Opinion
D071980
09-13-2017
In re T.D., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. N.D., Defendant and Appellant.
Megan E. Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Rae Molk, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ11117C) APPEAL from an order of the Superior Court of San Diego County, Michael J. Popkins, Judge. Affirmed. Megan E. Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Eliza Rae Molk, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
One-year-old T.D. was removed from her mother's care in April 2014 after having suffered burns resulting from her mother spilling hot oil on her. At the time of the incident, T.D.'s mother N.D. was under the influence of multiple controlled substances. Upon sustaining a petition filed on T.D.'s behalf, the juvenile court declared T.D. a dependent and placed her in foster care.
During the ensuing months, N.D. made progress in her case plan, and T.D. was placed in her mother's care in October 2015. Approximately three months later, however, the Agency filed a supplemental petition seeking to remove T.D. from N.D.'s care again as a result of N.D.'s having relapsed in her use of controlled substances. The court made a true finding on the supplemental petition, continued T.D. as a dependent, and eventually terminated N.D.'s reunification services. The court set a Welfare and Institutions Code section 366.26 hearing, and upon its conclusion, ordered the termination of N.D.'s parental rights and a permanent plan of adoption for T.D.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
N.D. appeals from the juvenile court's order terminating her parental rights to T.D. N.D. argues that the beneficial parental relationship exception applies in this case, and seeks reversal of the court's order terminating her rights.
Although N.D. identified a man she alleged was T.D.'s father, that individual did not participate in these proceedings or seek a determination of paternity.
We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background regarding the incident leading to T.D.'s removal from her home
On March 22, 2014, the San Diego County Health and Human Services Agency (Agency) received a referral that one-year-old T.D. had been sent to a burn center after having been treated for burns at a hospital. T.D.'s mother, N.D., had apparently been cooking and spilled hot oil on herself and on T.D., which caused extensive burns to T.D.'s arm, torso, and foot. N.D. contended that the incident was the result of an accident, and denied having been under the influence of controlled substances at the time of the incident. She also denied current drug use.
However, at the hospital, N.D. appeared to be under the influence of a controlled substance. N.D. underwent a toxicology drug screening and tested positive for THC, cocaine, and methamphetamine. In addition, she was in possession of marijuana. Upon being informed of the results of the toxicology screening, N.D. asserted that the hospital had made up the results. A few days later, however, N.D. admitted to an Agency social worker that she had used some of her son's marijuana prior to the incident. She also admitted that she had "tasted" a small piece of methamphetamine after finding it in her son's belongings. N.D. continued to deny any cocaine use. At that point in time, the social worker asked N.D. to take a drug test later that evening or the following morning, and N.D. agreed to do so. N.D. then left the hospital, indicating that she would return later that day.
The following day, the social worker called N.D. regarding the drug test. N.D. did not answer the social worker's call. The social worker also called the hospital multiple times to attempt to determine whether N.D. was there. The social worker learned that N.D. had not returned to the hospital. The day after placing these calls, the social worker made an unannounced visit to N.D.'s home, but she was not there. Between March 25 and March 27, the social worker called N.D. multiple times and left multiple messages. N.D. did not respond.
N.D. did return to the hospital in the late evening on March 26, but she left again at around midnight. Nurses at the hospital expressed concern about N.D.'s behavior. They noted that N.D. did not appear to be concerned about T.D., and that she walked out of the room when T.D. cried out for her. Nursing staff indicated that they would not permit N.D. to take T.D. from the hospital, given their concerns. B. Early proceedings and N.D.'s progress
At the detention hearing on April 3, 2014, the court appointed counsel for N.D. and T.D. The court made a finding that out-of-home detention was necessary because there was a substantial danger to T.D.'s health, and there were no reasonable means to protect her without removing her from N.D.'s custody. The court ordered that T.D. be released from the hospital to Polinsky Children's Center or to a licensed foster home.
The detention report also detailed N.D.'s prior history with Child Welfare Services. There had been 35 prior Child Welfare Services referrals made with respect to N.D., and she had failed to reunify with two older children.
The jurisdiction and disposition report indicated that T.D. was eventually placed in a foster home on April 9, 2014. T.D. appeared to be happy in the home. N.D. had started services, including classes through the Vista Hill ParentCare Central treatment program, and was scheduled to attend the program five days per week. N.D. was tested for drugs on April 16, and tested negative for all substances.
On April 18, 2014, N.D. had a supervised visit with T.D. for an hour. N.D. and T.D. interacted positively during the visit. Four days later, T.D. was moved to a new foster home.
The jurisdiction and disposition hearing was held on April 24, 2014. The Agency recommended that the court make a true finding on the petition and continue T.D.'s out-of-home care. The Agency also recommended that N.D. receive reunification services and continue supervised visitation with T.D. The juvenile court accepted the Agency's recommendations and made a true finding on the petition. The court continued the disposition determination at the request of N.D.'s attorney, so that a friend of N.D.'s could be evaluated as a potential placement for T.D.
The Agency ultimately opposed placing T.D. with this individual, given concerns about his substance use, as well as potential inappropriate boundaries with N.D. and his belief that no protective issue existed.
The Agency filed an addendum report on May 28, 2014. The report noted that N.D. had enrolled in Dependency Drug Court and had begun participating in that program on May 20. In addition, N.D. tested negative for all substances on May 6, and had been scheduled to begin therapy on May 21.
During this time period, N.D. travelled and missed her ParentCare program for a two-week period. Although she had to cancel two visits with T.D. as a result of this travel, she resumed supervised visits on May 9, 16, and 19. During those visits, N.D. was responsive to T.D.
A dispositional hearing was held on May 28, 2014, and N.D. requested a trial on the matter of her having unsupervised visits with T.D.
The next report filed by the Agency indicated that T.D. was doing well at her placement in a foster home. The foster parents reported no issues, and it appeared that N.D. and the foster parents had a good relationship. However, N.D. had expressed frustration with the Agency, and she indicated that she was concerned that she might lose her housing because T.D.'s detention had resulted in N.D. losing government aid.
Between May 30 and June 13, N.D. engaged in weekly supervised visits with T.D. at the Agency's office. N.D. often ended these visits approximately 30 to 45 minutes early. As of June 16, the supervised visitation location was moved to the Family Visitation Center, which reported that N.D. interacted positively with T.D. during visits. In the meantime, N.D. continued to participate in services. She attended the ParentCare program five days a week, and tested negative for all substances on June 3 and 16. N.D. participated in drug court, and had attended three individual therapy sessions. C. The reunification period
The Agency's six-month review report indicated that T.D. was thriving in her placement in the foster home. T.D.'s foster parents were taking care of T.D.'s medical and dental needs, and ensured that T.D.'s burns were being addressed appropriately. They also ensured that T.D. engaged in occupational therapy and massages in their home. The foster parents indicated a willingness to adopt T.D. if reunification was not possible.
The Agency's report noted that N.D. continued to progress with the services provided to her. N.D. completed a 20-week parenting class through ParentCare, and was showing insight into her parenting issues. N.D. also continued to participate in drug treatment and drug court. She tested negative for any controlled substances multiple times. She also was progressing in her therapy, and her therapist reported that she was actively engaged in the therapy. N.D. remained unemployed, however.
According to the Agency, N.D.'s visitation with T.D. was positive during this time period. N.D. read to T.D., and worked with her on learning letters, animals, and parts of the body. One of T.D.'s caregivers noted that T.D. and N.D. shared a positive bond, and that T.D. became excited when she saw her mother.
Because of the progress that N.D. was making, beginning on September 17, 2014, N.D. was permitted unsupervised visits with T.D., three times a week for two hours each visit. On October 7, 2014, the unsupervised visits were extended to four hours per visit, and at the end of November 2014, they were again extended to six hours per visit.
The juvenile court held a six-month review hearing on December 16, 2014. At that time, the Agency recommended that N.D. receive an additional six months of services. The court found that N.D. had made substantive progress with the provisions of her case plan, and ordered that she receive an additional six months of services.
The Agency filed a 12-month review report on May 22, 2015. In that report, the social worker noted that as of April 8, 2015, N.D. had been approved to begin a 60-day trial visit with T.D. However, the 60-day trial visit ultimately did not begin because N.D. tested positive for drugs after the social worker requested that she complete a random drug test on April 14, 2015. N.D. admitted to the social worker that she had had a recent relapse with methamphetamine. N.D. immediately enrolled in a substance abuse program, began attending Narcotics Anonymous/Alcoholics Anonymous meetings twice a day, and developed a "relapse prevention plan."
In addition, N.D. continued seeing her therapist once per week. The therapist reported that N.D. was engaged in the therapy. N.D. also participated in another program in which she attended classes in parenting and "self-enhancement skills," and had access to a computer lab to assist her in searching for employment. She also attended school in the hope that she could obtain a high school diploma.
Meanwhile, T.D. was reported as being a "very happy and healthy little girl." T.D. was the oldest of four foster children in the home. T.D.'s court-appointed special advocate reported that the home was "full of laughter and energy," and that T.D. had a "loving and comfortable relationship with her foster parents who provide her with structure and emotional support." She was attending an "Early Head Start Program" two times per week and was learning and developing appropriately. N.D. asked T.D.'s foster parents to be T.D.'s godparents, and they were formally named as such in January 2015.
N.D. continued to visit T.D. consistently during this period. Although N.D. had been granted weekly overnight visits with T.D. from Friday through Tuesday prior to her drug relapse, after the relapse, those visits were reduced to overnight, Friday to Sunday. The social worker reported that T.D. would cry when she had to leave N.D. to return to her foster care placement.
With respect to the 12-month review hearing, the Agency recommended that N.D. receive an additional six months of services. The court followed that recommendation and set an 18-month review hearing.
Prior to the 18-month review hearing, the Agency submitted an 18-month review report and a report filed by T.D.'s Court Appointed Special Advocate. The report noted that N.D. had again relapsed on July 15, 2015, testing positive for methamphetamines. At that point in time, N.D.'s visitation with T.D. reverted back to supervised visitation. In addition, the relationship between T.D.'s foster parents and N.D. became increasingly strained.
N.D. enrolled in an in-patient drug treatment program as of August 14, 2015.
In late August, T.D.'s foster parents filed a de facto parent request with the court. The trial court granted the request.
The Agency agreed to allow T.D. to begin a 60-day trial visit with N.D. at the location of her in-patient program. The 60-day trial visit began on September 14, 2015. T.D. seemed to handle the transition well.
At the 18-month review hearing, which was held on October 6, 2015, the Agency recommended that T.D. be placed with N.D., and that N.D. receive family maintenance services. The juvenile court followed these recommendations, and also dissolved the foster parents' status as de facto parents. D. The supplemental petition and subsequent hearings
On January 15, 2016, the Agency filed a petition, pursuant to section 387, to modify the court's previous order placing T.D. with N.D. The Agency sought to place T.D. with a foster caretaker. In the petition, the Agency alleged that N.D. was no longer able or willing to provide adequate care or supervision for T.D. because she had resumed using methamphetamine. According to the Agency, N.D. had tested positive for methamphetamine on December 15, 2015, and admitted that she continued to use the drug.
According to the Agency's detention report, N.D. had completed her in-patient drug treatment program on November 14, 2015. Upon completion, N.D. continued to participate in out-patient treatment, Narcotics Anonymous meetings, and meetings with her sponsor. However, despite this, on December 15, 2015, N.D. tested positive for methamphetamine. N.D. was scheduled to participate in another drug test on January 12, 2016. However, she failed to show up for that drug test. A social worker provided N.D. with transportation to a drug test the following day; on the way to the site of the drug test, N.D. admitted to the social worker that she would test positive for methamphetamines. According to N.D., she relapsed as a result of a recent break-up and communication from a family member that brought back memories of a childhood trauma. N.D. stated that she ensured that T.D. stayed with a neighbor when N.D. was using drugs.
At the detention hearing, the trial court found that out-of-home detention was necessary because there were no reasonable means of protecting T.D. without removing her from N.D.'s custody. N.D. was granted supervised visitation outside of the in-patient treatment facility, and unsupervised visitation at the facility.
The Agency's jurisdiction and disposition addendum report on the supplemental petition indicated that after the detention hearing, N.D. acknowledged being unsure about her ability to remain sober. N.D. indicated a desire to have T.D. placed with a maternal cousin in Bakersfield, California. N.D. had agreed to focus on her treatment plan at the treatment facility and to participate in a minimum of two Narcotics Anonymous meetings per week. However, staff members at the treatment facility informed the social worker that although N.D. had been admitted to the program on January 15, 2106, she had tested positive for methamphetamines on January 20. On January 24, N.D. discharged herself from the program.
On January 27, N.D. attended an intake appointment at the "Family Resource Center" (FRC). Staff at the FRC had reported to the social worker that N.D. might not be able to gain immediate admission to the program. On February 2, N.D. was asked to take another drug test, but she declined to go to take the test. FRC staff held an opening for N.D. if she was present at the facility by 2 p.m. on February 4, but N.D. informed the social worker that she did not intend to go to the FRC. N.D. did take a drug test on February 2, and the results were negative for controlled substances. The social worker was attempting to get N.D. enrolled in the ParentCare program again, but it was not clear that staff would permit N.D. to re-enroll after having been in the program three times.
The Agency notes that the center is erroneously referred to as the "Family Resource Center" in the report, but that the correct name of the facility is the "Family Recovery Center."
N.D. had a supervised visit with T.D. on February 8, 2016. The social worker had wanted N.D. to complete a drug test at the conclusion of the visit, but the visit ran late, so the social worker informed N.D. that she would have to test the following day. N.D. informed the social worker that she would not participate in drug testing for the Agency any longer. That same day, ParentCare informed the social worker that staff there wanted to "see how serious mother was before they would admit her again."
On February 9, T.D. was placed with a maternal cousin in Bakersfield. Nine days later, N.D. entered residential treatment at the FRC. Given that N.D. was in residential treatment that would limit her ability to visit T.D. in Bakersfield, a plan was implemented that would allow N.D. to have daily telephone and video calls with T.D. for an hour. In addition, T.D.'s caregiver agreed to transport her to visit N.D. at the FRC on March 26.
Although the social worker did not receive the results until later, N.D. tested positive for methamphetamines on the day that she began treatment at the FRC.
In another report, the Agency noted that N.D. continued to reside at the FRC. She was not in compliance with her individual therapy treatment plan, however, because she had missed a number of appointments. In fact, the therapist stated that if N.D. missed another appointment, he would discharge her. The therapist also reported to the social worker that N.D. had "demonstrated a pattern of self destructive behaviors and is not putting her child's needs ahead of her own."
The Agency also reported that N.D. had been failing to complete other services, as well. She failed to meet program goals with respect to the Intensive Family Preservation Program, and also failed to obtain a certificate of completion for her "Cultural Brokers" parenting class, due to her sporadic attendance and failure to complete homework assignments.
The social worker noted that it was difficult to schedule visitation between T.D. and N.D. during this time period, given N.D.'s treatment hours and T.D.'s caregiver's work schedule. N.D. was unable to have video chats with T.D. because her cell phone did not have video chat capabilities. T.D.'s caregiver agreed to bring T.D. to San Diego to visit N.D. one time per month.
The Agency recommended that N.D.'s services be terminated. Although it appeared clear to the social worker that N.D. loved T.D., it was also evident that N.D. had been unable to demonstrate insight into how her addiction was affecting T.D., and she repeatedly blamed the Agency and failed to take responsibility for her actions, making it difficult to conclude that she would be able to protect T.D. in the future.
An addendum report filed June 1, 2016 indicated that T.D.'s caregiver had reported that she was no longer willing to keep T.D. in her home. After a visit with N.D., T.D. had returned to the home exhibiting problematic behaviors that her caretaker had thought had been "stabilized" before the visit. According to the caregiver, she believed that N.D. was "trying to sabotage [T.D.'s] placement by telling [T.D.] she did not have to listen to [the caregiver]." The caregiver did not believe that she could continue to deal with N.D., and as a result, she could not continue to care for T.D.
At the contested jurisdiction and disposition hearing held on June 9, 2016, the court made a true finding on the section 387 petition, and found that returning T.D. to her mother's custody would be detrimental to her. The court further found that the services that had been provided to N.D. had been reasonable, and that N.D. had not made substantive progress toward alleviating the protective issues. The court therefore terminated reunification services and set the matter for a section 366.26 hearing.
Approximately three months later, the Agency filed another section 387 petition to address the issue of the caregiver's desire not to have T.D. placed with her any longer. The petition indicated that there were no other relatives who were approved to care for T.D., and the Agency therefore asked the court to place T.D. in a foster home. T.D.'s initial foster parents were interested in having T.D. placed with them again, and indicated a willingness to supervise N.D.'s visits with T.D.
The court held a detention hearing on September 7, 2016, removed T.D. from her caregiver in Bakersfield, and placed her in a licensed foster home. E. The Agency's section 366 .26 assessment
The Agency filed a section 366.26 report on September 22, 2016. The report noted that T.D. had again been placed with the foster parents with whom she had been placed initially, as of September 9. T.D. had adjusted well to their home and appeared to be "comfortable and happy."
During this period, the social worker had observed two visits between T.D. and N.D. On August 19, 2016, N.D. played with T.D., read books to her, and hugged and kissed her repeatedly. She also took T.D. to the bathroom and gave her a snack. Throughout the visit, T.D. called N.D. "mommy." T.D. also referred to her caregiver as "mommy." T.D. cried at the end of the visit and did not want to leave. However, she was able to gather herself, stop crying, and held her caregiver's hand once she got to the caregiver's car. On September 9, 2016, N.D. brought T.D. food, clothes and toys. Throughout the visit, N.D. hugged and kissed T.D. The pair ate and played together. Although T.D. had called out " 'Mommy!' " upon first seeing N.D., when it was time for lunch, T.D. said, " 'Actually I want to eat my lunch with my other mom.' " At various times, T.D. said that she had three different mothers. At the conclusion of this visit, T.D. again began to cry. N.D. raised her voice at the social worker and said, " 'Who do you think you are to come and take a mother's baby away from her?' " The social worker reminded N.D. that she was not to discuss the case in front of T.D.
In the report, the Agency identified T.D.'s foster parents as prospective adoptive parents. T.D. had initially been placed in their care for 17 months and was returned to their care after being placed with N.D. and with a maternal cousin. The foster parents had a strong relationship with T.D., and they were able to provide her with a safe and loving home, and also could provide her with permanency.
The section 366.26 hearing was scheduled to take place on October 6, 2016. However, the Agency requested a 90-day continuance to further assess the permanent plan, as well as the parent-child relationship. The court granted the Agency's request.
An addendum report detailed an additional visit between N.D. and T.D. At the September 21, 2016 visit, N.D. brought a cake to celebrate T.D.'s birthday. N.D. and T.D. engaged with each other, and N.D. was again affectionate with T.D. T.D. referred to N.D. as "mommy." At the conclusion of the visit, T.D. cried and indicated that she wanted to leave with N.D. However, after leaving the visit, T.D. stopped crying and did not cry the rest of the day. The addendum report also detailed 14 supervised telephone calls that took place between T.D. and N.D. during the month of September 2016. The calls were brief, typically under five minutes, and N.D. was usually appropriate during them. However, during one call, N.D. told T.D. that she was house hunting and setting up a bedroom for T.D. T.D.'s caregiver was concerned about N.D. bringing up this topic and was worried that the comment had confused T.D.
A second addendum report, filed December 14, 2016, indicated that T.D. had resumed therapy, and continued to do well in her foster home. She referred to her foster parents as "mom and dad." T.D. was attending a Head Start program again, and was doing well, enjoying it, and making new friends.
T.D.'s foster mother reported to the social worker certain concerns about N.D.'s behavior. For example, N.D. had begun calling T.D. at various times of the day, rather than in the evenings, as previously agreed. The caregiver had addressed this concern with N.D., noting that she wanted T.D. to have consistency and to be prepared for N.D.'s calls. N.D. became upset with the caregiver.
In addition, the social worker reported having issues with N.D. For example, on October 26, the social worker tried to get in touch with N.D. The social worker needed N.D.'s consent for T.D. to receive medical, developmental, and therapeutic services. The social worker texted N.D. requesting that she sign the consent form, stating, "consent is needed." N.D.'s response to the social worker was " 'So is more time with my baby without your presence.' " N.D. called the social worker the following day about the consent form. She told the social worker, " 'I am not going to deal with your guys' bullshit. I am not releasing my daughter to any doctor appointments without me there.' " When the social worker told N.D. that she had already explained that N.D. had the right to be present at the appointments, N.D. responded, " 'This case is closed. This is shit. You're going to give me my daughter back so I can have her with me.' " Although the social worker attempted to discuss N.D.'s concerns, N.D. hung up on the social worker. Later, N.D. texted the social worker, "And [I] have no need for any of your services so keep violating my rights I need the documentation.' "
On November 1, 2016, after some back and forth trying to contact one another, the social worker called N.D. twice. N.D. answered the phone on the second call, said, " 'I don't need your help anymore' " and hung up.
That same day, T.D.'s foster mother reported that N.D. was again disrespecting the boundaries that T.D.'s foster parents had set regarding telephone contact. N.D. had agreed to call each night only, but she was instead calling at random times. The foster mother also reported that N.D. continued to refuse to sign the consent for treatment form. Despite the foster mother's attempts to get N.D. to sign the form, N.D. instead wrote at the top of the form, " '[M]other is very capable of taking my own daughter to the doctor, thank you.' "
Between September 30 and December 6, 2016, T.D. and N.D. had 14 visits. Many of the visits went well, with no major problems. Generally, N.D. engaged in appropriate behaviors and played and engaged with T.D. At the end of some of the visits, T.D. cried, but she also appeared calm and not in distress at others. For example, N.D. had a visit with T.D. on November 1. N.D. was late for the visit. Although N.D. brought age-appropriate toys for T.D. and played with her, at one point N.D. started to video record T.D. The monitor had to remind N.D. that video recording was not permitted. The monitor also reported that N.D. took personal telephone calls during the visit.
N.D. had a successful visit with T.D. on November 4, but cancelled the following visit that was set for November 8, and missed the next visit after that on November 11 because she failed to confirm the visit beforehand.
N.D. was late to the next visit on November 15. N.D. and T.D. played, and N.D. helped T.D. make a Christmas list. N.D. was again late to a visit on November 18. At that visit, N.D. was observed whispering in T.D.'s ear. T.D.'s caregiver told N.D. that she had to be able to hear what N.D. was saying to T.D. N.D. had another visit with T.D. on November 22. Although N.D. engaged in age appropriate activities with T.D., the social worker reported that N.D. needed help keeping the visit positive. N.D. had apparently been discussing things that made T.D. uncomfortable. At a visit on November 29, N.D. behaved appropriately and helped T.D. count and draw.
On November 30, the social worker discussed an issue with T.D.'s foster mother that had arisen on November 23. The foster mother had scheduled a dental procedure for T.D. to be performed on that date, and had informed N.D. about the procedure. However, T.D.'s foster mother had also told N.D. that only one person could be in the procedure room with T.D., and the caregiver intended to be that person, given that N.D. was not allowed to have unsupervised contact with T.D. Part way through T.D.'s procedure, N.D. arrived at the dentist's office and asked to be allowed to be present in the procedure room. The caregiver left the procedure room to speak with N.D., who yelled, " 'I still have my parental rights, you['re] just the foster mother and I want to be with my baby.' " T.D.'s caregiver tried to calm N.D. down, and asked to discuss any issues outside of T.D's presence. An office assistant put an additional stool in the room to allow N.D. to be present during the procedure.!CT 547)!
N.D. had another visit with T.D. on December 1. N.D. behaved appropriately and engaged in age appropriate activities with T.D.
On December 5, N.D. attended a dinner with T.D.'s foster family. During that dinner, the caregiver had to remind N.D. not to whisper to T.D. The caregiver also reported that at the end of the visit, N.D. told T.D. that she had turned in paperwork " 'to get my home.' " The caregiver was concerned that commentary like this might lead T.D. to believe that there was a "possibility of coming home."
In the assessment portion of the social worker's report, the social worker concluded that maintaining N.D.'s parent-child relationship with T.D. would not outweigh the benefits of adoption to T.D. The social worker noted that N.D. continued to fail to cooperate with the Agency, and continued to blame the Agency for T.D.'s removal, without taking any responsibility. The social worked also explained that T.D. was at a critical stage of development, she had already had multiple placements, and she had spent the majority of her life out of N.D.'s care. Despite all of this, T.D. continued to progress in her development, and her caregivers were committed to providing her with a loving and nurturing environment. T.D. was thriving in the care of her foster parents, and already appeared to be part of their family.
In an addendum report, the Agency detailed additional visits that had occurred between N.D. and T.D. On December 13, 2016, N.D. engaged in age appropriate activities with T.D. However, at the end of the visit, N.D. began to cry, which resulted in T.D. trying to soothe her and telling her not to cry. The addendum also referred to communications between N.D. and the social worker. For example, on December 17, N.D. texted the social worker with the following message: " 'I've been calling and I want it very clear that I have never agreed to my daughter being removed nor her being adopted so pick another child to sell for your bonuses from the government or you'll be very sorry.' " A few days later, after the social worker had informed N.D. that an incident that had occurred at T.D.'s foster home was not an issue and that T.D. was doing well, N.D. texted the social worker, " 'The state will be investigating your actions fyi I have been granted a state review on this case filing harassment and if it were up to me you'd be in jail for child stealing and human trafficking.' "
Before the section 366.26 hearing, T.D.'s foster parents filed another de facto parent request.
On the date the section 366.26 hearing was set to occur, the Agency again recommended terminating N.D.'s parental rights and ordering a permanent plan of adoption for T.D. N.D. set the matter for trial, which meant that the hearing would be delayed. The court indicated that it would address the de facto parent request at a pretrial settlement conference.
In the meantime, given that N.D. had never signed a new consent to treatment form, the Agency requested a hearing to seek court authorization for medical, dental and therapeutic treatments for T.D. Although N.D. objected to the Agency's request, the court approved the form.
Also during this time, the Agency asked the juvenile court to order N.D. to remove an Internet post that contained confidential information about T.D.'s case. N.D. had created a fundraising page online, and had asked for donations to help her in the matter. The posting included identifying information about T.D., and also had a photograph of her. At a pretrial conference, the court ordered N.D. to remove all confidential information regarding the case and T.D. from the posting.
The Agency continued to be subjected to N.D.'s hostility, as well, during this time frame. N.D. sent the social worker a threatening message on January 6, 2017. A few days later, the social worker texted N.D. to ask her to stop sending inappropriate text messages. Ten days after that, a supervisor called N.D. to discuss expectations and boundaries for communications between N.D. and the social worker. N.D. denied having sent any threatening messages, but also indicated that she had the right to have T.D. placed with her, and made a derogatory comment toward the supervisor, even raising her voice.
T.D.'s foster mother reported further concerns about N.D.'s interactions with T.D. During a telephone call with T.D. on January 30, 2017, N.D. had apparently told T.D. that she was in the process of " 'packing to go to our new home.' " The foster mother had explained to N.D. that statements like that, and similar prior statements, had caused T.D. to become anxious, act out, and sleep poorly. The social worker indicated that she did not believe such comments were appropriate because they confused T.D. The following day, January 31, N.D. introduced T.D. to her alleged father. After meeting this man, T.D. informed her foster mother that the man was her " 'new real daddy.' " T.D.'s foster mother indicated to the social worker that T.D. had started having nightmares after meeting the man who N.D. had introduced as T.D.'s father, and she had also begun making concerning statements, like " ' I don't want the social worker to take me away on an airplane.' "
Over this period of time, N.D. also had become hostile to T.D.'s foster mother, questioning her about the de facto parent request and stating, " ' I'm not letting you adopt [T.D.] I have been through this before.' "
The visitations that occurred between T.D. and N.D. between January 3 and February 7, 2017, were generally without issue, however. N.D. behaved appropriately, engaged in age appropriate activities and discussions with T.D., and showed T.D. affection.
Prior to the section 366.26 hearing, the trial court granted the foster parents' pending de facto parent request. F. The contested section 366 .26 hearing
The court ultimately held the section 366.26 hearing on March 23, 2017. The court received in evidence the Agency's reports, as well as the curriculum vitae of the section 366.26 assessment social worker. In addition, N.D. testified at the hearing. N.D. repeated that the initial incident that had resulted in T.D. being removed from her care had been an accident, and she noted that she had obtained medical care for T.D. afterward. N.D. also indicated that she had sought more visitation time with T.D., and that the case felt to her like a form of harassment.
After considering the evidence and arguments made by counsel, the trial court determined that T.D. was likely to be adopted and that none of the statutory exceptions applied. The court explained its finding that it would be in T.D.'s best interest to be adopted, stating:
"I'm basing that [conclusion] on the following facts: That this child has been taken from the mother for now three years. She's four-and-a-half years old. She was only with the mother when she was up to one-and-a-half, with a few minor exceptions; that the mother was given an opportunity to reunify with the child, and due to her long drug-addiction history, that did not happen. The child, as a result of that, has been moved from placement to placement, and she was also given an opportunity to be with a relative, and that did not work out. [¶] So the bottom line here -- and I will quote from the In re[ ] Autumn H. case -- 'that the benefits from continuing the parent-child relationship exception to mean the relationship 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.' [¶] I do not feel that there is any benefit from the parent-child relationship that would even come close to outweighing for this child what a permanent home would do for her, given her chaotic life that she has experienced since a very early age in her life."
The court also stated, "I do not find that there has been a parent-child relationship in this case based on the visits alone. I see it more as a friend-type relationship." The court then terminated N.D.'s parental rights and referred T.D. to the Agency for an adoptive placement.
N.D. filed a timely notice of appeal.
III.
DISCUSSION
N.D. contends that the trial court erred in finding that the beneficial relationship exception to adoption did not apply in this case (see § 366.26, subd. (c)(1)(A)). She asserts that her mother-daughter relationship with T.D. should be preserved. A. Legal standards
If a dependent child is adoptable, the court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception to adoption. (Id., subd. (c)(1).) An exception exists if "[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).) "A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence." (In re J.C. (2014) 226 Cal.App.4th 503, 529.)
With respect to the visitation prong, "[r]egular visitation exists where the parents visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) The lack of regular visitation "fatally undermine[s] any attempt to find the beneficial parental relationship exception." (Ibid.)
With respect to the benefit from continuing the parent/child relationship prong, this court has interpreted this "to mean the relationship 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 other words, 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.)
"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. (2015) 239 Cal.App.4th 389, 395.) B. Analysis
Although the trial court did not make any specific finding with respect to the first prong of the beneficial relationship exception, the trial court concluded that N.D. failed to establish the second prong of the exception—i.e., that she has a parent-child relationship with T.D. that is so beneficial that terminating her parental rights would be detrimental to T.D. (§ 366.26, subd. (c)(1)(B)(i).) Specifically, the court determined that N.D. did not occupy a parental role in T.D.'s life, but instead, that the relationship between the two was more of a "friend-type relationship." The court further concluded that it could not make a finding that the relationship between N.D. and T.D. was such that the benefits of maintaining that relationship would outweigh the benefits to T.D. from having a permanent adoptive placement. We see no error in the court's analysis in this case.
In the trial court, the Agency did not dispute that N.D. maintained regular visitation and contact with T.D., and the Agency has not altered its position on appeal.
First, with respect to the existence of a parent-child relationship, we conclude that there is substantial evidence to support the trial court's finding that N.D. did not occupy a beneficial parental role in T.D.'s life. (See In re Anthony B., supra, 239 Cal.App.4th at p. 395 [applying substantial evidence review to trial court's determination as to whether beneficial parent-child relationship exists].) Specifically, the record demonstrates that N.D. fulfilled a parental role, at best, inconsistently.
N.D. did not behave in a manner that one would expect from a parent during the reunification period. Rather than conduct herself in a manner that would demonstrate that she placed T.D.'s needs and interests before her own, N.D. behaved inappropriately and selfishly in her interactions with T.D.'s caregivers and Agency social workers. For example, N.D. was at times openly hostile toward social workers and caregivers. She refused to sign a consent to treatment form that would have allowed T.D. to attend medical, dental and therapy appointments without approval from the court. At another point, N.D. introduced T.D. to a man who N.D. believed was T.D.'s father and told T.D. that he was her father. T.D. later told her caregiver that the man was her " 'new real daddy.' " After meeting this man, T.D. had nightmares, seemed confused about the matter, and exhibited behaviors that were out of character for her. T.D. also began saying things like, " 'I don't want the social worker to take me away on an airplane.' " These incidents demonstrate that N.D.'s conduct was, at times, not that of a parent who placed her child's interests first.
We acknowledge that the record demonstrates that N.D. was capable of behaving in a parental manner during her visits with T.D. N.D. played with T.D., showed T.D. affection, engaged in age-appropriate activities and conversation, and gave T.D. direction. However, she also intermittently behaved inappropriately during these visits. On at least one occasion, N.D. raised her voice at a social worker in front of T.D. It was noted that on other occasions, N.D. sometimes discussed matters that were inappropriate and that made T.D. uncomfortable.
There is also no question that N.D. did not meet T.D.'s day-to-day needs and did not fulfill a parental role in her life. Rather, T.D.'s caregivers met her day-to-day needs. In fact, N.D.'s visitation was monitored throughout a good portion of these proceedings. It has been recognized under circumstances such as these, that even "frequent and loving contact [is] insufficient to show the requisite beneficial parental relationship." (In re Bailey J. (2010) 189 CalApp.4th 1308, 1316 [the mother's supervised weekly eight-hour visits insufficient to show she occupied a parental role in the child's life]; accord, In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109 [parents' failure to progress beyond monitored visitation with a child and to fulfill a "meaningful and significant parental role" supported order terminating parental rights]; In re Casey D. (1999) 70 Cal.App.4th 38, 51 [while day-to-day contact between the parent and child is not required, it is difficult to demonstrate a beneficial relationship when the parent's visits remain supervised].)
Further, even if we were to assume for purposes of argument that N.D. did have a beneficial parent-child relationship with T.D., we would nevertheless conclude that the trial court did not abuse its discretion in concluding that any detriment that T.D. might suffer as a result of terminating N.D.'s parental rights would be outweighed by the significant benefit that she would receive from being in a permanent adoptive home. (See In re Anthony B., supra, 239 Cal.App.4th at p. 395 [applying abuse of discretion standard to determination whether there exists a compelling reason for finding that termination would be detrimental to the child].)
Again, the question to be answered by a trial court in considering the beneficial relationship exception is whether the "relationship 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." (Autumn H., supra, 27 Cal.App.4th 567, 575.) T.D. was removed from her mother's care at a very young age. She spent more than half of her life in the care of others.
T.D. has been placed in multiple different homes, and some of the disruption in her placements was the direct result of N.D.'s behavior. For example, N.D. had managed to have T.D. returned to her care, but when N.D. relapsed, T.D. again had to be removed and placed with new caregivers. In another instance, a caregiver asked to be removed as T.D.'s caregiver as a direct result of N.D.'s conduct with respect to that caregiver, who believed that N.D. was attempting to "sabotage" the placement. --------
There is a strong preference in this state for selecting a permanent plan of adoption over nonpermanent forms of placement (see San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888), and T.D.'s current caregivers have indicated a desire to adopt her. They filed a de facto parent request during the 18-month review period in this case, which the court granted. Even though T.D. was removed from their care as a result of T.D. being placed with N.D., T.D.'s current caregivers expressed a desire to have T.D. returned to them when another placement fell through. Upon T.D.'s return to their care, her current caregivers again expressed a desire to adopt her, and they filed a subsequent de facto parent request, which the court also granted. Beyond the desire of T.D.'s foster parents to adopt her, the record is replete with instances demonstrating T.D.'s bond with her caregivers and the fact that she views them as her parental figures. Indeed, T.D. often referred to her foster mother "mommy," even when speaking to N.D., and called her foster parents "mom and dad." Moreover, the record demonstrates that T.D. is thriving in her foster parents' care. She is meeting developmental milestones with no delays, and appears to be a generally happy, healthy, and active child.
We conclude that the trial court did not abuse its discretion in determining that the benefits to T.D. of being adopted, and having a permanent, loving home outweigh any detriment that she might suffer as a result of terminating her parent-child relationship with N.D., to the extent it exists.
IV.
DISPOSITION
The order of the trial court is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. DATO, J.