Opinion
D075909
10-18-2019
In re D.M. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.M. et al., Defendants and Appellants.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant, T.M. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant, D.W. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519498 A-B) APPEALS from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant, T.M. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant, D.W. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
T.M. (Mother) and D.W. (Father) appeal orders terminating their parental rights in the juvenile dependency cases of their minor sons, D.M. and E.M. Mother and Father contend the juvenile court erred by finding the beneficial parent-child relationship exception to termination of parental rights and adoption did not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) Finding no abuse of the court's discretion, we affirm the orders.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2017, the San Diego County Health and Human Services Agency (Agency) filed section 300 juvenile dependency petitions for D.M., then three years old, and E.M., then eight months old. The section 300, subdivision (a), petition for D.M. alleged that he had suffered serious physical harm non-accidentally inflicted by Mother. In particular, it alleged Mother had violently and aggressively shaken D.M. and punched him three times on the left side of his head with a closed fist, causing abrasions to his forehead and a laceration to his nose. The section 300, subdivision (j), petition for E.M. alleged that because D.M. had been abused, there was a substantial risk that E.M. would also be abused.
In its detention report, the Agency indicated that the striking incident concerning D.M. occurred in the elevator of the maternal grandmother's apartment complex and was recorded by a surveillance camera. When D.M. was asked what happened to him, he replied, "My mom." However, Mother told the Agency that D.M. sustained his injuries when he hit his head on a car door earlier that day. When asked about the incident in the elevator, Mother complained that D.M. was screaming he wanted to go to the park. She claimed she "blacked out", may not have taken her night-time medication, and might have "popped" D.M. on the head. Mother reported that she was admitted to a mental hospital in 2004 for cutting her wrists and in 2011 for suicidal ideations. She acknowledged taking medication for depression and anxiety.
The maternal great-grandmother informed the Agency that Mother had "a serious mental problem," as well as "an anger problem." She did not believe Mother was able to take care of the children at that time. Mother had moved back to San Diego in November 2016 after living in Wisconsin for four or five years because she had no means of financial support there.
A police report on the striking incident was attached to the detention report. Officers responded to a report of child abuse and viewed the surveillance video recording. The video formed the basis for the factual allegations in the dependency petition. Mother was arrested and transported to jail, and the children were taken into protective custody.
At the detention hearing, the juvenile court ordered D.M. and E.M. detained in out-of-home care and amended the petitions to include Father. Mother reported that Father was incarcerated in a Wisconsin prison at that time. The Agency subsequently confirmed that Father was incarcerated in Wisconsin and was not eligible for release until September 2018.
In its jurisdiction and disposition report, the Agency disclosed that Mother had prior arrests for battery in 2003 and February 2017. Mother informed the Agency that, as a result of the striking incident, she had been charged with felony child endangerment as to D.M. The maternal grandmother told the Agency that Mother had been diagnosed with schizophrenia and did not like to take her prescription medicine. She stated Mother was violent and hit D.M.
At the June 2017 jurisdiction and disposition hearing, the court sustained the petitions, declared the children dependents of the court, continued their removal from Mother's custody, and placed them in the care of a foster home. It also ordered reunification services for Mother.
In conjunction with its six-month review, the Agency reported that Mother was on probation until May 2021. She participated in reunification services, including a child abuse group, and had expressed remorse about the incident with D.M. But she had made only minimal progress in addressing the protective issue, and her mental health continued to be of concern.
Mother was unemployed, homeless, and temporarily living with the maternal great-grandmother. She was inconsistent in meeting with her psychiatrist. Her thought processes were tangential, and she became irritable during conversations with her social worker. Mother admitted to her therapist that she heard voices when she hit D.M. but stated she did not hear voices when she took her medication.
Mother's therapist did not believe that she was taking her medications. The therapist thought Mother had a schizoaffective disorder, explaining that she exhibited both auditory and visual hallucinations with rambling tangential and perseverating thinking and speech. At times Mother's thinking was somewhat paranoid, and she had difficulty staying focused. Her treating psychiatrist diagnosed Mother as having major depression with psychotic features.
Mother consistently visited the children. The children were strongly bonded with her and expressed excitement on seeing her. The caregiver reported that the children returned from visits with Mother in positive moods and appeared upset when visits ended because they did not want to leave her. However, persons supervising the visits reported that Mother was easily overwhelmed and had difficulty adapting to small changes in routine. As a result, the Agency had serious concerns about Mother's ability to properly care for the children in an unstructured setting. It recommended that the children remain in foster care, that Mother receive an additional six months of reunification services, and that she complete a psychological evaluation. The juvenile court agreed.
Mother had unsupervised visits with her children for about a month in the fall of 2017, but supervised visits were reinstated after the caregiver, her therapist, and a social worker expressed concerns regarding Mother's mental health. In particular, Mother had become more aggressive and did not make sense during phone calls. --------
As part of its 12-month review, the Agency advised that reunification services for Mother be terminated and a section 366.26 hearing be set to select and implement a permanent plan for the children. Father remained incarcerated in Wisconsin. The children were doing well in their foster home placement. Mother remained unemployed and on probation and continued to live temporarily with the maternal great-grandmother. She had made only minimal progress in addressing the protective issue. Her providers and family members expressed continued concern regarding her mental health and unstable moods. But Mother herself minimized her mental health issues and often blamed others for her behavior.
Although she maintained contact with the children, Mother was frequently late or missed visits. She became extremely frustrated with the children during visits, though she did not physically discipline them. On several occasions, Mother appeared overwhelmed and was ready to end the visits early.
Mother was unable to identify triggers for her aggressive behaviors. She believed her auditory hallucinations were caused by being around people she did not like. The maternal grandmother reported that Mother had been confrontational and appeared paranoid. She was concerned about Mother's unstable behavior. The maternal great-grandmother was also concerned because Mother talked irrationally and had outbursts.
Mother completed a psychological evaluation. She presented primarily with symptoms of psychosis, including disorganized speech, delusional thinking, and auditory hallucinations. She was diagnosed with a schizoaffective disorder. Without proper management of her symptoms, her diagnosis could render her incapable of caring for her children. The evaluator stated it was unlikely Mother would be able to meet her treatment goals within the following six-month period as comprehensive services had not yet been obtained and her symptoms were not currently managed.
Mother attended 27 out of 38 individual therapy sessions. She continued to display paranoid thoughts that caused her anger and fear. Mother's therapist opposed unsupervised visitation between Mother and the children. The therapist reported that she would be very concerned if the children were returned to Mother.
In an addendum report, the Agency stated that Mother ended two of her visits with the children early after becoming angry or frustrated. Mother's therapist reported she was not convinced Mother could be a reliable, competent parent. She remained concerned for the children if they were returned to Mother's care.
At the contested 12-month review hearing in August 2018, the juvenile court determined that returning the children to Mother's care would be detrimental to them. It found no substantial probability they would be returned to her custody if the review period were extended another six months. Accordingly, it terminated reunification services for Mother and Father and set a section 366.26 hearing to select and implement a permanent plan for the children.
One month later, Father was released from prison. An Agency social worker initiated home evaluations for three out-of-state relatives as possible permanent placements for the children. The Agency obtained a 120-day continuance of the section 366.26 hearing to allow it time to locate a permanent placement for the children.
In a section 366.26 addendum report, the Agency recommended terminating Mother's and Father's parental rights and selecting a permanent plan of adoption for the children. It asserted that the children's need for permanency outweighed any detriment they would suffer if Mother's parental rights were terminated. The Agency asked the court to authorize its placement of the children with an out-of-state relative who had an approved home study and was committed to adopting them. This relative—a maternal cousin—visited the children in San Diego and had two overnight visits with them. The cousin previously adopted another child and had a strong support network of family members and friends.
The Agency reported that Mother continued to have supervised visits with the children. They greeted her with enthusiasm, but no longer showed signs of distress when leaving her at the end of the visits. During some of the visits, Mother became erratic, irritated, and frustrated and yelled at the children. Despite the fact that the children looked forward to these visits, the Agency continued to be greatly concerned about Mother's mental health and her ability to safely supervise the children and regulate her emotions. Furthermore, the children did not look to Mother to meet their daily needs and she had not been involved in their daily care or medical or developmental needs for the past two years.
In March 2019, the children's court-appointed special advocate (CASA) agreed with the Agency's recommendation that parental rights be terminated and adoption be selected as the children's permanent plan.
In a May 2019 addendum report, the Agency stated that the children had been adapting to their placement with the out-of-state relative since their placement with her about a month before. It continued to recommend a termination of parental rights and adoption as the children's permanent plan.
At the contested section 366.26 hearing, the court received the Agency's reports, visitation reports, and other documents. Father appeared and testified telephonically. Mother personally appeared, but did not testify. In closing, the Agency's counsel argued that the evidence showed the children were adoptable and that no exceptions to adoption applied. In particular, counsel contended that the parents had not carried their burden to show that the beneficial parent-child relationship exception to adoption applied. Counsel for D.M. and E.M. joined in the Agency's closing arguments, agreeing that the beneficial relationship exception did not apply. She further asserted that the children were in need of permanency and it was in their best interests to terminate parental rights.
Mother's counsel argued that the children were not adoptable and, even if they were, the beneficial parent-child relationship exception to adoption should be applied. She asked the court to not terminate parental rights and instead order a less drastic permanent plan. Father's counsel joined in Mother's arguments and asked the court to consider a permanent plan of guardianship or long-term foster care for the children.
In separate orders for each, the juvenile court found by clear and convincing evidence that D.M. and E.M. were likely to be adopted. Although it believed both Mother and Father "have maintained good . . . contact and demonstrated their love for their children," it nevertheless concluded that none of the exceptions to termination of parental rights applied. The court determined that adoption was in the children's best interests, terminated the parental rights of both parents, and referred the children to the Agency for adoptive placement.
DISCUSSION
A. The Beneficial Parent-Child Relationship Exception: General Principles
The purpose of a section 366.26 hearing is to determine and implement the appropriate permanent plan for a dependent child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court can choose among three permanent plans: adoption, legal guardianship, and long-term foster care. (§ 366.26, subd. (b).) When a child is adoptable, adoption is the preferred permanent plan unless there are countervailing circumstances or adoption is not in the child's best interest. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
At a section 366.26 hearing, it is the parent's burden to show an exception to termination of parental rights. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One exception is when termination of those rights would be detrimental to the child because 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).) The court must find both (1) the existence of a beneficial relationship, and (2) that there is a relationship between the parent and child that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Alternatively stated, the beneficial parent-child relationship exception "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395.) In making the determination of whether the beneficial parent-child relationship exception applies, the juvenile 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." (Id. at p. 397.) Because interaction between a child and his or her parent will generally confer some incidental benefit to the child, the parent must prove the child will benefit to such a degree as to overcome the preference for adoption. (Ibid.) For the beneficial parent-child relationship exception to apply, the parent must show, inter alia, that the emotional attachment between the child and the parent is of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (In re Angel B. (2002) 97 Cal.App.4th 454, 467; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) Some of the factors the juvenile court should consider when determining whether the parent-child relationship is important and beneficial are: (1) the age of the child; (2) the portion of the child's life spent in the parent's custody; (3) the positive or negative effect of interaction between the parent and the child; and (4) the child's particular needs. (In re Angel B., supra, at p. 467.)
On appeal, we apply both substantial evidence and abuse of discretion standards in reviewing a juvenile court's determination that the beneficial parent-child relationship exception applies. (In re J.C. (2014) 226 Cal.App.4th 503, 530-531.) "We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B., supra, 239 Cal.App.4th at p. 395.) Under the abuse of discretion standard of review, 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. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) B. The Juvenile Court Properly Found That the Beneficial Parent-Child Relationship Exception Did Not Apply
Mother contends the juvenile court erred in finding that the beneficial parent-child relationship exception did not apply. Father joins in Mother's contention and argues that if she prevails, his parental rights should also be reinstated. As we explain, there was no error.
The court understandably highlighted positive interactions between the parents and their children. Mother clearly loves her sons, and they love her. The boys enthusiastically greeted her at the beginning of their visits and often did not want to leave her at the end. The court likewise commended Mother for her efforts in seeking to address the serious mental health issues she faces. Nonetheless, it properly focused on the second part of the beneficial relationship analysis—"whether or not the parent-child bond is such that it outweighs the benefits that would be afforded by adoption."
Mother cites evidence showing that: (1) she occupied a parental role in her children's lives; (2) the children had a strong bond with her; and (3) she consistently and regularly visited them. She contends they would benefit from her presence in their lives. Even accepting these contentions, the court did not abuse its discretion in finding the benefit to the children of that parental relationship did not outweigh the value of a permanent placement in a new, adoptive home.
"No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy 'a parental role' in the child's life.' " (In re K.P. (2012) 203 Cal.App.4th 614, 621.) While day-to-day contact is not necessarily required, courts evaluate whether the parent has the type of relationship that typically arises from day-to-day interaction, companionship, and shared experiences. (In re Casey D. (1999) 70 Cal.App.4th 38, 51; see In re S.B. (2008) 164 Cal.App.4th 289, 300 [exception applied where child saw her father two to three times per week and "derived comfort, affection, love, stimulation, and guidance from her continued relationship with [him]"].)
Despite the children's evident bond with Mother and eagerness for visits, the Agency was greatly concerned about Mother's mental health, emotional stability, and ability to safely supervise them. Mother's service providers and family members shared those concerns. And while Mother assumed a parental role in the course of her visits, during two years of dependency proceedings she was not involved in the children's day- to-day care or in making decisions regarding their medical or developmental issues. Significantly, the boys did not look to her as the parental figure responsible for meeting their daily needs. Based on these factors, the Agency recommended terminating the parental rights of Mother and Father and selecting a permanent plan of adoption. Not unreasonably, it believed the children's need for permanency outweighed any detriment they would suffer if Mother's parental rights were terminated. We cannot say the juvenile court abused its discretion in reaching a similar conclusion.
In arguing for a contrary result, Mother relies on In re E.T. (2018) 31 Cal.App.5th 68 (E.T.). In that case, two twins were removed from their mother's custody and placed with their godparents due to the mother's drug addiction and mental health issues. But after the mother participated in reunification services for one year, the children were returned to her with family maintenance services. (Id. at p. 71.) Over a year later she relapsed on methamphetamine, self-reported her relapse, and sought assistance from her social worker. (Id. at pp. 71, 78.) She voluntarily placed her children with their godparents on a temporary basis while she sought treatment. (Id. at pp. 71, 78.) But when she continued to use drugs, the agency filed a supplemental petition and the children were formally detained. (Id. at p. 71.)
The court sustained the petition and, despite the mother's recent enrollment in an outpatient drug treatment program, declined to order reunification services because she had previously been provided services and reunification was unsuccessful. (E.T, supra, 31 Cal.App.5th at p. 71.) At the section 366.26 hearing, the juvenile court found that the mother's relationship with the children was not substantial enough to outweigh the children's need for stability and concluded the beneficial parent-child relationship exception to termination of parental rights did not apply. (E.T., supra, at p. 75.) The mother's parental rights were terminated, and adoption was selected as the children's permanent plan. (Ibid.)
The Court of Appeal reversed, noting that this was "the rare case where the juvenile court erred in failing to recognize that Mother's relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption." (E.T., supra, 31 Cal.App.5th at p. 70.) In particular, it found that the juvenile court erred by applying the wrong standard for that determination (i.e., that the children's bond to the mother was not so strong that they could not be happy with their godparents). (Id. at p. 77) As the appellate court saw it, "There is no question that the [children] have a substantial and positive attachment to [the mother] such that terminating their familial relationship would cause them great harm." (Ibid.)
E.T. arises in the all-too-familiar context of addiction and relapse. Unlike E.T., this is not that "rare" case where we can say the juvenile court abused its discretion in finding that the benefits of permanency and stability outweighed a concededly positive relationship with a biological parent. Mother here did not voluntarily seek assistance from the Agency or diligently pursue treatment for the issue that led to the children's dependency proceedings. The mother in E.T. "understood that her recovery is a lifelong process she will need to work at every day." (E.T., supra, 31 Cal.App.5th at p. 74.) Even so, her consistent negative drug tests reflected sustained success. (Id. at p. 73.) In contrast, Mother has serious mental health issues that have yet to be treated or managed adequately so as to protect the children from the risk of harm or neglect if they were returned to her custody. Indeed, there is no assurance that Mother will ever be able to independently parent the boys. Finally, unlike the juvenile court in E.T., the juvenile court in this case applied the proper standard in determining the beneficial parent-child relationship exception did not apply.
DISPOSITION
The orders are affirmed.
DATO, J. WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.