Opinion
F081485
02-10-2021
In re HEAVEN B. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES Plaintiff and Respondent, v. TABITHA S., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CEJ300100-1, 17CEJ300100-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Gary L. Green, Commissioner. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Tabitha S. (mother) appeals from the juvenile court's orders terminating her parental rights under Welfare and Institutions Code section 366.26 to her now 14-year-old daughter, Heaven B., and ten-year-old son, Daniel B., Jr. Mother contends the Fresno County Department of Social Services (department) failed to comply with the juvenile court's visitation order and provide an accurate assessment of her relationship with the children. The department's actions, she argues, prevented her from establishing the beneficial parent-child relationship exception to adoption and denied her due process right to effectively contest the termination of her parental rights. The beneficial parent-child exception requires a parent to establish that she maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Mother further contends the juvenile court's decision not to apply the exception was error. We affirm.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
In April 2017, law enforcement placed a protective hold on then 10-year-old Heaven and six-year-old Daniel after finding them living with mother in a shed with no electricity or running water. Mother and the children's father, Daniel B., Sr., (father), were divorced and sharing custody of the children. Father was aware of the conditions in which the children were living.
Mother told a social worker from the department she smoked marijuana every day. If the children were home, she went across the street to smoke it. Daniel told the social worker that mother smoked "weed," which he described as "small green grass" that she kept in a red jar. He described how she made "little cigarettes, out of white paper." Heaven said mother smoked marijuana outside. The children felt safe with mother, but not father because he yelled and spoke disparagingly about mother. The social worker took the children into protective custody and placed them in foster care.
In May 2017, the juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the parents to participate in reunification services, including weekly supervised visitation. Father subsequently waived his reunification services and asked to surrender his parental rights. The department placed the children with their paternal uncle and his wife (caregivers), where they remained.
By the six-month review hearing scheduled for October 2017, mother had completed a parenting class and was participating in outpatient substance abuse treatment, mental health counseling and random drug testing. However, she continued to use marijuana, claiming she needed it for medicinal purposes, but had not provided the necessary documentation. She also tested positive for cocaine in May 2017. When confronted with the test results, she denied using cocaine, stating she had not used it for 14 years, and began yelling and acting erratically. She regularly visited the children but was at times inappropriate, having side conversations with them and making promises about the future.
The juvenile court found mother made moderate progress in achieving her case plan objectives and continued reunification services to the 12-month review hearing scheduled for April 2018.
Meanwhile, mother continued to use marijuana and was adamant that she needed it. As a result, the staff at WestCare, where she was receiving outpatient substance abuse treatment, discharged her and the department refused to advance her to unsupervised visits. In June 2017, she submitted a letter from a doctor stating she used marijuana for anxiety, depression, attention deficit hyperactivity disorder (ADHD) and diverticulitis, and it seemed to be effective. The doctor asked that she be allowed to continue to use marijuana.
Social workers met with mother and informed her the doctor's note was insufficient because it was a recommendation, not a prescription. During their meeting, the social workers raised the subject of her positive result for cocaine and an altercation she had with the police. She responded by storming out of the room, prompting the social workers to recommend she complete the higher level of intensive outpatient treatment.
WestCare staff met with mother in September 2017, after she obtained a medicinal marijuana card. They told her the card was insufficient and suggested she discuss alternative treatment options with her doctor or obtain a doctor's prescription detailing the dosage, diagnosis and side effects. They pointed out the department did not contract with agencies that allowed marijuana use. Mother continued to participate in WestCare's outpatient treatment program, which she was scheduled to complete on October 18. However, she left the program before completing it and was discharged on October 16.
Mother did not obtain a doctor's prescription and stopped drug testing. At a meeting in December 2017, she explained to the social worker and substance abuse specialist she did not have the money to drug test and had exhausted her fee waivers. The substance abuse specialist referred her to Pathways, an intensive outpatient treatment program, and for drug testing. Mother was denied treatment at Pathways after she produced her marijuana card and said she used marijuana daily.
The caregivers supervised mother's visits, which took place at a park or fast food restaurant. Mother usually arrived between five to 15 minutes late and missed a few visits. She continued to tell the children she was going to get them back and make promises to them. According to the caregivers, the children seemed to shut down during visits. However, social workers monitored a visit at a fast food restaurant in March 2018 and observed mother engaging appropriately with the children. She bought them food and helped them with their homework. Heaven was quiet and did not talk much, but Daniel sat next to mother and discussed school and selling candy bars.
In its report for the 12-month review hearing, the department recommended the juvenile court terminate reunification services and set a section 366.26 hearing to consider a permanent plan of adoption for the children with their caregivers.
Mother appeared with her attorney at the 12-month review hearing and requested a contested hearing. The juvenile court set a settlement conference on May 21, 2018, and a contested review hearing on June 18. Mother did not appear at the May 21 hearing and the court terminated her reunification services and ordered that visits remain weekly and supervised for a minimum of one hour. The court set the section 366.26 hearing for September 10, 2018. Mother did not challenge the court's setting order by extraordinary writ petition. (Cal. Rules of Court, rule 8.450.)
In July 2018, the social worker supervised a visit with mother and the children. Mother arrived before the children and waited for them. The children greeted her with a hug and a kiss. While in the elevator on the way to the visitation room, Heaven leaned her head onto mother's chest and mother held her tight by placing one of her hands on Heaven's head and wrapping her other arm around her. Mother explained to the social worker that Heaven had motion sickness. Mother and the children ate pizza and cheese bread that mother brought. While eating, they conversed about their week and activities. Mother told them she had four weeks left to complete a trade school she was attending. The children discussed their excitement for the next school year. Mother brought out paper, markers and pens from her backpack and engaged the children in drawing characters and playing tic-tac-toe. Mother talked to Daniel about football and to Heaven about books she was reading. They danced to songs mother played on her phone. The children appeared happy and content with mother and were very talkative to her. They told her they loved her and missed her cooking and watching movies together. At the end of the visit, they told her they loved her and hugged and kissed her.
The children's visits with mother in August 2018 were very similar. They were affectionate and loving toward each other. Mother was very engaging with the children and praised and encouraged them. She described what they looked like as babies, what they liked and did not like to eat and how they learned to walk. They kissed and hugged each other at the end of the visit and expressed their love for each other. At another visit, mother brought the children their favorite snacks and the children described the outfits they planned to wear for their first day of school. Heaven was very talkative and comfortable with mother. She put her feet on mother's lap and leaned into her for affection and hugs. They laughed together at Daniel, who stacked his crackers and cheese and tried to stuff it all in his mouth. Mother played the theme song from the movie "Jaws" on her phone and asked the children to identify different sharks and their characteristics. Three times during the visit, Heaven asked the social worker what time it was, stating she did not want the visit to end. The visit ended as had the others, with mother hugging Heaven tightly on the elevator and mother and the children hugging and kissing each other and saying they loved each other.
The department recommended the juvenile court terminate parental rights and select adoption as the children's permanent plan in its report for the section 366.26 hearing. The caregivers indicated they were interested in adoption. Heaven appeared to understand the concept of adoption but was conflicted because she had a connection to both her caregivers and mother. On several occasions, the social worker attempted to ask Heaven how she felt about the possibility of being adopted and whether she felt comfortable with making that decision. Heaven was unable to give the social worker a clear answer as to how she felt. Her therapist said she was very dedicated to her mother and avoided discussing adoption as a permanent plan. On one occasion, Heaven cried when asked but was comforted by the caregivers, who rubbed her back and tousled her ponytail. In September, she told the social workers she agreed with the plan of adoption. Daniel also appeared to understand the concept of adoption and, like Heaven, had mixed feelings because he had developed a close relationship with his prospective adoptive parents and maintained a connection with his mother.
The department considered the children to be adoptable because their caregivers wanted to adopt them, but they were hard to place because of their ages. The children appeared to enjoy interacting with their caregivers and had developed a trusting relationship with them. Although mother regularly visited the children and they appeared to recognize her as their parent, the department did not believe mother could provide the children the stability and continuity they needed. The caregivers were willing to allow mother monthly visits with the children, but not indefinitely because she had not resolved the issues that caused the children to be removed.
Mother appeared on September 10, 2018, represented by counsel who objected to the department's recommendation and requested a contested hearing. The juvenile court set a settlement conference for November 14, 2018, and a contested section 366.26 hearing for November 26, 2018.
Mother's attorney filed a statement of issues, raising the applicability of the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) and asking the juvenile court to consider legal guardianship or long-term foster care as an alternative to termination of parental rights. He asserted the exception applied because mother maintained regular visitation and contact with the children and had a strong, parental bond with them. He specifically identified four potential witnesses, including mother.
Mother did not appear at the settlement conference on November 14. Her attorney could not explain her absence and requested a continuance. He and mother discussed the case and she understood the court date was for a settlement conference. The department and minors' counsel objected to a continuance for lack of good cause. The juvenile court denied the request for a continuance, terminated parental rights and ordered the children placed for adoption.
We reversed the juvenile court's termination orders, concluding mother was deprived of her due process right to a contested section 366.26 hearing and remanded the case for the juvenile court to set a contested section 366.26 hearing.
We grant respondent's request that we take judicial notice of the appellate record in In re Heaven B. (Sep. 11, 2019, F078680) [nonpub. opn.]. On our own motion, we also take judicial notice of our case file and opinion in case No. F078680. (Evid. Code, §§ 452, subd. (d), 459, subds. (a)-(c).)
The department maintained its recommendation the juvenile court terminate parental rights. The court reappointed counsel for the parents and at a hearing on December 18, 2019, set a contested section 366.26 hearing for March 16, 2020, and ordered reasonable supervised visits for mother to occur twice a month.
The department opined the parents' circumstances had not changed since the case was remanded to the juvenile court. On October 10, 2019, social worker Alexa Arnold contacted mother to inform her of our court's decision. Since her parental rights were terminated, mother visited the children once every other week for an hour. She believed the visits went well but she was not able to have private conversations with the children because the caregiver was always present. The caregiver confirmed mother's visitation schedule. It was originally once a week, but he reduced their frequency because mother cancelled or did not show up half of the time. She was more consistent when visits were every other week. Mother told Arnold she did not have a stable place to live and was leaving that weekend to go to Alabama to care for her sick father. She found a job in Alabama so she could return to appear at the court proceedings in Fresno.
On January 9, 2020, mother informed Arnold she returned from Alabama and requested a visit. A visit was scheduled for January 13, 2020, at 2:00 p.m. However, at 11:21 a.m. on that date mother texted Arnold and asked if the visit could be advanced to 4:00 p.m. The visit was rescheduled to January 21, 2020, because Arnold and the caregiver could not attend the visit at 4:00 p.m.
Arnold observed the visit on January 21, 2020. It took place at a fast food restaurant. Mother greeted the children and hugged them. They were smiling and happy to see each other. Mother brought activities for them to do together during the visit, snacks for them to eat during their visit and take to school and other items such as plush animals. Mother told them she had the same plush animal on her pillow at home. She worked on projects with them; a wooden sign for Daniel and a stained-glass art piece for Heaven. Mother inquired about Daniel's school activities and gave Daniel a high five when the caregiver said he started wrestling. She asked about football and was told the coach did not play Daniel because he "mess[ed] around." Mother told Daniel it would have been "super awesome" if he had been able to play. Mother showed the children photos on her phone and took some dice from her purse to play with. She teased Daniel about having a hair in his nose and asked the children what they were doing at school for Valentine's Day. She talked about sending Valentine treats for them. Heaven had a Rubik's cube and wanted to show mother a pattern and sketched while mother and Daniel played dice. Mother took a selfie of herself with the children and they smiled along with her. After an hour Arnold had to leave but the caregiver said he would be there for another 30 minutes or so. The children appeared to enjoy the visit and there were no concerns.
The children told Arnold they enjoyed visiting mother and looked forward to visits, but wanted to proceed with the adoption. They also wanted to visit their father, but he had not requested visits since his parental rights had been reinstated.
Mother testified at the contested hearing on March 16, 2020, that Arnold contacted her before she left for Alabama. The maternal grandmother had a heart attack and mother was going to Alabama long enough to take care of her parents until her sister could take over their care. In a subsequent telephone conversation, Arnold said she had to observe three visits to see how mother and the children interacted. However, Arnold only observed one visit for 30 to 45 minutes. Arnold explained she was extremely busy and would not be able to observe any more visits. Arnold knew mother wanted regular visits with the children.
The children were "really excited" to see mother at the January 2020 visit and were sad when it ended. The next visit occurred three weeks later, in February. The caregiver was present with his children. Mother did not ask why his children were there because he previously told her it was not her business; she did not have custody of her children and did not have the right to say who attended visits. She and the children hugged and kissed. Heaven invented a game that they played. At the end of the visit, the children did not want to leave but mother assured them she loved them and would be thinking of them. She did not complain to Arnold other children attended the visits. She was afraid the caregivers would discontinue her visits; they had threatened that before. She did complain to Arnold's predecessor who told her to enjoy her time with the children since she only had one hour a week with them.
Mother's third visit occurred two weeks before the hearing. The children were excited to see her and were more comfortable with her. Daniel sat on her lap for the entire visit and the children were sad when the visit ended.
Mother was waiting to occupy a one-bedroom apartment and was working full time. If the children were returned to her, she would look for a three-bedroom apartment. She acknowledged she made mistakes but always made her children feel loved and wanted. She believed it would be in their best interest to be returned to her custody even though she knew it would take time to adjust.
Arnold testified mother's visitation was reduced to twice a month in March 2019. On September 16, 2019, mother visited the children before going to Alabama and did not visit again until January 21, 2020. Mother had set visits at a fast food restaurant every other week at 5:30 p.m. Mother cancelled the first visit in February 2020. The visit was rescheduled for the following Monday but was cancelled because mother did not give 24-hour notice. Another visit was scheduled for February, but mother did not show up. She had a visit the first Monday in March and had a visit planned after the hearing.
The caregivers wanted mother to have visitation if they adopted the children. There were no problems with the visit Arnold observed; it went "very well." There was no question mother and the children loved each other and had a relationship. Arnold did not believe it was a significant parent-child relationship. The children told her they wanted to be adopted by their caregivers. They had been stable in their home for three years and looked to them to meet their day-to-day needs.
Mother's attorney argued the beneficial parent-child exception barred adoption as a permanent plan. Following argument, the juvenile court continued the hearing to March 23, 2020, for its ruling. Meanwhile, the court was closed for several months because of the COVID-19 health emergency. The hearing on the ruling was continued to June 15, 2020.
The juvenile court found the children were likely to be adopted. The court further found mother regularly visited and maintained consistent contact with the children and had a relationship with them. However, the court also found insufficient evidence that maintaining that relationship outweighed the benefit the children would receive through a permanent plan of adoption. The court terminated parental rights and ordered the children placed for adoption. This appeal ensued.
DISCUSSION
I. Due Process
"It is axiomatic that due process guarantees apply to dependency proceedings." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756-757.) "A parent's interest in the companionship, care, custody and management of his or her children is a fundamental civil right." (In re Dakota H. (2005) 132 Cal.App.4th 212, 223.) "[S]tatutory procedures used for termination of parental rights satisfy due process requirements only because of the demanding requirements and multiple safeguards built into the dependency scheme at the early stages of the process. [Citations.] If a parent is denied those safeguards through no fault of her own, her due process rights are compromised." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504 (Hunter S.).) II. Section 366.26
"[S]ection 366.26 cannot properly be understood except in the context of the entire dependency process of which it is a part.... [T]he purpose of the section 366.26 hearing is not to accumulate further evidence of parental unfitness and danger to the child, but to begin the task of finding the child a permanent alternative family placement. By the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness. Except for a temporary period, the grounds for initial removal of the child from parental custody have been established under a clear and convincing standard [citation]; in addition, there have been a series of hearings involving ongoing reunification efforts and, at each hearing, there was a statutory presumption that the child should be returned to the custody of the parent. [Citations.] Only if, over this entire period of time, the state continually has established that a return of custody to the parent would be detrimental to the child is the section 366.26 stage even reached." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, fn. omitted.)
The express purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) Once the court has decided to end reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1).) "[I]f the child is adoptable ... adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child." (In re Celine R. (2003) 31 Cal.4th 45, 53.) III. Beneficial Parent-Child Relationship Exception
A parent seeking to establish a beneficial parent-child relationship sufficient to avoid the termination of parental rights must show, by a preponderance of the evidence, that he or she 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); In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) In this context, appellate courts have recognized "a lack of visitation may 'virtually assure[ ] the erosion (and termination) of any meaningful relationship' between mother and child." (Hunter S., supra, 142 Cal.App.4th at p. 1504.)
"[T]he erroneous denial of parent-child visitation compromises a parent's due process rights to litigate and establish" the beneficial relationship exception to the termination of parental rights. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1007.) This is so because "the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child." Thus, "[m]eaningful visitation is pivotal to the parent-child relationship, even after reunification services are terminated." If the juvenile court grants visitation, " 'it must also ensure that at least some visitation at a minimum level determined by the court itself, will in fact occur.' " (Hunter S., supra, 142 Cal.App.4th at pp. 1504-1505.)
" 'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one 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 Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial parent-child relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception[,] the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) "Obviously, the only way a parent has any hope of satisfying this statutory exception is if she maintains regular contact with her child." (Hunter S., supra, 142 Cal.App.4th at p. 1505.) If a parent is deprived of visitation with his or her child, the parent is not going to be able to establish the exception or have any meaningful opportunity to avoid the termination of parental rights under section 366.26, subdivision (c)(1)(B)(i). (Ibid.) Thus, the erroneous denial of parent-child visitation compromises a parent's due process rights to litigate and establish the exception. (Id. at p. 1504.) IV. Standard of Review
At issue in Hunter S. was visitation under the beneficial parent-child relationship exception to adoption then codified as section 366.26, subdivision (c)(1)(A), subsequently renumbered without any changes as subdivision (c)(1)(B)(i). (Stats. 2008, ch. 482, § 5, p. 2812.)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show 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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The juvenile court's decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the beneficial parent-child relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528; In re Breanna S. (2017) 8 Cal.App.5th 636, 647.) "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (Breanna S., at p. 647; see In re K.P., supra, 203 Cal.App.4th at pp. 621-622.) V. The Juvenile Court Properly Found the Benefit of Adoption Outweighed the Benefit of Preserving Mother's Parental Rights
Upon remand, the juvenile court ordered twice monthly visitation for mother. The order was issued in December 2019, while mother was in Alabama. She returned in January 2020 and visited the children on January 21. She and the prospective adoptive father had a standing visit scheduled every other Monday at an agreed-upon time and place. Therefore, mother did not have to prearrange visits or wonder when the next visit would occur. All she had to do was show up at the scheduled time and place. Mother, however, subsequently cancelled visits or did not show up. Consequently, she did not visit the children again until March 2020. Contrary to her assertion, her failure to visit in January and February 2020 was not because the department did not enforce the visitation order but because she was either unavailable out of state or unable to visit at the scheduled time. As to mother's contention Arnold did not observe three visits, she fails to show Arnold was required to do so. She does not, for example, cite statutory authority, rule of court or even departmental policy. But more importantly, mother was not prejudiced by the frequency of her visitation with the children or the absence of a current assessment of her relationship with them.
Respondent argues mother forfeited the issue by not raising it before the juvenile court. We need not address forfeiture since we find no prejudice. --------
Mother was not prejudiced because the juvenile court found the beneficial parent-child exception applied. The court credited mother with regularly visiting the children and acknowledged she had a relationship with them, which is obvious from the visitation narratives. Mother was consistently loving with the children and they loved her and enjoyed her company. The juvenile court could not find, however, that any detriment the children would suffer from the termination of their relationship with mother outweighed the benefit they would receive by being adopted by their caregivers. The children had been with their caregivers for nearly three years and were unwavering in their desire to be adopted. We find no due process violation nor abuse of discretion in the court's decision to terminate mother's parental rights.
We find no error.
DISPOSITION
The orders terminating parental rights are affirmed.