Opinion
A152136 A152648
06-28-2018
In re Y.G., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1600075)
In these consolidated appeals, K.S. (Mother) seeks reversal of an order terminating her parental rights to her son, Y.G. (Child), entered at a hearing held pursuant to Welfare and Institutions Code section 366.26. Mother maintains the juvenile court erred when it found the benefits to Child of adoption outweighed the benefit Child would derive from continuing their relationship. Because we do not agree the juvenile court erred, we affirm.
All undesignated statutory references below are to the Welfare and Institutions Code.
Child's presumed father, R.G. (Father), is not a party to this appeal.
Mother also filed a petition for writ of habeas corpus, which this court ordered to be considered with this appeal. We have disposed of the habeas petition by separate order filed this day. (Cal. Rules of Court, rule 8.387(b)(2)(B).)
I. BACKGROUND
The parties' briefs demonstrate they are familiar with the facts of this dependency case. This court previously had occasion to become acquainted with much of the record in considering Mother's petition for an extraordinary writ, after the juvenile court set a section 366.26 hearing in this matter. We now focus, therefore, on the order and issue discussed in Mother's consolidated appeals and, in summarizing key facts and events, rely in part on the nonpublished opinion, K.S. v. Superior Court (Aug. 17, 2017, A151470) 2017 WL 3530109 [nonpub. opn.] (K.S.), in which this court denied Mother's extraordinary writ petition.
On our own motion, we take judicial notice of the prior opinion. (See, e.g., In re W.R. (2018) 22 Cal.App.5th 284, 286, fn. 2 [Citation of a prior unpublished opinion "is permitted by California Rules of Court, rule 8.1115(b)(1) 'to explain the factual background of the case and not as legal authority' "].)
The Contra Costa County Children and Family Services Bureau (Bureau) filed a juvenile dependency petition on behalf of Child, then almost one-and-a-half years old, and detained him in January 2016. (K.S., supra, 2017 WL 3530109, *1.) Mother subsequently pled no contest to allegations that she (1) failed to protect Child by leaving him with an inappropriate caregiver, and (2) had a mental health diagnosis requiring continued treatment. (Ibid.) "On May 30, 2017, at the conclusion of a contested combined six- and twelve-month review hearing, the juvenile court set a section 366.26 hearing for September 28, 2017, and terminated reunification services." (Ibid.)
Mother petitioned in propria persona for an extraordinary writ, asking this court to set aside those orders. (K.S., supra, 2017 WL 3530109, *1.) She contended insufficient evidence supported the juvenile court's conclusions that (1) she was offered reasonable reunification services, and (2) there was not a substantial probability Child would be safely returned to her home if the juvenile court extended Mother's services for almost two more months, to an 18-month review hearing. (Ibid.) This court denied Mother's petition, rejecting both arguments. (Ibid.)
As support for its decision on the second issue, the juvenile court observed that Mother's therapist, who testified "he treated Mother in weekly sessions for a year[,] . . . diagnosed her as having borderline personality disorder. The disorder, [the therapist] testified, was characterized by 'pretty dramatic swings between anger, sadness, [and] euphoria,' and by difficulty regulating those emotions, which could 'lead to pretty severe interpersonal difficulties,' making it challenging to 'interact effectively with the world.' Treatment was 'a very long process' requiring years, [the therapist] testified, because the person must change deeply set habits of how she viewed herself and others, and how she interacted with the world." (K.S., supra, 2017 WL 3530109, *4.)
Despite regular treatment, the therapist testified, Mother did not make "significant progress. She continued to behave erratically and impulsively, and had angry outbursts, unstable moods, and tumultuous relationships with those around her. [Mother] was unable to make much progress [in] . . . therapy, . . . [the therapist] testified, because she was too distressed about other events in her life, for example, '[f]ights with her partner, fights with neighbors, issues involving her social worker, [and] her attorneys . . . .' Mother appeared to have such conflicts with every person with whom she regularly interacted, [the therapist] observed." (K.S., supra, 2017 WL 3530109, *4.)
Additionally, the juvenile court found that Mother "had been placed on multiple psychiatric holds ('5150's'); Mother was in 'constant contact with law enforcement'; and Mother had an 'antagonistic relationship and encounters with [a] neighbor' that had continued and escalated over time. Based on these facts, the juvenile court found Mother's mental health recently was 'in decline.' " (K.S., supra, 2017 WL 3530109, *5.)
The record indicates Mother (1) either contacted the police herself or was the subject of police reports on eight occasions between May 2016 (four months after Child was detained) and March 2017 (when the combined six- and twelve-month review hearing commenced), and (2) was placed on psychiatric holds twice in February 2017 and once in March 2017. (See K.S., supra, 2017 WL 3530109, *5 & fn. 13.)
After this court denied Mother's writ petition, the Bureau filed a report for the section 366.26 hearing on September 28, 2017, recommending termination of parental rights. In its included assessment, the Bureau reported Mother had seven additional contacts with various police agencies between May and August 2017, reflecting unstable behavior. In July 2017, for example, she reportedly called the police, advising that Father was a bigamist and had " 'placed a hit on her.' " The same month, she reportedly called the police to say her neighbor had " 'brandished . . . an apple juice glass bottle' " at her and threatened to kill her and her dog. After a witness told the police that Mother was the actual aggressor in the latter instance, the Bureau reported, the police arrested and jailed her for violating "an active criminal protection order."
At the section 366.26 hearing, the juvenile court considered the Bureau's report and heard further testimony from Mother. Then it found by clear and convincing evidence that Child was adoptable, and ordered the termination of Mother's parental rights. In doing so, the court rejected Mother's argument that termination of her parental rights would be detrimental to Child, because she had maintained regular visitation with him and he would benefit from continuing the relationship.
Although the juvenile court judge found that Mother did maintain regular visitation with Child, and had "fairly positive" interactions with him, the judge also observed that Child, by then, was "a little over three years of age," and had spent "more than half of his life"—"an eternity" at that formative time—"outside of Mother's care." The judge sympathized with Mother, observing that the mental health issues she "struggle[d] with [were] the hardest issues in dependency proceedings," that Mother could be "a very engaging, endearing person," and that she obviously "love[d] [Child] very much," making it a "very difficult case." Ultimately, however, the judge found, Mother did not meet her burden of "establishing the benefit of denying [Child] the opportunity to move on in a permanent forever home." To the contrary, the judge found, "it would be quite detrimental to maintain [Child] either in continued foster care or only allow a legal guardianship." Further, the judge found, Mother was not likely to be "in any position to parent [Child]" "in any near future."
II. DISCUSSION
Mother's sole argument, in these consolidated appeals, is that the juvenile court erred in finding that the beneficial parental relationship exception does not apply here.
At a section 366.26 hearing, "the [juvenile] court may order one of three alternative plans: (1) adoption (necessitating the termination of parental rights); (2) guardianship; or (3) long-term foster care. (§ 366.26, subd. (c)(1), (c)(4)(A).) If the child is adoptable, there is a strong preference for adoption over the other alternatives. [Citation.]" (In re J.C. (2014) 226 Cal.App.4th 503, 528.) In such circumstances, "the termination of parental rights and adoption is considered the best mechanism to ensure the child has 'a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]' [Citations.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.).)
The juvenile court may avoid terminating parental rights to an adoptable child only if it finds a compelling reason that termination would be detrimental to the child due to one of several circumstances. (§ 366.26, subd. (c)(1)(A)-(B).) Among other things, the court may find that the beneficial parental relationship exception applies, i.e., that termination of parental rights would be detrimental to the child because the parent has "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 parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.] To overcome the strong policy in favor of terminating parental rights and to fall within section 366.26, subdivision (c)(1)[(B)(i)]'s purview, the parent must show more than 'frequent and loving contact' [citation], and be more to the child than a mere 'friendly visitor or friendly nonparent relative.' [Citation.] The parent must show the parent-child bond is a 'substantial, positive emotional attachment such that the child would be greatly harmed' if parental rights were terminated. [Citation.]" (Helen W., supra, 150 Cal.App.4th at pp. 80-81; see also, In re Breanna S. (2017) 8 Cal.App.5th 636, 646 ["A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption"].)
In deciding whether the beneficial parental relationship exception applies, "the juvenile court must balance 'the strength and quality of the natural parent/child relationship' against 'the security and the sense of belonging a new family would confer.' [Citation.] The factors to be considered include: '(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.' [Citation.]" (Helen W., supra, 150 Cal.App.4th at p. 81.) " '[B]ecause 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.' [Citation.]" (In re Breanna S., supra, 8 Cal.App.5th at p. 646.)
In In re G.B. (2014) 227 Cal.App.4th 1147, this division reviewed the juvenile court's order on the beneficial relationship exception for substantial evidence, while noting that some courts have applied different standards of review. (Id. at p. 1166 & fn. 7; see In re Autumn H. (1994) 27 Cal.App.4th 567, 575-577 [substantial evidence standard applies to finding on the applicability of beneficial relationship exception]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion standard but recognizing difference in standards not significant]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [applying combination of both standards].) We agree with In re Jasmine D. that the practical differences between the two standards in evaluating the beneficial relationship exception are not significant. (In re Jasmine D., at p. 1351.) On the record before us, we would affirm the court's finding under either standard. (See In re G.B., at p. 1166, fn. 7.)
Here, there is no question that Child was likely to be adopted and that Mother maintained regular visitation and contact with him. The only issue, therefore, is whether Mother met her burden of proving that Child would benefit enough from a continuing relationship with her, i.e., that her relationship with Child promoted his well-being " 'to such a degree as to outweigh the well-being [he] would gain in a permanent home with new, adoptive parents.' " (In re G.B., supra, 227 Cal.App.4th at p. 1165.)
We agree with the Bureau that Mother failed to meet this burden. Mother's visits with Child were always supervised, and she remained in the early stages of working on her mental health issues. Her therapist testified she had been unable to make much progress in therapy, because she was too distressed about other events in her life and, particularly, about the conflicts she appeared to have "with every person with whom she regularly interacted." (K.S., supra, 2017 WL 3530109, *4.) In the period between the combined six- and twelve-month review hearing and the section 366.26 hearing, Mother continued to demonstrate unstable and confrontational behavior in her daily interactions with those around her.
Mother points out that her therapist also testified she was enthusiastic about coming to therapy and worked diligently on certain worksheets he provided her. While accurate, this testimony did not address Mother's actual progress or prognosis, or support a conclusion she would be able to parent Child in the near future.
In contrast, Child was in a secure placement and was bonded with his current and prospective caregivers. Although, as Mother points out, there was evidence he demonstrated some regressive behavior following some visits with her, the evidence also showed that his prospective parents received coaching on how to address the behavior, followed the suggestions they received (spending more time with Child after his visits with Mother, giving him some "down" time, and reassuring him), and Child eventually exhibited no significant behavioral changes following his visits with Mother.
Mother cares deeply for Child, but she has not shown that the juvenile court erred in terminating her parental rights.
III. DISPOSITION
The judgment terminating parental rights is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------