Opinion
F080564
06-01-2020
In re L.S., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. JVDP-18-000055)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.
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K.S. (mother), appeals from an order terminating her parental rights to her daughter L.S. pursuant to Welfare and Institutions Code section 366.26. Mother's sole contention on appeal is that the beneficial parent-child relationship exception to termination applied and the juvenile court erred in terminating her parental rights. We disagree and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
Referral
Shortly after L.S.'s birth in May of 2018, the Stanislaus County Community Services Agency (agency) received a referral that mother had previously failed reunification services and had her parental rights terminated as to another child in 2017. That case began in 2015 and was based on mother's mental health issues, domestic violence, and unstable housing. Mother named Brian K. as L.S.'s father, stating he lived in Idaho and did not want to be involved in the child's life.
Mother's current boyfriend, Jonathan M., wanted to help care for L.S., but he had a history of mental illness, substance abuse, and was on probation for petty theft and trespassing.
Mother and Jonathan M. agreed to participate in voluntary family maintenance services, while L.S. was voluntarily placed in foster care. Detention
On June 13, 2018, a section 300 petition was filed, alleging mother's mental health, criminal, and domestic violence history (§ 300, subd. (b)(1)), and her previous child welfare history and termination of parental rights (§ 300, subd. (j)) placed L.S. at substantial risk of harm. It also alleged a lack of provision for support as the whereabouts of alleged father Brian K. was unknown (§ 300, subd. (g)).
The detention hearing was held June 14, 2018. Mother did not appear but was appointed counsel. L.S. was ordered detained and jurisdiction set for July 18, 2018. After being appointed counsel, mother named Charles R. as a second possible father for L.S.
On June 22, 2018, the agency filed a motion to appoint counsel for Brian K., who had phoned the agency stating he might be the baby's father, but was not certain. He wanted a DNA test, reported that he lived in Idaho, that he had possible Ottawa Indian ancestry, and that he would be available for court by telephone. On June 26, 2018, Brian K. appeared by telephone. Counsel was appointed, Indian Child Welfare Act (ICWA) notices were ordered to be sent, and the jurisdiction/disposition hearing was reset for August 9, 2018, in order to accommodate ICWA notice. DNA testing was ordered. The hearing was trailed to September 20, 2018, in order to perfect ICWA notice. Jurisdiction/Disposition
The report prepared for the jurisdiction/disposition hearing recommended services be granted to mother, but denied to Brian K., who had been confirmed through DNA testing to be L.S.'s biological father. Mother reported that she met Brian K. in a trucking school in Indiana, had known him for just over a year, but was never in a relationship with him. She had not seen him since August of 2017 and had limited telephone contact with him. Mother reported that Brian K. had been diagnosed with depression, anxiety and posttraumatic stress disorder.
The report indicated that mother had completed a psychological evaluation and, contrary to a previous evaluation, she was now considered to be "a good candidate for successful reunification " by Dr. Cherye Carmichael. However, Dr. Carmichael also cautioned that mother was "naïve about the day-to-day necessities of raising a healthy child." Mother struggled during visits with L.S. in knowing how to feed, change and soothe her. She was "easily persuaded to get off an acceptable path by someone else's impulsivity" and had very poor judgment in men.
The report also noted that L.S. had a heart murmur that was being monitored. Mother missed her last two consecutive visits and her interaction and parenting skills needed improvement.
The report recommended providing services to mother, but denying them as to Brian K., as he had no relationship with the minor.
At the jurisdiction/disposition hearing, Brian K.'s status was raised to "biological" father, and his counsel requested a contested hearing. The hearing was set for November 8, 2018.
The hearing was subsequently trailed a number of times, due to new ICWA information and the need to resend notice.
The jurisdiction/disposition hearing was heard January 28, 2019. At that time, the juvenile court struck the section 300, subdivision (g) allegation as to Brian K. and found the subdivisions (b)(1) and (j) allegations true. L.S. was declared a dependent and removed from parental custody. Upon agreement by the parties, the juvenile court entered orders as to mother, with disposition for Brian K., trailed to February 4, 2019. The juvenile court found progress for mother to be "good" and for Brian K. "minimal at best." Reunification services were ordered for mother with domestic violence victim counseling added to her case plan. A six-month review was scheduled for July 9, 2019.
After a contested hearing in February 2019, the juvenile court denied Brian K. presumed father or Kelsey S. status, and he was denied reunification services pursuant to section 361.5, subdivision (a)(1). Six-Month Review
Adoption of Kelsey S. (1992) 1 Cal.4th 816.
Brian K. appealed the juvenile court's paternity decision. We affirmed the juvenile court's ruling on October 1, 2019, in case No. F078890.
The report prepared for the six-month review hearing recommended termination of reunification services for mother. Mother had moved into an apartment, but had also allowed a CPS client to move into the apartment without notifying the agency. She had lost her job due to missed work. She also continued her relationship with Jonathan M. and the two had been involved in two known domestic violence incidents. Despite this, mother expressed a desire to continue her relationship with Jonathan M.
One of the domestic violence incidents occurred in the parking lot of the Sierra Vista offices. L.S.'s caretaker arrived at the Sierra Vista parking lot to bring L.S. to a visit when a vehicle drove up recklessly, tires screeching. When the vehicle hit the curb, mother and Jonathan M. both got out of the car, yelling and cursing at each other. Jonathan M. insisted that they needed to finish their argument; mother stated she would finish later as she had to "go in and get her daughter back." The caregiver observed the two hitting each other. Jonathan M. hit the vehicle with his fists, and when he saw the caregiver, he yelled at her, threatened her, and hit her vehicle with his fists as well. The caregiver moved her vehicle, and as she did so, Jonathan M. followed her, yelling, "give me my baby."
After the event, mother initially stated she would leave Jonathan M. and get a restraining order, but she did not follow through. Mother's domestic violence counselor reported that mother attended six sessions, missed three and was at a high risk for re-abuse.
The report indicated that mother completed her parenting classwork, as well as 10 individual sessions. Mother was anxious and confused as to what to do in her first parent/child lab; the second was cancelled due to the altercation in the parking lot.
The report chronicled weekly visits between mother and L.S. Mother had learned ways to interact with L.S. and to provide her with basic care, such as feeding and diaper changes. And while L.S. was responsive to mother, she did not appear "fully bonded" to her. Mother continued to exhibit poor hygiene, despite being admonished.
At a visit on June 3, 2019, L.S. was crying but stopped as soon as staff held her. It was noted on June 17, 2019, that mother would not inform staff if L.S. fell or got hurt until they questioned her about it. There was limited interaction between mother and L.S. and there appeared to be "no emotional connection." That same visit, when the visit ended, L.S. stood at the door, reaching for staff. She was excited to see her caregiver. In visits to the caregiver's home, L.S. was observed to be bonded to the caregiver.
On July 8, 2019, the juvenile court found that ICWA did not apply. A contested review hearing was set for July 18, 2019.
At the July 18, 2019, six-month review hearing, mother was present, but reported that she had moved to Nevada. She had failed to attend her most recent visit with L.S. Reunification services were terminated and mother was granted once a month visits. A section 366.26 hearing was set for November 15, 2019, and eventually trailed to January 9, 2020, in order to perfect service on father. Section 366 .26 Hearing
The report prepared for the section 366.26 hearing recommended termination of parental rights and adoption as the preferred permanent plan. L.S. had now been with her caregiver well over a year and her caregiver wished to adopt her.
The report chronicled mother's visits with L.S. Prior to termination of services, mother had weekly two-hour visits. During those visits, she would read to L.S., sing with her and play with the toys in the room. She tried various ways of soothing L.S. and was affectionate with her. However, while L.S. was responsive to mother, she did not appear to be fully bonded to her. On July 15, 2019, mother called to cancel her visit, due to her move out of state. All of mother's visitation observations reports were attached to the report.
After termination of services in July 2019, mother was scheduled for once a month visits. She visited in September and November of 2019, but missed her visits in August, October, and December of 2019. According to mother, she missed her August visit because she was incarcerated in Nevada.
At the January 9, 2020, section 366.26 hearing, the agency and counsel for L.S. submitted on the report. Counsel for mother made an offer of proof, which was accepted, that mother did not agree with the recommendation and that she loved L.S. and would like an opportunity to reunify with her.
Counsel for mother asked that the juvenile court consider the beneficial parent-child exception to termination of parental rights, and noted that, in the visitation logs, "there were more positive interactions than there were negative interactions" between mother and L.S. It was clarified again that mother had not visited L.S. since November of 2019.
In its ruling, the juvenile court considered the beneficial parent-child exception, noting it had two prongs that had to be met. The juvenile court found that the first prong of that exception had not been met, finding "mother in this case has not regularly and consistently visited. ... I understand that work gets in the way, but when one only has one visit per month, the Court would expect a parent to attend all of those visits."
The juvenile court also noted that L.S. was only one month old when she was removed from mother's custody, she had been in the same placement for over 18 months and she had never developed "much of a relationship or bond with her mother." The juvenile court then terminated mother and Brian K.'s parental rights.
DISCUSSION
Mother contends the juvenile court erred in terminating parental rights because there was substantial evidence that she maintained regular visitation with L.S. and that L.S. would benefit from continuing the parent-child relationship. As we discuss, mother's contention is without merit. The Beneficial Parent-Child Relationship Exception
Section 366.26 provides that if parents have failed to reunify with an adoptable child, the juvenile court must terminate parental rights and select adoption as the permanent plan for the child unless it finds that termination of parental rights would be detrimental to the child under one of four specified exceptions. Mother contends the juvenile court erred in failing to find that the exception contained in section 366.26, subdivision (c)(1)(B)(i) applies to her relationship with L.S. in that she maintained regular visitation and contact with L.S. and L.S. would benefit from continuing the relationship.
"Overcoming the statutory preference for adoption and avoiding the termination of parental rights requires the parent to show both that he or she has maintained regular visitation with the child and that the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) 'Sporadic visitation is insufficient to satisfy the first prong ...' of the exception. [Citation.] Satisfying the second prong requires the parent to prove that 'severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The issue for purposes of the statutory beneficial relationship exception "is not whether there was a bond between [parent] and [child]. The question is whether that relationship remained so significant and compelling in [the child's] life that the benefit of preserving it outweighed the stability and benefits of adoption. The ' "benefit" ' necessary to trigger this exception requires that ' "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." ' [Citations.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 396-397.)
The beneficial relationship must be examined on a case-by-case basis, taking into account the many variables that can affect the parent-child relationship, including the age of the child, the portion of the child's life spent in the parent's custody, and the positive and negative effects of interaction between parent and child. (In re Anthony B., supra, 239 Cal.App.4th at pp. 396-397; In re G.B. (2014) 227 Cal.App.4th 1147, 1166.) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Standard of Review
Appellate courts are divided over the appropriate standard of review to apply to an order determining the applicability of the beneficial parent-child relationship exception. Some courts have applied the substantial evidence test (e.g., In re G.B., supra, 227 Cal.App.4th at p. 1166), while others have applied the abuse of discretion standard (e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351). Still other courts have adopted a mixture of both standards, applying 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 E.T. (2018) 31 Cal.App.5th 68, 76.)
This issue is currently before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019 (S255839). --------
Our conclusion in this case would be the same under any of these standards because the practical differences between them are "not significant," as they all give deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 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 [or she] did.' " ' " (Ibid.) Moreover, a substantial evidence challenge to the juvenile court's failure to find a beneficial parental relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) Analysis
Here, the juvenile court found that mother failed to meet the first prong of the beneficial relationship exception in that she had not regularly visited L.S. Mother contends this was error, as she had an "overall" visitation rate of 81%, and contends this should be sufficient, arguing that the visits she missed were due to work, a lack of finances, or being incarcerated. Mother asked that we address the issue of what constitutes "regular and consistent" visitation.
We will not speculate as to what constitutes "regular and consistent" visitation other than to say that the juvenile court on the facts of this case did not err in finding mother had not met this prong. As noted above, the beneficial relationship must be examined on a case-by-case basis, taking into account the many variables that can affect the parent-child relationship. (In re Anthony B., supra, 239 Cal.App.4th at pp. 396-397.)
While mother did visit regularly in the early stages of the case, she failed to do so leading up to the section 366.26 hearing. At the time mother's reunification services were terminated on July 18, 2019, mother had missed her last weekly visit with L.S. because she had moved to Nevada. L.S. was 14 months old at this point. At that time, she was given monthly visits, which she failed to take advantage of. While she visited in September and November of 2019, she missed visits in August, October and December of that year. At the time of the section 366.26 hearing in January of 2020, mother had not seen L.S., who was just shy of 20 months old, for two months. Mother visited L.S. only three times in the seven months leading up to the hearing. This is not sufficient regularity to maintain, much less form, a significant bond with a toddler.
Under the circumstances presented here, although mother points to some evidence that she attended "most" of the allotted visits, she has failed to make the showing necessary to support the first prong of the beneficial parent-child exception. As such, there is no error in the juvenile court's finding that the beneficial parent-child relationship exception did not apply when it terminated mother's parental rights, and we need not address the applicability of the exception further.
DISPOSITION
The order terminating parental rights is affirmed.
FRANSON, Acting P.J. WE CONCUR: PEÑA, J. DeSANTOS, J.