother chose not to do "the one thing" necessary for unsupervised visitation (consistently clean drug testing), nor would she sign a release for her methadone clinic records, participate in that "medication-assisted treatment" plan for heroin addicts, or enroll in an outpatient program in compliance with her "step-up plan." The court terminated reunification services, but authorized continued funding for drug testing and outpatient treatment if Mother chose to participate.
In the review period before the section 366.26 hearing (.26 hearing), Mother consistently tested positive for methamphetamine. She also missed several urine sample tests. In November 2022, Mother also tested positive for fentanyl. Mother claimed the positive tests were "bogus." The Orange County Health Care Agency terminated Mother from its outpatient treatment program because she did not attend any sessions or tests.
Olive Crest personnel expressed concern that Father, who was "in the parking lot all day every day," may have been dealing drugs based on foot traffic to his vehicle. Mother continued to deny contact with Father. After a traffic stop, Father was arrested again for possession of drug paraphernalia and, as on his previous arrest, Mother was present in the vehicle.
Mother questioned Olive Crest staff about its rules for the children such as "no running inside" and ignored other visitation rules. She also brushed off the caregiver's request for support to "reaffirm . . . positive behaviors with other people" when B.H. began tantrumming to avoid visits. During these episodes, the caregiver "reminded [B.H.] that she enjoys visiting her mom." B.H. nevertheless engaged in defiant behavior such as spitting and yelling at the driver and running from him in the parking lot. When Mother learned of these behaviors, including B.H.'s explanation that she would not cooperate with the driver because "she 'only listens to females,'" Mother provided no assistance; instead, she "giggled and smiled."
B.H.'s behavior gradually improved through therapy, where she made "slow and steady progress in treatment," developing her coping skills and ability to emotionally self-regulate. Mother told B.H. she would be coming to live with her. Now five years old, B.H. expressed fear she would "lose" her caregivers, with whom she had lived most of her life. They had provided a secure and stable home for her over the last two years and earlier for almost another year. According to SSA's assessment, they served as "the primary parental figures in [B.H.'s] life," including by "ensur[ing] and advocat[ing] for [her] medical, emotional, developmental and physical needs to be met."
The caregivers wanted "to adopt [B.H.] and provide her with permanency and long-term stability." She would be their only child. SSA assessed B.H. as adoptable, whether by her current relative caregivers or others, and recommended termination of parental rights to free her for adoption as her permanent plan.
Mother was not present at the .26 hearing; counsel read into the record her statement in which she acknowledged her trials with addiction, including that "relapse is common in recovery," but stressed that "[m]y daughter needs her mother in her life and her mother is me." Mother's attorney argued the parental-benefit exception to termination of parental rights should apply (§ 366.26, subd. (c)(1)(B)(i)), as did Father's counsel based on Father's relationship with B.H. Minor's counsel joined in SSA's recommendation to terminate parental rights.
The juvenile court found that Mother and Father met "the first prong" of the parental-benefit exception requiring "regular visitation and contact," but concluded B.H. did not have "such substantial positive attachment to either parent that severing that bond would outweigh the benefits of permanence; in her case, adoption." The court observed "one thing was clear, both parents love their child"; the court also found both parents were "[u]ndoubtedly" attached to B.H,. and both would "[p]robably suffer irreparable harm by the termination of parental rights."
The court added however "I can't make this decision from their perspective"; rather "[i]t's more about the bond between the parent and child and whether that bond is beneficial to the child." Finding a lack of "evidence that the termination of this relationship would cause the kind of harm to [B.H.] that would outweigh the permanency of adoption by her caregivers . . . her aunt and uncle," the court determined the parental-benefit exception did not apply and terminated Mother's and Father's parental rights. They now appeal.
DISCUSSION
The goal of juvenile court dependency proceedings is to ensure for children, to the extent possible, "stable, permanent homes." (§ 366.26, subd. (b).) "If the court cannot safely return a dependent child to a parent's custody within statutory time limits, the court must set a hearing under section 366.26." (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) The purpose of the hearing is '"to select . . . a permanent plan for the child."' (Ibid.)
"'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'" (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.); see § 366.26, subd. (c)(1).) "'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.'" (Celine R., at p. 53.) Ordinarily, if the juvenile court finds the child is adoptable, "the court must order adoption and its necessary consequence, termination of parental rights." (Ibid.)
There are exceptions to this rule, but they require departing from "'the norm'" of adoption only in "'exceptional circumstances.'" (Caden C., supra, 11 Cal.5th at p. 631.) Under the parental-benefit exception, the juvenile court may avoid terminating parental rights if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (id., subd. (c)(1)(B)(i)).
Under this exception, the parent must "establish, by a preponderance of the evidence," all of the following: "(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.) The first element focuses on whether visitation was regular. SSA does not dispute Mother established this element.
Under the second element, the parent must establish that he or she has a beneficial relationship with the child and, as the Supreme Court has directed, "the focus is the child." (Caden C., supra, 11 Cal.5th at p. 632.) Thus, "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.'" (Ibid.) As Caden C. observed, "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents." (Ibid.)
For the third element, the juvenile court determines "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.) To that end, "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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord Caden C., supra, 11 Cal.5th at p. 631 [citing Autumn H. as "the seminal decision interpreting the [benefit] exception"].)
In Caden C., the Supreme Court held that a parent's inability to reunify with his or her child because of unresolved struggles with addiction does not, by itself, disqualify the parent from invoking the parental-benefit exception. (Caden C., supra, 11 Cal.5th at pp. 637-642.) To the contrary, the exception still "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." (Id. at p. 630.)
A hybrid standard governs our review of the juvenile court's determination about the applicability of the parental-benefit exception. (Caden C., supra, 11 Cal.5th at p. 641.) The first two elements-consistent visitation and a beneficial relationship- involve factual determinations governed by the substantial evidence standard of review. (Id. at pp. 639-640.) The final step, in which the court assesses whether termination of parental rights would be detrimental to the child, is committed to the juvenile court's sound discretion; we therefore review that determination under the deferential abuse of discretion standard. (Id. at pp. 640-641.)
Throughout our review, we remain mindful that a parent claiming a beneficial relationship exception bears the burden of proof below. (In re A.L. (2022) 73 Cal.App.5th 1131, 1153; Autumn H., supra, 27 Cal.App.4th at p. 574.) Additionally, "we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., at p. 576.) Under the abuse of discretion standard, we determine whether the juvenile court's decision exceeded the bounds of reason and, in so doing, we cannot substitute our view for that of the juvenile court. (Caden C., supra, 11 Cal.5th at p. 641; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Mother's visitation remained monitored throughout the lengthy proceedings. Focusing largely on positive accounts of "affectionate" visits from monitored visitation logs, including visits in which "the family shared laughs and smile[s] with one another," Mother argues the parental-benefit exception applies because "no concerns were ever reported about [her] interaction with [B.H.] during visits-they always went well."
We are not persuaded. An absence of concerns does not trigger application of the exception, as if there were a baseline presumption in favor of preserving the parent-child relationship. Mother seemed to assume as much in her written statement to the court at the .26 hearing, relying on the natural mother-child relationship. But once reunification services are terminated, the importance of preserving that biological connection wanes and "'the focus shifts to the needs of the child for permanency and stability.'" (Celine R., supra, 31 Cal.4th at p. 52.)
Consequently, "[a] parent must show more than frequent and loving contact or pleasant visits." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) As we noted in In re G.H. (2022) 84 Cal.App.5th 15, 25, "Friendly or affectionate visits are not enough" to trigger the parental-benefit exception. A "loving and happy relationship" with a parent does not by itself establish the statutory exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)
Thus, while B.H. at least once expressed that she did not want to end playtime visits with Mother, and she was affectionate with her parents, she was similarly affectionate with her friends during group visits. As the social worker observed, "[B.H.] is a very fun, social and bright child" and, as Mother herself confirmed, "she is a social butterfly, she is not shy, she is a leader, has a heart of gold and is a happy child."
To "derail an adoption," something more is necessary than "merely . . . showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Whether and to what degree the child benefits from the relationship depends on the "'strength and quality of the natural parent/child relationship.'" (Caden C., supra, 11 Cal.5th at p. 634.)
In any event, whatever benefit a relationship with Mother may have conferred on B.H., the juvenile court did not abuse its discretion in concluding Mother failed to show substantial detriment to B.H. in the termination of parental rights. Just as the parent-child attachment under the second prong of the parental-benefit exception must be so "significant" that the child derives more than "some incidental benefit" from continuing it (Autumn H., supra, 27 Cal.App.4th at p. 575; see Caden C., supra, 11 Cal.5th at pp. 632-633), the detriment from termination of parental rights must be so substantial that "the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.'" (Caden C., at p. 633.) In other words, the benefit and detriment prongs of the parental-benefit exception highlight and reinforce each other. (See In re G.H., supra, 84 Cal.App.5th at p. 26 ["the prongs of the benefit exception . . . naturally inform and lead into each other"].)
Mother assumed detriment, but she did not prove its existence. Potential negative effects from severing a beneficial relationship might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Caden C., supra, 11 Cal.5th at p. 633.) Mother identifies no such symptoms attributable to the prospect of terminating her parental rights. Indeed, as the juvenile court observed, the only evidence of detriment in the record was B.H.'s fear "of losing [her] relationship with her caregivers, her aunt and uncle." Mother showed no such detriment.
Here, B.H. was removed from her parents' care at birth, lived all but a fraction of her life outside their custody, and spent most of her life with her prospective adoptive parents. Although Father and especially Mother participated in regular visitation, it never advanced to unsupervised overnight or weekend visits. During visitation, B.H. enjoyed a fun, playful relationship with the parents; however, Mother identifies no evidence that the parents' absence between visits negatively impacted B.H. There is no evidence B.H. and Mother had the kind of attachment to warrant foregoing the benefits of adoption in favor of maintaining the parental relationship. (Caden C., supra, 11 Cal.5th at p. 636.)
DISPOSITION
The juvenile court's order terminating Mother's and Father's parental rights is affirmed.
WE CONCUR: O'LEARY, P. J. MOORE, J.