Opinion
F064106
06-12-2012
In re JESUS P., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. LUCY M., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Paul E. Blackhurst, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD125208-00)
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Paul E. Blackhurst, Deputy County Counsel, for Plaintiff and Respondent.
Lucy M. (mother) appeals the termination of her parental rights over her son Jesus P., contending that the juvenile court erred in failing to apply the parent-child relationship exception to the statutory preference for adoption. We find that substantial evidence supports the juvenile court's findings and that the court did not abuse its discretion in declining to apply the exception, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 15, 2010, the Kern County Department of Human Services (the Department) received a referral that mother and one-week old Jesus were living in a filthy motel room and that mother had a history of substance abuse. A social worker met with mother, who said that her sister or sister-in-law had picked up her older child, Kayla, that morning, but mother had no contact information on how to reach Kayla. Mother admitted a history of depression and drug use, but claimed she had been clean for about two years and agreed to drug test. The social worker returned later with a stroller and bassinet for the baby and encouraged mother to get into a relapse prevention program.
On September 24, 2010, the social worker met with mother to discuss her positive drug test. Mother admitted smoking a joint and using methamphetamine the week before. She admitted using marijuana a month prior, but denied having used during her pregnancy, although she would have been pregnant at the time. She eventually admitted methamphetamine use the day before. Mother did not know where Kayla was and still did not have any contact information for her.
Mother agreed to have Jesus placed with her cousin, although the cousin was concerned about Kayla's whereabouts. The cousin called the social worker later in the day stating that she could no longer provide care for Jesus. According to the cousin, mother called her endlessly, wanting Jesus returned so she could get cash aid. Mother eventually admitted that Kayla, age one, had never lived with her, although she received cash aid and food stamps for her.
At three weeks of age, Jesus was placed in protective custody. A Welfare and Institutions Code section 300, subdivision (b) petition filed September 30, 2010, alleged that Jesus came within the jurisdiction of the juvenile court as a result of mother's continuous abuse of marijuana and methamphetamine and her untreated mental illness.
All further statutory references are to the Welfare and Institutions Code.
The petition made no mention of Kayla, although later notations in the record state that Kayla was with a caregiver who was in the process of obtaining legal guardianship of her.
At the detention hearing on October 1, 2010, mother denied the allegations, but submitted on the issue of continued detention. The juvenile court detained Jesus, but granted mother weekly supervised visits. Mediation and jurisdiction/disposition were scheduled.
The social worker's report submitted in anticipation of mediation stated that mother had been a dependent child herself and emancipated from foster care. She had used methamphetamine since she was 14 years old and marijuana since she was 18 years old. The social worker initially had difficulty making contact with mother to schedule a visit. The first visit was finally held on November 5, 2010.
Mother failed to appear for mediation on November 15, 2010. She tested positive for methamphetamine and THC the following day.
Mother was present at the jurisdiction hearing on November 19, 2010. She waived her right to trial and submitted the matter on the social worker's report.
The report prepared in anticipation of the disposition hearing stated that mother's visits with Jesus were positive. Mother missed drug testing on December 9 and 10, but tested negative on December 28, 2010, and January 11, 2011. Mother was terminated from her substance abuse program on January 14, 2011, after she missed six of nine counseling sessions.
At the disposition hearing on January 24, 2011, mother told the juvenile court she was in a sober living facility. She submitted the matter on the social worker's report. The juvenile court ordered Jesus removed from mother's custody and ordered family reunification services. Mother was advised that, due to Jesus's young age, services would be limited to six months. Mother was ordered to participate in counseling for child neglect, mental illness, parenting and substance abuse, and to submit to random drug testing.
The report prepared in anticipation of the section 366.21, subdivision (e) six-month status review hearing stated that mother had completed an 11-week parenting class. She was diagnosed with "Adjustment Disorder with Mixed Anxiety and Depressed Mood" and had enrolled in a mental health substance abuse program, but had attended only three of nine sessions. Her progress in the program was poor, her prognosis guarded, and she was then discharged from the program on June 21, 2011, due to poor attendance. When the counselor spoke with mother about the program, mother had said she could not attend because she had "other things" to attend to.
Mother's drug tests showed a pattern of negative tests interspersed with "presumed positive" tests as a result of her failure to test. Before mother was discharged from substance abuse counseling in June of 2011, she had already entered other substance abuse programs: one on December 27, 2010, but discharged January 14, 2011, and another on January 20, 2011, but discharged on February 4, 2011. Mother's visits with Jesus had been "appropriate and engaging with no relevant issues noted."
At the August 12, 2011, six-month review hearing, mother requested additional services, due to the fact that she was about to deliver another baby the following month. She claimed she had an appointment on August 16, 2011, to once again enter drug counseling. The juvenile court noted that it was only 48 days shy of one year from the initial detention and mother had already received 10 and a half months of services. The juvenile court determined that mother had made only "minimal progress" toward alleviating or mitigating the cause for Jesus's out of home care and terminated reunification services for mother. A section 366.26 termination hearing was set.
The social worker's report prepared in anticipation of the section 366.26 hearing stated that Jesus had been moved on September 30, 2011, to a certified foster home committed to adopting him. Although mother's visits with Jesus had been fairly consistent in that she had attended 38 of 43 possible visits, she had missed three visits in the last month. She was usually attentive and loving toward Jesus during those visits but, at times, became easily frustrated and raised her voice at him.
The adoption social worker opined that mother interacted well with Jesus during visits, but that he was unable to differentiate between mother and other visitors due to his young age. The social worker opined that termination of mother's parental rights would not adversely affect Jesus. The social worker noted that Jesus was a good candidate for adoption, despite slight mental development issues, and recommended termination of parental rights.
At the December 12, 2011, section 366.26 hearing, mother did not present any evidence, but argued that the quality and frequency of her visits was exceptional and that termination of her parental rights would not be in Jesus's best interest.
The juvenile court did not find the "parent/child" benefit exception applicable, but found, by clear and convincing evidence, that Jesus was likely to be adopted. The juvenile court ordered mother's parental rights terminated.
Mother contests the termination of her parental rights.
DISCUSSION
At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child. Where there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) To implement adoption as the permanent plan, the juvenile court must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) Then, in the absence of evidence that termination of parental rights would be detrimental to the child under statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the juvenile court "shall terminate parental rights" (§ 366.26, subd. (c)(1)). Here, the juvenile court found Jesus adoptable, and, finding no detriment to him, terminated mother's parental rights. Mother appeals the termination, asserting that the parent-child relationship exception to termination of parental rights was applicable here. We disagree and affirm.
Section 366.26 provides an exception to the general legislative preference for adoption when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he parents have 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 "benefit" prong of the exception requires the parent to prove his or her relationship with the child "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 Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Derek W., supra, 73 Cal.App.4th at p. 826 ["parent has the burden to show that the statutory exception applies"].) "No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy "a parental role" in the child's life.' [Citations.]" (In re K.P. (2012) 203 Cal.App.4th 614, 621; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The relationship that gives rise to this exception to the statutory preference for adoption "'characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.' [Citation.]" (In re K.P., supra, at p. 621.) In addition, "[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." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
We are aware of the split of authority concerning the standard of review in this context. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 and In re K.P., supra, 203 Cal.App.4th at pp. 621-622 [hybrid combination of substantial evidence and abuse of discretion standards]; In re Autumn H., supra, 27 Cal.App.4th at p. 576 [substantial evidence test - "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order"]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion test].) The parties here urge this court to use the test enunciated in In re Bailey J., supra, at page 1314 and In re K.P., supra, at pages 621-622, in which the substantial evidence test is applied to the determination whether there is a beneficial parent/child relationship and the abuse of discretion standard is applied to the final part of the exception analysis - if there is a beneficial relationship, does that relationship constitute "'a compelling reason for determining that termination would be detrimental to the child.'" (In re Bailey J., supra, at p. 1314.) Our conclusion in this case would be the same under any of these standards.
Here, as to the parent-child relationship, there was evidence before the juvenile court that mother had maintained visitation with Jesus and that the visits were appropriate. But mother was required to show more than frequent and loving contact or pleasant visits with Jesus. "[C]ontact between parent and child will always 'confer some incidental benefit to the child," but that is insufficient to meet the standard." (In re C.F. (2011) 193 Cal.App.4th 549, 559, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The beneficial parent-child relationship also required mother to show that she shared a relationship with Jesus that "promote[d] the well-being of the child to such a degree as to out-weigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, at p. 575.)
In determining whether the beneficial parent-child relationship exception applies, the court takes into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between the parent and child, and the child's particular needs ...." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) "[T]he 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." (Id. at p. 575.)
It is important to recall that at this point in the proceedings at which the juvenile court makes this determination, the child's interest in a permanent home is paramount. It is an extraordinary case where preservation of a parent's rights at this juncture would prevail over the Legislature's preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This is not one of those extraordinary cases.
There was substantial evidence that Jesus would benefit more from the permanency of adoption than he would from maintaining a legal relationship with mother. Although mother may have been appropriate and pleasant during visits with Jesus, there was nothing to indicate that Jesus had a substantial, positive emotional attachment to mother, or that he would be greatly harmed if this relationship was severed. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
In an attempt to establish the existence of a beneficial relationship, mother points to the social worker's observation that mother's visits with Jesus were "of good quality in which the mother tended to the child's needs and showed affection towards him." Mother argues that, while the social worker did not think Jesus could differentiate between mother and other caregivers, Jesus was too young to do so. She also argues that Jesus had only been in his current foster parents' care for two months at the time of the section 366.26 hearing.
While mother's visits with Jesus might have been consistent and appropriate, there was no evidence that mother occupied a parental role in Jesus' life. Jesus was only three weeks old when he was removed from mother's care, and during those three weeks, mother was actively abusing controlled substances. He was 15 months old at the time of the section 366.26 hearing. Mother presented no evidence at that hearing that she had her substance abuse or mental health issues under control. Jesus was in a certified foster home committed to adopting him and, according to the adoption social worker, was a good candidate for adoption if the current caretakers could not adopt him. This is substantial evidence to support the juvenile court's finding that the benefit of Jesus's existing relationship with mother does not outweigh the well-being Jesus would gain in a permanent home with new, adoptive parents. In addition, we cannot say that the juvenile court abused its discretion when it concluded that any detrimental impact from severance of the limited relationship Jesus had with mother was outweighed by the benefits to Jesus that would come from adoption.
DISPOSITION
The order terminating mother's parental rights is affirmed.