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In re E. S.

California Court of Appeals, Second District, Sixth Division
Apr 16, 2009
No. B210566 (Cal. Ct. App. Apr. 16, 2009)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Santa Barbara No. J-1251960, Honorable James E. Herman, Judge.

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, Santa Barbara County Counsel, Toni Lorien and Joel F. Block, Deputy County Counsel, for Plaintiff and Respondent


COFFEE, J.

S. S. appeals from the order terminating her parental rights to her minor daughter, E. (Welf. & Inst. Code, § 366. 26.) She contends that the beneficial parental relationship exception bars the termination of her parental rights. (§ 366.26, subd. (c)(1)(A)) We affirm.

All statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant (mother) is E.s' parent.. The record identifies T. S. as E.'s "alleged father." He lived in Canada and never appeared in the proceedings below. He is not a party to this appeal.

G., mother's older daughter and E's half-sister, was a teenager when E. was born. E., G., mother and T. S.'s mother (paternal grandmother), all lived in the same town.

In 2006, respondent Santa Barbara County Child Welfare Services (CWS) learned that mother wished to relinquish her parental rights for G. because she could not control her. Sometime later, G. was made a ward of the juvenile court in section 602 delinquency proceedings. The court placed her on probation and ordered that she be placed in a residential group home.

In May 2007, mother's boyfriend lived with her and two-year-old E. That month, CWS received a referral regarding injuries that E. had received while mother left her in boyfriend's care. On May 21, 2007, CWS filed a section 300 petition which alleged that boyfriend had inflicted serious injury upon E.; mother had failed to protect her; mother had left her in boyfriend's care; mother had a longstanding untreated substance abuse problem and a criminal history, including multiple drug offense convictions; mother had refused to submit to a drug test; and E. had suffered from and was at risk of serious harm or injury. (§ 300, subds. (a) & (b).)

On May 22, 2007, the juvenile court ordered E. detained in the custody of CWS for placement in a foster home or the home of a suitable relative. CWS filed an amended petition on June 14, 2007, with an additional allegation that E. had suffered from serious physical abuse, and that mother knew or reasonably should have known of the abuse. (§ 300, subd. (e).)

On July 3, 2007, during an uncontested jurisdictional and dispositional hearing, the court sustained the petition and ordered reunification services for mother. CWS prepared a July 23, 2007, disposition report that described mother's long substance abuse history and apparent proclivity to choose male partners with substance abuse issues. Because mother and E. seemed to have a special bond, CWS recommended that the court order intense counseling services designed to assist mother in making "the changes necessary to provide [E.] with a safe home in the future."

At the July 23, 2007, dispositional hearing, the court ordered that E. remain placed outside mother's custody and that mother participate in a case plan. The plan required mother to demonstrate the ability to live free from drug dependency and comply with all required drug tests; to obtain and maintain a stable and suitable residence for herself and E.; to take appropriate action to avoid being a domestic violence victim; to allow "NO CONTACT" between E. and boyfriend; and to complete domestic violence, parenting, and substance abuse programs approved by CWS. The court also granted visitation rights to mother and paternal grandmother.

In its January 7, 2008, six-month review report, CWS recommended that E. be returned to mother's care. CWS reported that mother provided urine samples that yielded negative results, and participated in Alcoholics Anonymous and Narcotic Anonymous groups, and a substance abuse program. She also attended domestic violence groups, parent education classes, and parenting groups. Mother had obtained a suitable home. G., who was still on probation, was staying overnight with mother several times a week.

On January 7, 2008, the court ordered that E. be returned to mother, and remain a dependent child of the court. It also ordered services for E. and mother.

On February 11, 2008, CWS filed a section 387 petition seeking a more restrictive placement for E. The petition alleged that on February 6, 2008, CWS learned that paternal grandmother saw boyfriend at mother's home; that investigating officers went to mother's home on February 8, 2008, and located another man, M., who had an extensive criminal history which included domestic violence; and that in April 2008, mother had used methamphetamine and marijuana. CWS removed E. from mother's home on February 8, 2008, and placed her in a licensed confidential shelter home.

On February 13, 2008, the court conducted a detention hearing. It ordered E. detained in the custody of CWS for placement in a foster home or the home of a suitable relative. The court also ordered supervised visits for mother, and granted CWS the discretion to liberalize visits.

According to the February 28, 2008, disposition report, mother was aware that M. had a history of domestic violence and had been in counseling. She "knew he was on drugs before and had big problems [and] that he went to counseling, but [she] didn't know he wasn't supposed to be around "[E.]." She said that her social worker, knew about M. and questioned why she had not told her "he wasn't supposed to be around [E.]." She "thought the only thing was that [boyfriend] couldn't be around [them]."

In its March 6, 2008, addendum report, CWS reported that mother had failed to attend any substance abuse program sessions between February 9 and 25, 2008, and that several people had seen boyfriend in mother's home and/or had seen his truck in her neighborhood. CWS recommended against offering mother additional reunification services.

After E.'s initial placement in a licensed confidential shelter home, CWS investigated other options and learned that paternal grandmother was willing to have E. live with her permanently. On March 10, 2008, after licensing procedures were complete, CWS placed E. in paternal grandmother's home.

On April 15, 2008, the court heard a contested jurisdictional and dispositional hearing. Mother testified and admitted that she used methamphetamines on April 8, 2008, and that she used marijuana weeks before that. Mother also testified that she had not seen boyfriend since August 2007, and that she did not see his truck near her residence in January or February 2008. Mother's friend, Debbie, testified that she visited mother's home often in 2008 and never saw boyfriend there.

Mother testified that since her recent eviction, she had stayed at the homes of friends and that she spent the night of April 14, 2008, at the home of her friend Debbie. Debbie testified that mother did not stay there that night.

Paternal grandmother testified that on February 5 or 6, 2008, in the morning, she saw boyfriend's truck on a street near mother's house. She also saw boyfriend leaving mother's house, through the front door. When boyfriend returned to his truck, paternal grandmother confronted him. Boyfriend first denied having been in mother's home. He then claimed to have stopped at mother's house very briefly, to give mother rent money. Grandmother believed that boyfriend had spent the night at mother's house because she saw "wrinkle marks still on the side of his face... from blankets." Mary, a family friend, saw boyfriend at mother's house several times between April and October, 2007.

The court concluded that mother had remained involved with boyfriend and had failed to deal with her drug addiction. It sustained the February 11, 2008, petition, declined to provide additional reunification services for mother, and set a section 366.26 permanency planning hearing for July 7, 2008.

In its July 7, 2008, report, CWS recommended that the court terminate mother's parental rights and order adoption as the permanent plan for E. On July 7, 2008, mother filed a section 388 request to change court order (Form JV 1-180), asking the court to return E. to her custody, or to provide additional reunification services to mother. Mother's request stated that she had been visiting E. regularly, had obtained a suitable home, was seeking employment, and had been submitting to drug tests with negative results. The court scheduled a combined section 388 and section 366.26 hearing for August 28, 2008.

In its August 28, 2008, addendum report, CWS reported that A., a teenager, admitted that she had provided urine for mother's drug testing in July 2008, and for many months before that. CWS spoke with A.'s parent, C., mother's former friend. C. expressed concern about A.'s possibly incriminating herself if A. became involved in mother's dependency case.

The report also indicated that G. made arrangements through CWS to visit with E. at paternal grandmother's home. E. and G. continued to develop and maintain a sibling bond.

While living with paternal grandmother, E. began attending Head Start and loved school. She also learned sign language and courteous manners from grandmother, and stopped swearing and battering her toys.

On August 28, 2008, the court conducted a combined section 388 and section 366.26 hearing. A. testified that she provided urine samples to mother for about a year, beginning in July 2007. Mother testified and denied that A. had provided her with urine samples. Mother thought that perhaps A. lied about the urine samples because mother had failed to pick up A. some time ago. Mother described a telephone call she received from C. (A.'s mother) after failing to pick up A. During the call, C. had yelled at mother for failing to pick up A., and threatened to notify CWS.

Mother presented witnesses who described her as a reliable worker, a loving mother, and an excellent housekeeper. One witness described C.'s reaction to mother's failure to pick up A.

The court found that mother failed to establish that the parental exception applied and terminated her parental rights. It also found that E. needed permanence, and that she was adoptable.

DISCUSSION

Mother contends that the beneficial parental relationship bars the termination of her parental rights. We conclude that substantial evidence supports the juvenile court's finding that mother failed to establish the section 366.26, subdivision (c)(1)(B)(i) exception to the termination of parental rights. (In re Derek W. (1999) 73 Cal.App.4th 823, 825, 827.)

Section 366.26, subdivision (c)(1)(B)(i) requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" due to an enumerated statutory exception. The "beneficial parental relationship" exception of section 366.26, subdivision (c)(1)(B)(i) requires a showing of "regular visitation and contact" and "benefit" to the child from "continuing the relationship." (See In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Mother had the burden to show that the exception applied. (In re Derek W., supra, 73 Cal.App.4th 823, 826.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) Only in the "extraordinary case" can a parent establish the exception because the permanency planning hearing occurs after the court has repeatedly found the parent unable to meet the child's needs. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The exception requires proof of "a parental relationship," not merely a relationship that is "beneficial to some degree but does not meet the child's need for a parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The existence of a beneficial relationship is determined by the age of the child, the portion of the child's life spent in parental custody, the quality of interaction between parent and child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) In determining whether the exception applies, courts must balance on a case-by-case basis the quality of the natural parent-child relationship against the security and sense of belonging a new adoptive family would provide. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "Although the statute does not specify the type of relationship necessary to derail termination of parental rights, case law has required more than 'frequent and loving contact.' [Citation.]" (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424.)

On this record, mother has shown frequent and loving contact with E. However, she has not shown that the existence of her relationship with E. is sufficient to outweigh her need for a stable, safe and permanent home. While E. loves mother, and recognizes that she is her mother, there is evidence that mother failed to demonstrate her ability to provide E. with a stable, safe and permanent home.

In arguing that the parental benefit exception applies in this case, mother relies in large part on In re S.B. (2008) 164 Cal.App.4th, 289 (S. B.). Mother stresses that like S.B., E. was a toddler when the court removed her from parental care, and that S.B.'s father visited her regularly, just as mother visited E. In S. B., however, there is no suggestion that S.B.'s father had failed to protect her from an abusive adult before or after she became a dependent ward, or ever, or that he failed to comply with his case plan. (Id. at pp. 294-298.) In contrast, the court made E. a dependent ward because boyfriend injured her while mother left her in his care. Mother subsequently failed to comply fully with her case plan that obligated her to protect E. from abusive adults, to keep boyfriend away from E., and to maintain a suitable home free from illegal substances. After E. became a dependent ward, boyfriend was in mother's home while E. lived there. Mother also permitted M., her adult male friend with a known record of substance abuse and domestic violence, to visit her home frequently while E. lived there. Further, the court found that mother had repeatedly provided another person's urine for her mandatory drug tests. Substantial evidence supports the court's finding that mother failed to establish that the parental relationship exception barred the termination of her parental rights.

The judgment (order) is affirmed.

We concur, GILBERT, P.J., YEGAN, J.


Summaries of

In re E. S.

California Court of Appeals, Second District, Sixth Division
Apr 16, 2009
No. B210566 (Cal. Ct. App. Apr. 16, 2009)
Case details for

In re E. S.

Case Details

Full title:In re E. S., a Person Coming Under the Juvenile Court Law. SANTA BARBARA…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Apr 16, 2009

Citations

No. B210566 (Cal. Ct. App. Apr. 16, 2009)