Opinion
F073670
01-09-2017
In re C.M. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. MARIANA P., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 12CEJ300154-1 & 12CEJ300154-2)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Brian M. Arax, Judge. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
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Appellant Mariana P. (Mother) appeals from the juvenile court's order terminating her parental rights over her daughters C.M. and M.G. (collectively, the children) and selecting adoption as the permanent plan. Mother challenges the order only with respect to M.G., arguing that, in light of their "extraordinary bonded parent-child relationship," the court erred in failing to apply the beneficial relationship exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) We will affirm.
In this opinion, certain persons are identified by initials, abbreviated names, and/or by status in accordance with our Supreme Court's policy regarding protective disclosure. No disrespect is intended.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Case
In June 2012, a police officer placed a section 300 protective hold on the children due to domestic violence between Mother and her boyfriend and the officer's discovery in Mother's home of pipes used for smoking methamphetamine.
In October 2012, the children were declared dependents of the juvenile court and Mother was provided with family reunification services.
In August 2013, reunification services were terminated and the children were placed with Mother under a family maintenance plan.
In December 2013, dependency jurisdiction was dismissed and Mother was granted sole legal and physical custody of the children. B. June 3, 2015, Petition
On June 3, 2015, the Fresno County Department of Social Services (the Department) filed a juvenile dependency petition on behalf of C.M., who was then 14 years old, and M.G., who was nine years old. The petition contained one count under section 300, subdivision (b)(1) (failure to protect), with respect to both children, and one count under section 300, subdivision (c)(1) (serious emotional damage), with respect only to C.M.
According to the section 300, subdivision (b)(1) allegations, on June 1, 2015, C.M. disclosed to law enforcement and social work staff that Mother had left the children with Carmen A., a family friend. Carmen and C.M. both reported that Mother had been using methamphetamine based on Mother's "reaction, speech and recent weight loss." They further reported that Mother had only come to visit the children once a week. On June 2, 2015, Mother tested positive for methamphetamine and admitted she had used methamphetamine two days earlier. In addition, Mother did not have stable housing for the family. C.M. reported that they had been evicted from their apartment and moved in with a maternal aunt. Mother had subsequently left the children with Carmen and had been staying with a cousin.
According to the section 300, subdivision (c)(1) allegations, Mother's conduct had resulted in C.M. suffering serious emotional damage as evidenced by C.M.'s severe depression. On June 1, 2015, C.M. reported that she was so sad and depressed, for the past two weeks, she had been mixing and snorting Tylenol and Carmen's diet pills, so she would not have to think about Mother. C.M. further reported that Mother had left her and M.G. with Carmen for the past six or seven weeks. During this time, C.M. had had little contact with Mother.
C. Detention Orders
At the June 4, 2015, detention hearing, the juvenile court ordered the children detained and granted Mother a minimum of one supervised visit per week with the children.
D. Jurisdictional/Dispositional Orders
At the September 17, 2015, jurisdiction/disposition hearing, the juvenile court found the allegations of the dependency petition to be true and adjudged the children dependents of the court. The court denied reunification services to Mother and set a section 366.26 hearing for January 14, 2016. The court granted Mother two unforced supervised visits per month with C.M., and one supervised visit per week with M.G.
E. Section 366.26 Reports
1. January 11, 2016, report
In the section 366.26 report prepared on January 11, 2016, in anticipation of the original hearing date, the Department noted that the children had been in the home of their current care providers since June 1, 2015. The care providers wished to adopt the children, who were considered both generally and specifically adoptable. But because M.G. was not in agreement with a plan of adoption at that time, the Department recommended that the juvenile court select legal guardianship without dependency as the most appropriate permanent plan for the children to allow them to have a permanent and stable home while they continued to work with their care providers toward a more permanent plan of adoption.
Regarding visitation, the section 366.26 report reflected that, up to the time of the jurisdiction/disposition hearing in September 2015, Mother had attended all scheduled visits with the children. After the hearing, however, C.M. only visited with Mother a couple of times before C.M. decided to stop attending visits. M.G., on the other hand, continued to visit with Mother on a weekly basis.
The visits between Mother and M.G. were reported to be appropriate, with M.G. running to meet Mother when she saw her, and with Mother and M.G. showing affection towards one another. During visits, Mother and M.G. played games, watched movies, shared food or snacks, and talked about their family and daily life. When Mother got emotional, she took time to compose herself and then carried on with the visit. Mother was attentive and caring towards M.G., and M.G. appeared to reciprocate Mother's affection.
M.G.'s care providers and her therapist had a less positive view of the visits. The care providers reported that at the end of a recent visit, when the "visitor monitor" was not watching, M.G. emptied her piggy bank and gave the money to Mother. Noting this incident in a letter dated January 4, 2016, and attached to the section 366.26 report, M.G.'s therapist, Bryndahl Childers, stated that it was "very apparent from working with [M.G.] that she has an overwhelming and unhealthy sense of responsibility for her Mother's care and well[-]being."
In the letter, which is addressed to the social worker assigned to this case, Childers explains it was "written, per your request, to update you on the progress of mental health treatment for [M.G.]" and recounts that M.G. was "referred ... for mental health services in June 2015" and it was recommended M.G. "participate in weekly therapy sessions to reduce symptoms of trauma, and foster secure attachments with caregivers." --------
In addition to reporting the recent piggy bank episode, Childers noted that the care providers had also reported concerns about M.G. having "uncensored" communication and visits with Mother because the care providers had observed that M.G. often displayed "regressive type behaviors before and after visits with Mother resulting in a heighten[ed] sense of anxiety and emotional disturbance." Childers concluded: "It should be taken into consideration the effects of her Mother's contact on [M.G.'s] social and emotional well-being and possible contact should be censored more closely and/or reduced to avoid overwhelming distress."
The Department further reported that, although M.G. appeared to be meeting all of her developmental milestones and seemed to have normal gross and fine motor function, M.G.'s care providers had expressed concerns about her speech and gross motor skills. According to their observations, M.G. appeared to have some deficiency in her running and to be clumsy, falling and spilling things easily, and, at times, her speech was unclear and she regressed to "'baby talk.'"
Regarding the proposed permanent plan as to M.G., the section 366.26 report noted that M.G.'s current care providers had expressed the desire to adopt both M.G. and C.M. However, M.G. had "adamantly" expressed she did not wish to be adopted and had stated that she would like to live with Mother "'because she is the only mother she knows.'" At the same time, C.M. had stated that she liked living in her current placement because the care providers were nice and she liked them.
The Department opined that M.G. "appears to be parentified and worries about her mother's well[-]being," noting it was "recently reported that [M.G.] ha[d] given her mother her allowance a couple of times during visits." The Department further opined that M.G. needed a permanent placement where she could "start forming a healthy parent/child relationship." Although M.G.'s current care providers loved and were willing to provide M.G. with such a placement, and M.G. continued to work with her therapist to form a more secure attachment with the care providers, M.G. appeared to have "a strong relationship with her mother as described by her interactions during the visits and her verbally stating that she loves her mother and would like to go back to live with her." The care providers stated they loved M.G., wanted to respect her wishes, and hoped to adopt her and C.M. in the near future.
2. February 22, 2016, addendum report
In an addendum report prepared on February 22, 2016, the Department changed its previous recommendation of legal guardianship without dependency and recommended termination of parental rights and selection of adoption as the most appropriate permanent plan for the children. The addendum report contained an extensive analysis of the two questions it identified as critical to its recommendation; namely, the "'strength of relative bonds'" between the children and Mother and their care providers, and "the paramount concern" of the children's need for stability and continuity.
Regarding the first question of the relative bonds between M.G. and Mother and her care providers, the four specific areas the Department looked at were "structure, nurturing, challenge, and engagement." As to structure, the Department observed that Mother had been able to provide appropriate structure during her visits with M.G. by setting rules and directing M.G. when they were playing board games. The Department further noted that during visits, Mother and M.G. engaged in games and conversation and appeared to enjoy each other's company.
In terms of nurturing, Mother appeared to be comfortable giving affection to M.G. and would tell M.G. she loved her and give her hugs and kisses. M.G. would reciprocate Mother's affection and sit next to her. At the end of visits, M.G. and Mother embraced each other before going their separate ways. At times, M.G. appeared to be worried about Mother's emotional state, as evidenced by M.G. "constantly" asking Mother "if she [was] okay, as to reassure herself." Mother, it was noted, "can easily become emotional and cries."
Regarding Mother's ability to appropriately challenge M.G., it was noted that Mother and M.G. made small talk, played different board games, watched movies, and appeared to enjoy their time together. Mother was able to show M.G. how to play different games, she often asked M.G. about her school grades and extracurricular activities, and she encouraged M.G. to keep up the good work.
As to the factor of engagement, the Department reported that Mother appeared to be effective in her efforts to engage M.G. during visitations. Mother engaged M.G. by making conversation with her and asking her about her day, school, and other activities. Mother and M.G. talked about family and engaged in games during visits. When playing, Mother and M.G. tried to figure out new games together.
The Department's assessment of the same four factors with respect to the care providers was extremely positive. The Department reported that the care providers provided "excellent structure" for the children, who had both thrived "tremendously" in their home, and that the care providers possessed "excellent engagement skills." The Department listed numerous examples of the areas in which the care providers reportedly excelled, including engaging the children in family activities, such as weekend trips, attending church on Sundays, and movie nights.
The care providers were also reported to be very affectionate with the children, who appeared receptive to the care providers' affection and looked to them to meet their nurturing needs. M.G. would seek the care providers' reassurance. For example, when M.G. had bad dreams, the prospective adoptive mother would sit next to her until she fell asleep.
The care providers also demonstrated the ability to stimulate the children's developmental growth by encouraging them to be active and get involved in age-appropriate activities including basketball, band, church activities, and social activities with other children in the neighborhood. When M.G. was struggling with school, the care providers helped her by providing tutoring services and rewarding her for accomplishing set goals. They challenged the children to do well academically and were very involved to ensure their academic success. They also allowed the children to explore new activities and interests and supported them in the hobbies and sports they chose.
Regarding the question of the children's need for stability and continuity, the Department briefly summarized their history of having already been twice removed from Mother's care. The Department thus reported the children were first removed from Mother in 2012 due to emotional and physical abuse, as well as neglect due to substance abuse and domestic violence. After living in foster care from June 16, 2012, until June 14, 2013, the children were returned to Mother under a family maintenance plan. Mother subsequently lost her apartment in October 2014, after which the children began residing with a family friend with Mother seeing them on a weekly basis. Mother eventually resumed the use of drugs in April 2015, which led to the children reentering foster care for a second time on June 1, 2015.
The Department went on to report that the children had been in their current placement since June 1, 2015, and that the placement had been stable and the children appeared to be healthy and well cared for. The care providers and M.G.'s older sister, C.M., were willing and open to finalizing adoption as soon as possible. M.G., on the other hand, had expressed her desire to return home with Mother. Although M.G. was affectionate with the care providers, the Department noted she seemed guarded because she wanted to keep her current relationship with Mother. It was also noted that M.G. often worried about Mother. The Department concluded that M.G. needed stability, structure, support, and a safe environment, which the current care providers had demonstrated they would be able to provide for her.
F. April 2016 Section 366.26 Hearing
The continued section 366.26 hearing commenced on April 14, 2016. At the beginning of the hearing, the Department's counsel and children's counsel both expressed agreement with the Department's most recent recommendations and submitted on the reports.
1. M.G.'s testimony
Mother's counsel first called M.G. to testify. M.G. testified that currently she most wanted to live with her care providers because Mother was "not making a very good choice." Asked if she would change her mind if Mother started making good choices, M.G. replied that she did not know.
M.G. further testified that she liked visiting Mother, she would like to visit Mother more often, and she would feel "sad" if she were no longer able to visit Mother. When asked to say why she liked to see Mother, M.G. responded, "I like to see my mom and visit her because she's, like, more important to me." Mother's counsel then asked, "She's more important to you than what?" Counsel's question led to the following exchange:
"[M.G.]: Than—umm, she's more important to me because she's my mom, and I'm afraid someone is going to be changing that.
"THE COURT: And she might not have meant more important than the [current care providers] or anyone else. She might have just meant that she is more important. Did you mean to say that she's more important than
[the care providers] or just trying to tell us mom is really, really, important to you?
"[M.G.]: Just telling Mom that she's really, really important to me."
When asked what things M.G. really liked about Mother, M.G. testified that Mother was "beautiful," "really talented" in drawing pictures, and "really brave" in making sure they were okay if something threatened to hurt them like "any fires." M.G. liked visits with Mother and liked it when Mother brought food to visits. During visits, M.G. and Mother would play games, color, and talk a lot. M.G.'s favorite thing to do with Mother during visits was to read books.
On cross-examination by the children's counsel, M.G. testified, in pertinent part, as follows:
"Q [M.G.], do you ever worry about your mother?
"A Yes. Yes, I do. [¶] ... [¶]
"Q Why do you worry about your mother?
"A Because I'm afraid that something is going to happen to her.
"Q Why do you think that?
"A Because, umm, because, like, last time there was, like, a thunderstorm because, like, I was worried if she was going to be okay. [¶] ... [¶]
"Q Why did you think she needed help?
"A Because she, like, moves around, like, goes to different places, like, go to, like, houses and, like, like, stays there for, like, like, a sleep—not a sleepover, but, like, stays there and, like, goes to, like, my, friend's house, my cousins, and stuff.
"Q And who told you that she does that?
"A Well, I just know that she, like, moves around because I've been, like—because I moved around with her. Because, like, the first place that we stayed at was Carmen's and then we went to my cousin's, like, his
name is Jack. And then after Jack we went to Cassandra's house, which is my mom's friend. [¶] ... [¶]
"Q So you guys went to Carmen's house and then Jack's house and Cassandra's house, and are you afraid that she's at unsafe places?
"A Well, there's only, like, one place that's—well, well, most likely they're all safe, but, like, Jack's house is, like, kind of, like, icky and dirty and ugly."
M.G. confirmed she would still worry about Mother if she were to not visit her anymore.
On redirect examination, when asked if she thought she would worry about Mother more or less than she did right now, or about the same, if they were not visiting anymore, M.G. testified, "I'd be worried more if I couldn't visit her anymore."
2. Social worker's testimony
Mother's counsel next called social worker Arianna Solis to testify. According to Solis's testimony, she was assigned to this case in October 2015. At that time, and every time Solis had spoken to M.G. since, M.G. had told Solis she wanted to live with Mother.
Solis observed two visits between Mother and M.G. between January and February 2016. The first visit went well. Mother and M.G. played games, watched movies, and talked about their day.
At the second visit, Mother was crying and visibly upset. Solis had to step out with M.G. for a little while to give Mother time to compose herself. When the visit resumed, Mother and M.G. were affectionate with one another. They played games and watched a movie. M.G. was also excited because Mother had brought food to the visit.
Solis confirmed that M.G. often expressed that she missed Mother. Solis testified that whenever they talked about adoption, "she'll say she loves her mom, that—she has stated that this is her only mom that she has."
G. Juvenile Court's Ruling
Mother failed to appear on April 21, 2016, the second day of the section 366.26 hearing, when she was scheduled to testify. Mother's counsel advised the juvenile court that Mother had contacted his office to communicate she had been hospitalized for respiratory distress and requested a continuance.
The juvenile court decided not to delay the hearing further but ruled it would find Mother had failed to appear, submit the matter on the arguments of counsel, and then make a ruling that would "not be final" and give Mother the opportunity to testify at a continued hearing date, provided she were able to provide reliable, independent proof of her alleged hospitalization.
After listening to the arguments of counsel, the juvenile court tentatively found the children adoptable, found the beneficial relationship exception to adoption inapplicable, and ordered termination of Mother's parental rights.
When Mother failed to appear at the continued hearing on May 2, 2016, the juvenile court issued an order deeming its April 21, 2016 ruling to be the court's final judgment.
In its ruling on April 21, 2016, the juvenile court provided a detailed and thoughtful explanation—spanning approximately 10 pages of the reporter's transcript—in support of its finding that the beneficial relationship exception to adoption was inapplicable to preclude termination of Mother's parental rights over M.G. We now quote extensively from that explanation to provide context for Mother's arguments on appeal:
"In the beneficial relationship exception analysis for mother and child[, the] first question would be is there a parent/child relationship? Undeniably yes. Second, has mother regularly and [consistently] visited? Undeniably yes. Is there a beneficial relationship between child and parent such that the importance and benefit of maintaining that relationship outweighs ... the benefit of the adoptive placement? Now in order to answer that question I have to look at it in my mind in two ways. One, is
the nature of the bond and again the expressed desires of [M.G]. And, two, the benefit of that relationship....
"Well, I'm repeating what's been said over and over again but I think we all recognize there's [a] [p]arent and child bond between mother and [M.G]. The bond is strong and I understand [M.G.'s] expressions and desires.... [B]ut I also think I understand as has been suggested where it comes from and I was incredibly enlightened on my observations during this trial, and that's been captured in argument already in part but [M.G.] went to her mother. Her mother was crying and being very demonstrative and part of that so understandable the pain and agony is so real and she expresses emotions.
"In a way it's so unhealthy for the children to see and in its own way maybe insensitive or selfish but certainly damaging. Mother was [carrying] on quite extraordinarily both facial gesture[s] and disagreements ... but also crying profusely and I saw [M.G.] go to her mother and rub her shoulder and kiss her on the cheek. I saw [M.G.] at a break embrace her mother and how am I to understand and interpret that[?] I understand and interpret [that] to be a bond I already described but ... there's different types of bonds. Some are good and some are bad but ... this is not necessarily a positive bond.... [M]y judgment, ... as well as the judgment of the therapist who is the critical professional in this regard that I rely my independent judgment and observations almost primarily [on]. [M.G.]'s absolutely parentified. It was so powerful and sad to hear her say [she] worr[ies] about [her] mom. To say so powerfully why the places we live, multiple moves, and to say [that] in an age appropriate or maybe a little bit younger [than] age appropriate. What happens in the thunderstorm to mom out there alone in the rain? That's not healthy for a child. That's not a positive bond. That's love and attachment to a parent which you naturally have ... but she's parentified and she cannot have expressed it better. Her going to comfort her mom rather than vice versa with her mom carrying on and her worried about her mom being in the rain. I'm sorry. That's not good or healthy, and it's certainly understandable for her sad[,] sad experience.
"So, one, I don't think it's a healthy bond. Two, in terms of [M.G.]'s expressions .... I have the distinct and definite impression that there is a bit of a developmental delay or immaturity in [M.G].... So her express desires about wanting to be with her mom I saw from a very tender, innocent and loving perspective but [a] very childlike and immature perspective. A protective perspective.
"... She's expressed it many times and she's said it here the other day about desires so I take that into account and [it's] important to me but I don't think it's good judgment and I don't think it's mature judgment. I think it's a loving [and] in some ways damaged judgment or protective judgment.
"So when it was announced that the therapist said that there was a sense of responsibility for mother's care and well-being and there was parentification I could not have more perfectly stated by my judgment .... The idea if it were true and were announced in the records it's not in the visitation narrative but the reporting [party stated] that she gave money to her mother. My goodness what a more dramatic example of that problem now being described.
"Now then[, Mother's counsel] makes an extremely appealing argument. Really caught me by surprise and I thought about it a lot. It was good argument. Judge, there's very little to gain by adoption. [The children would] [s]till be in the same placement[.] [G]uardianship is a stable plan and won't damage the parent/child certainty of having the right to contact and it's possible at least that [M.G.] could go the other way and become bitter and harder to manage and so on.
"In thinking about that. It's hard to agree because that's not what the law and public policy of the state of California says. It says that th[ere] is the distinct and definite preference for adoption for the highest level of permanence and stability, but if I accept the argument at face value that it really is a valid point of view and very little to gain by adoption and while there's a deep bond and even if it were true. Even if that were accepted ... that there was very little to gain. It would certainly be a lot to lose in maintaining this relationship. My opinion the relationship is actually very dangerous and destructive to [M.G.] and when I analyzed what a beneficial relationship is you have to talk about the person. Mother's love and care for her children is undoubted by any mother[.] [T]hat was really demonstrated. Somewhat selfishly in some ways as I suggested in this Court[room] but really is there even if it's dysfunctional. I don't think [M.G.] got bonded to her mother by accident. I think a lot of it's [M.G.'s] native goodness but it's not by accident and the two of them were together for quite some[]time, but let's remember the beneficial relationship mom struggles.
"One of them is that mom has been to Pathways. I'm going to take judicial notice of my entire file. Entire history of this case and I'm going to take judicial notice that Pathways is a [dual] diagnosis program for those having substance abuse and mental health issues. I have to be careful to not
say Pathways [says mom has] mental health problems therefore mom's a bad person. Absolutely positively not.... But when a person has ... serious mental health issues and difficulties and if those [issues] express themselves as bad judgment or behaviors in front of the children and instability in the life of the child or children[,] there's manifestation and that is the case here and is part of the consideration of beneficial relationship ....
"The children were removed in 2012. Why? Over reports of officers first coming to the home. [C.M.] told [one of the officers] that [Mother's boyfriend] grabbed mother by the mouth, choked her and kicked her in the stomach. [The officer] confirmed two pipes used for smoking methamphetamine were located in the home. I'm referring to jurisdiction report of July 25, 2012 .... On June 16, 2012, ... a social worker ... interviewed [M.G.] and [M.G.] is quoted ... saying exactly this. Quote, '[The boyfriend] always fights with my mom.' Close quote. Then in general terms without quotes [M.G.] stated she saw [the boyfriend] kick, push and tell [Mother] to quote, 'Shut up.' Close quote. [M.G.] indicated the ongoing domestic violence made her, this is what I'm emphasizing, mad and afraid. And I emphasize this as well[,] this statement[:] [M.G.] admitted to crying while watching the domestic violence. This was not an isolated incident.
"So then we go through a year of services and dragging these children through the system and family maintenance. Graduate out and not too long thereafter here we are back again more instability, [im]permanence, damage, and destruction in the lives of the children on allegations and proven [that] mother was using and abusing methamphetamine and proven ... true that on June 1 [2015, C.M.] disclosed to law enforcement and social worker staff her mother left her and [M.G.] with family friend Carmen [A.] and had been using drugs.
"This is quoting further from the petition .... [Carmen] and [C.M.] report [Mother] is using methamphetamine based upon [Mother]'s reaction, speech and recent weight [loss]. This is what I emphasize now. [Carmen] and [C.M.] report [Mother] has only come to see the children once a week. Hardly positive bond impacted there and unstable housing was also ... proven as part of the jurisdictional allegations[,] meaning more instability again so [M.G.]'s powerfully testified for her part.
"And then on the terms of the bond[,] I understand and the beneficial relationship that a parent's child—excuse me. A parent's relationship with a child and mother's relationship with a child is individual and ... each child and each parent is different and therefore the relationships are
different but I will note in the addendum report on jurisdiction [and] disposition of August 20, 2015, ... that [C.M.] had been refusing to visit with her mother. [C.M.] reported she does not want to visit with her mother because [Mother] is very negative towards her and makes negative comments. [C.M.] reported she would not be willing to participate in conjoint therapy with her mom if she does not believe it will help. That's [C.M.] and mom. Not [M.G.] and mom. The point being [C.M.]'s older, more experienced, more sophisticated and regrettably more time to be damaged and it's a bit instructional if I'm to maintain this relationship as beneficial and the behaviors I observed in Court and occurring in the lives of these children especially since 2012 continued that these same manifestations might equally likely happen with [M.G.] has happened with [C.M.] as we were to presume that [M.G.] might get bitter about the lost relationship and her future destabilized.
"So all of that by[]way of saying one simple thing. That relationship is not beneficial. Mom is incredibly unstable sadly. The bond is there but it's not healthy.... There's another potential now that I think of it[,] especially with mother's behavioral issues and issues discussed with her mental health concerns and possible concern [of her] being under the influence ... during visitation and that is this. With guardianship in place[,] the possibility of changing the plan in theory to ... the guardian to relinquish the guardianship is always there and it's indeed possible that mother could actively work to destroy the relationship, disrupt the guardianship all to the emotional instability and detriment of [M.G]. That's perhaps part of the reason for the highest form of permanence and stability of adoption because the opportunities for mischief and [an] unstable parent to undermine [an] existing loving relationship and appropriate care.
"So generally and specifically adoptable for [M.G]. Parent/child relationship exist[s]. Bond exist[s]. Regular and consistent visitation. Relationship is not beneficial. It is destructive. [M.G.]'s desires are noted. Are important. Are not good judgments in becoming part of her loving nature and parentified nature. [¶] Where [M.G.] goes here from great love, care and stability that's presuming she would be harmed is more than speculative and directly contrary to the evidence we've been given by the therapist [who has] sought to restrict contact due to active damage."
Mother now appeals from the juvenile court's May 4, 2016 order, which incorporated as its final judgment the court's April 21, 2016 ruling, finding the beneficial relationship exception to adoption inapplicable and terminating Mother's parental rights over C.M. and M.G.
DISCUSSION
Mother contends the juvenile court erred in failing to apply the beneficial relationship exception to adoption because she met her burden of proving the existence of a beneficial parent-child relationship, the termination of which would be detrimental to M.G., and the record lacks substantial evidence supporting the court's finding that the exception was inapplicable. The Department counters that substantial evidence supports the court's finding that Mother's relationship with M.G. was not healthy or positive, and the court did not abuse its discretion in declining to find that termination of parental rights would be detrimental to M.G. We agree with the Department.
A. Applicable Law
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) One of these statutory exceptions is the beneficial relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights if the "[t]he 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).) The burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (Bailey J., supra, at p. 1314.) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception, the juvenile court may choose a permanent plan other than adoption if it finds the beneficial relationship to be "a compelling reason for determining that termination would be detrimental to the child ...." (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, at p. 1314.)
The beneficial relationship exception occurs when a significant parent-child relationship is found to exist. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) The juvenile court must then engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; see In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154-1156.)
B. Standard of Review
Because the appropriate standard of review is somewhat confusing, we set it out in detail here. On appeal after a court has rejected a parent's efforts to establish the exception, two different standards of review apply. (See In re K.P. (2012) 203 Cal.App.4th 614, 621-622 (K.P.); Bailey J., supra, 189 Cal.App.4th at p. 1314.) Since the parent must show the existence of a beneficial parental relationship, which is a factual issue, we uphold a court's express or implied finding that there is no beneficial relationship if supported by substantial evidence. (K.P., supra, at pp. 621-622; Bailey J., supra, at p. 1314.) More specifically, a challenge to a court's failure to find a beneficial relationship amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. (Bailey J., supra, at p. 1314.)
The second requirement for the exception is that the beneficial parental relationship constitute a "compelling reason for determining that termination would be detrimental ...." (§ 366.26, subd. (c)(1)(B); K.P., supra, 203 Cal.App.4th at p. 622.) Although grounded in the facts, the court's determination of this issue is a "'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. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Bailey J., supra, 189 Cal.App.4th at p. 1315; see K.P., supra, at p. 622.)
For instance, when a parent has had custody of the children and visited consistently when he or she did not have custody, and had an established bond recognized by the agency workers, substantial evidence supports the first requirement for application of the statutory exception. (K.P., supra, 203 Cal.App.4th at p. 622.) The determination then becomes whether, under the facts of the case, there is a compelling reason for the court to order a plan other than adoption, and whether the court abused its discretion in failing to do so. (Id. at pp. 622-623.) In simplest terms, the establishment of the beneficial parental bond exception depends upon a parent having developed such a beneficial bond that it would be detrimental to sever it. The benefit from continuing the child's relationship with the parent would outweigh any benefit the child derived from his or her adoption. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.)
In her reply brief, Mother criticizes the hybrid combination of substantial evidence and abuse of discretion standards adopted by the appellate courts in Bailey J., supra, 189 Cal.App.4th at pages 1314-1315, and K.P., supra, 203 Cal.App.4th at pages 621-622, just described, and contends the appropriate standard of review is the substantial evidence test of Autumn H., supra, 27 Cal.App.4th at pages 574-576. The Department, on the other hand, advocates for application of the "composite approach" of Baily J. While we find the Baily J. approach more compelling, we note that the differences between the two standards are insignificant in this case, as they both give deference to the juvenile court's judgment. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) "'[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only "'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' ... "' [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a 'compelling reason for determining that termination would be detrimental to the child.' (§ 366.26, subd. (c)(1).) That is a quintessentially discretionary determination. The juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of appellate court deference." (Ibid.)
C. Analysis
The detailed explanation provided by the juvenile court judge at the April 21, 2016, hearing in support of his determination that the beneficial relationship exception was inapplicable in this case provides an apt illustration of why such a high degree of appellate deference is accorded to a juvenile court's factual findings and discretionary determinations in this context. The judge's thorough knowledge of the case and the individuals directly affected thereby is readily apparent. The judge painstakingly described not only all the facts in the record—including from the record of the prior dependency case of which he took judicial notice—supporting his determination, but also his observations of Mother's demeanor and interactions with M.G. in the courtroom, while offering a cogent explanation as to how these observations supported his conclusions that M.G. was "absolutely parentified" towards Mother and that their relationship, despite the apparent love and strong emotional bond between them, was not a beneficial or healthy one.
Mother's assertion that "no substantial evidence" (italics added) supported the juvenile court's conclusions is simply untenable in light of the record, which establishes the facts described by the court in support of its ruling. In focusing on evidence favorable to her and overlooking, minimizing, and/or criticizing evidence relied on by the juvenile court, Mother's arguments on appeal are "essentially asking us to reweigh the evidence and to substitute [her] judgment for that of the trial court." (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) For example, Mother asserts the visitation logs attached to the Department's reports are "replete" with examples of incidents in which Mother "parented [M.G.] without any suggestion of emotional parentification of the child" and that "[n]one of the visitation logs indicated a lack of boundaries by mother with her daughter during visits." "In contrast," Mother complains, "all the therapist had to offer ... was a generic letter (very similar to [the letter the therapist wrote concerning C.M.]) which suggested [M.G.] had an overwhelming and unhealthy sense of responsibility for her mother's care and well being." Mother further complains that, "the therapist cited no specific examples of the perceived unhealthy sense of responsibility nor did the therapist testify in court."
Such complaints, in which Mother suggests that the evidence she criticizes was entitled to less weight than the evidence on which she relies, does not show that the criticized evidence failed to qualify as substantial evidence. However, her criticisms are without merit in any event. The therapist's conclusions regarding the negative mental health effects on M.G. of visits with Mother were not groundless or based on mere speculation, as Mother's arguments imply. Rather, as the Department's brief correctly points out, they were expressly based on the therapist's experience of working with M.G. in therapy on a weekly basis since June 2015, as well as on information provided to the therapist by M.G.'s care providers with whom M.G. had been living since June 1, 2015, including their unrefuted reports that M.G. exhibited regressive behaviors and symptoms of anxiety before and after visits with Mother.
Mother does not dispute that, if true, the care providers' reports that M.G. gave Mother her allowance on a couple of occasions during visits, or recently emptied her piggy bank and given the contents to Mother, would constitute substantial evidence of parentification or an unhealthy parent-child relationship. Yet Mother presented no evidence nor did she attempt to elicit testimony directly disputing that these incidents occurred. On appeal, Mother simply asserts "the visitation logs do not support the contention of the therapist [that M.G.] gave all of her money to mother at a visit." (Italics added.) But the piggy bank incident was not a contention of M.G.'s therapist. It was a factual circumstance reported to the therapist by M.G.'s care providers, who also reported the incident to the social worker, as is reflected in the section 366.26 report, in which the social worker reported that the care providers had reported that the incident occurred at the end of a supervised visit, when the visit monitor was no longer watching Mother and M.G., explaining why the incident was not mentioned in the visitation logs.
Generally speaking, however, the fact that a particular incident or type of behavior was not specifically mentioned in the visitation logs does not, as Mother suggests, necessarily prove that such incident or behavior did not occur. We therefore disagree with Mother's assertions to the effect that the visitation logs undermined the therapist's negative conclusions about Mother's relationship with M.G., including her recommendation that visits between them be reduced and more closely monitored. Moreover, contrary to Mother's suggestion, the record did contain evidence of M.G. acting in a parentified manner during visits with Mother. The visitation logs were not the only evidence of what occurred during visitation. The social worker also attended some visits and described her observations in the section 366.26 reports. Thus, in the addendum report prepared in February 2016, the social worker noted both that Mother could easily become emotional and cry and that M.G. sometimes appeared to worry about Mother's emotional state, explaining M.G. was "constantly" asking Mother "if she [was] okay."
Thus, the record does not simply show Mother would become emotional and then appropriately compose herself during visits, as she claims on appeal, it also shows that M.G. would react negatively and express a sense of responsibility for and seek assurances regarding Mother's emotional state by repeatedly asking Mother if she was okay. The social worker's observations were consistent with the judge's observations of M.G.'s interactions with Mother in the courtroom and his opinion that they constituted an outward manifestation of the child's parentification in that M.G. more often assumed the parental role of comforter to Mother, instead of the other way around.
Indeed, despite M.G.'s apparent love for Mother and enjoyment of their visits, the record, including the visitation logs, contains no evidence M.G. would ever cry, seem sad, or have any difficulty leaving Mother and returning to her care providers at the end of visits. In reviewing the visitation logs Mother cites, the only mention of crying and sadness we observed referred to Mother's emotional state. Our review of the record in this case leads us to believe that Mother's arguments tend to overstate the positive implications of the visitation logs, and to conclude that the record neither demonstrates that the juvenile court's determination that the beneficial relationship exception was inapplicable was unsupported by substantial evidence nor that the court abused its discretion in so finding. (See, e.g., In re J.C. (2014) 226 Cal.App.4th 503, 533-534 [mother failed to demonstrate harm would ensue from termination of parental rights where record showed the child easily separated from mother at conclusion of visits and readily returned to caretaker's home, and there was no bonding study or evidence to counter the social worker's conclusion the child would not suffer any detriment].)
We are also unpersuaded by Mother's attempt to analogize this case to In re Jerome D. (2000) 84 Cal.App.4th 1200, in which the appellate court found sufficient evidence of detriment and concluded the juvenile court erred in failing to find the beneficial parent-child relationship exception applied when the nearly nine-year-old son had lived with his mother for the first six and one-half years of his life, he "seemed lonely, sad, and ... 'the odd child out'" (id. at p. 1206) in his placement, he wanted to live with his mother, he enjoyed unsupervised night visits in her home, and a psychologist opined the son and his mother "shared a 'strong and well[-]developed' parent-child relationship and a 'close attachment' approaching a primary bond" (id. at p. 1207). Similarly, in In re Amber M. (2002) 103 Cal.App.4th 681, the appellate court reversed termination of parental rights, finding the exception applied, where a psychologist, therapists, and the court-appointed special advocate all concluded a beneficial parental relationship clearly outweighed the benefit of adoption, the two older children had a strong primary bond with their mother, and the younger child was strongly attached to her. (Id. at pp. 690-691.)
Mother did not present evidence demonstrating harm would ensue from termination of parental rights similar to that presented in these cases. In fact, by the time M.G. testified at the continued section 366.26 hearing on April 14, 2016, she no longer wished to live with Mother but testified to her preference to live with her current care providers, who loved and wished to adopt her and C.M., and with whom the children had lived for almost a year and under whose care they were reportedly thriving. Instead of worrying about their emotional well-being or seeking to comfort them, like M.G. often appeared to do with Mother, the evidence before the court indicated that M.G. sought comfort from the care providers when she was upset and depended on them to meet her emotional needs in an age-appropriate manner.
And although Mother relies heavily on M.G.'s testimony that she would be "sad" if she were no longer able to visit Mother, M.G.'s overall testimony provides more support for the juvenile court's conclusions than for Mother's assertions on appeal. In her opening brief, for example, Mother acknowledges that M.G. worried about her but asserts that M.G.'s testimony showed she worried "not because she was parentified as the juvenile court found, but because mother was the most important person in her life and she feared never seeing her again." This was not what M.G. testified. As seen in the above quoted exchange between Mother's counsel, M.G., and the juvenile court, the court asked clarifying questions revealing that M.G. did not mean to say either that Mother was the most important person to her or that she was more important to her than the caregivers. Nor was she, in the court's words, "just trying to tell us mom is really, really important to [her]." (Italics added.) Rather, M.G.'s exact testimony was that she was, "Just telling Mom that she's really, really important to me." (Italics added.)
The variations just illustrated are significant because they show the focus of M.G.'s words was different than those of Mother's counsel and the juvenile court. Whereas counsel and the court seemed to be focused on ascertaining what M.G. meant to communicate to the court through her testimony, M.G.'s own words indicated her focus was more on how Mother would interpret her testimony and supported the inference that M.G.'s primary concern was with reassuring Mother of how important Mother was to her, which was consistent with the view that M.G. felt a sense of responsibility for Mother's emotional well-being and the court's conclusion that M.G. was parentified.
M.G.'s testimony regarding the specific worries she had concerning Mother similarly provided stronger support for the juvenile court's conclusion that she was parentified than for Mother's claim that such worries were not evidence of parentification and arose only from the substantial parent-child bond they shared. Mother's assertions in this regard fail to address the fact that the worries M.G. described as having for Mother were expressly based on M.G.'s direct exposure to the instability and impermanency caused by Mother's substance abuse and inability to secure stable housing, which had resulted in her moving the children from house to house, and caused M.G. to feel worried that Mother would continue doing the same thing on her own, and had thus contributed to M.G.'s fear about what would happen to Mother during a thunderstorm. The fact that M.G. predicted such worries would increase if she could no longer visit Mother suggested she held an unrealistic belief she could somehow protect or help Mother stay safe if they remained in contact, despite the fact that M.G. was only a 10-year-old child, and helpless to prevent Mother from resuming the destructive lifestyle that had already caused the children to enter the foster care system twice, and to spend a total of almost two years living outside of Mother's care.
In sum, we conclude the juvenile court did not abuse its discretion in determining that the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) did not apply in this case, as the record discloses ample evidentiary support for this determination, contrary to Mother's claim that there was no substantial evidence supporting the court's determination.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
KANE, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.