Opinion
F087811
10-18-2024
In re S.O. et al., Persons Coming Under the Juvenile Court Law. v. M.M. et al., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant M.M. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant A.O. Margo A. Raison, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Kern County. Super. Ct. Nos. JD144315-00, JD144316-00 Susan M. Gill, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant M.M.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant A.O.
Margo A. Raison, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Appellants M.M. (mother) and A.O. (father) are the parents of Sa.O. and Su.O. (collectively, the children), who are the subjects of this dependency case. Mother and father challenge the juvenile court's orders issued at a contested Welfare and Institutions Code section 366.26 hearing that resulted in mother and father's parental rights being terminated. Both parents contend the court erred when it declined to apply the beneficial parent-child relationship exception.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2023, the Kern County Department of Human Services (department) initiated the present dependency proceedings after receiving a referral alleging both mother and Su.O. tested positive for opiates at the time of Su.O.'s birth. The children were not initially taken into protective custody. An original petition was filed for each of the children alleging that they were described by section 300, subdivisions (b) and (j). The petitions alleged the children were at substantial risk of suffering serious physical harm due to mother's substance abuse and past neglect of the children's older sibling, N.O.
Mother and father were provided family reunification services for N.O. In 2013, but both parents failed to reunify with N.O. The children's paternal grandmother was appointed as the legal guardian of N.O. at a section 366.26 hearing in 2016.
At the initial hearing on the petitions, mother and father were both present and appointed counsel. The hearing was continued at the request of the children's counsel, and father was found to be the presumed father of both children. The juvenile court indicated that it was considering ordering the children detained from mother if she failed to provide a negative drug test. A combined jurisdiction and disposition hearing was set for April 18, 2023, at the continued hearing. The children were allowed to remain in the parents' home pending the next hearing, but the court's decision was dependent on mother's drug testing.
On March 21, 2023, the children were taken into protective custody pursuant to a warrant due to the positive drug test results of both parents. An amended petition for each of the children alleged that both parents tested positive for morphine in February 2023. The juvenile court ordered the children detained from mother and father's custody at the March 23, 2023 detention hearing. Supervised visitation was ordered to occur twice per week for two hours between the parents and children.
The department's jurisdiction report recommended that the allegations in the amended petitions be found true. The juvenile court found all of the allegations of the amended petitions true and continued the disposition hearing to June 23, 2023. The department's disposition report, dated June 23, 2023, recommended that both parents be denied services pursuant to section 361.5, subdivision (b)(10), and the setting of a section 366.26 hearing. The children were placed together in a resource family home, and the care provider noted that Sa.O. constantly cried for his parents after the removal. The social worker explained that it was normal for children to cry for their parents after removal. Both parents failed to submit to additional drug testing after the children's removal.
Mother was participating in substance abuse counseling, but she was making limited progress. Father was dropped from his substance abuse program due to lack of attendance. Both parents attended their supervised visits regularly, but there were concerns regarding their parenting skills. Sa.O., at three years of age, had frequent tantrums during visits, and the parents often failed to redirect him. There were also concerns that four-month-old Su.O. was not being provided appropriate food for his age. During the visits, the parents engaged with the children through play, and they shared hugs and kisses at the beginning and end of visits. In March and April 2023, Sa.O. would sometimes cry because he did not want the visit to end. On April 5, 2023, the parents requested for the paternal grandmother and N.O. to attend a portion of their supervised visits. The paternal grandmother began helping the parents organize and clean at the end of visits, and N.O. played with the children.
The contested disposition hearing was held on July 27, 2023, with both mother and father present. All parties accepted an offer of proof to the proposed testimony of each parent. After argument from counsel, the juvenile court ordered the children removed from the parents' custody, and it denied family reunification services to both parents pursuant to section 361.5, subdivision (b)(10). A section 366.26 hearing was set for November 13, 2023, and the parents' visitation remained supervised at twice per week for two hours.
Selection and Implementation Hearing
The section 366.26 report, dated November 3, 2023, recommended that mother and father's parental rights be terminated and a plan of adoption be ordered. The children remained placed in a resource family home, and the maternal grandfather was recently approved for placement. However, any plans to transition were on hold due to an incident that occurred while the children were on a weekend visit with the grandfather. Accordingly, the report did not include an assessment of a prospective adoptive parent. The children were found to have developmental delays, but they were otherwise healthy. A referral was made to the Kern Regional Center for intervention services for both children.
Since March 23, 2023, the parents had approximately 50 supervised visits with the children. At a supervised visit in June 2023, mother played with the children, and father brought food from a fast food restaurant for Sa.O. Su.O. fell asleep in mother's arms, and father encouraged Sa.O. while he played with toys. Both parents were observed to be attentive to the children throughout the entire visit. During a phone call with the social worker in June 2023, mother noted that she was surprised at how well Sa.O. gravitated towards his care provider because he did not usually gravitate towards people. Both parents explained that they did not want Sa.O. to be moved to a new placement because he appeared comfortable with his current care provider.
In July and August 2023, the parents, paternal grandmother, N.O., and the children shared food and played together during their supervised visits. At a September 15, 2023 visit, father put on a movie, and Su.O. was fed formula while the family watched the movie. Sa.O. and mother played with some of the toys, and they ate cookies together.
On September 26, 2023, the adoption social worker observed a visit with the parents, children, paternal grandmother, and N.O. Sa.O. hit mother with his foot and pushed her away when she tried to talk to him about school. The family went outside and played together, and Sa.O. appeared to be in a better mood toward the end of the visit. The visitation supervisor noted that mother and father consistently explained to Sa.O. that hitting was not nice. The adoption social worker also observed a visit on October 3, 2023, where mother's interactions were found to be appropriate. Mother attended to the children's needs, and she fed and interacted with them.
The report noted that mother and father consistently visited with the children during their continued removal. However, the department did not believe that it would be detrimental to terminate the parental rights of mother and father because the children had been out of their parents' care for approximately seven months. Furthermore, Su.O. had spent all but two months of his life in out-of-home placement.
The initial section 366.26 hearing was continued for the department to conduct a more thorough analysis of the parent-child relationship pursuant to the Supreme Court's decision in the case of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). In a supplemental report, dated March 15, 2024, the department detailed the process leading to an administrative grievance hearing that resulted in the children being placed with the maternal grandfather and his wife on January 20, 2024.
Mother and father had 15 opportunities to visit the children since the placement change, but six of the visits were cancelled due to either illness, bad weather, or an Indian tribe event. The parents brought food, toys, and essential items for each visit. During their recent visits, both parents were observed to maintain a positive interaction with the children. The children arrived at visits with a smile and hugged both parents to begin the visit. Both children frequently left visitations without any noted distress or emotional response.
Sa.O., at four years of age, referred to his current care providers and parents as "mom and dad," and he was becoming conflicted over his relationships with his biological parents and current care providers. At the conclusion of some visits, Sa.O. would begin to cry and indicate that he wanted to go home with mother and father. However, during comfort calls before a visitation day, Sa.O. did not desire to speak with his parents. He did not display any behaviors or issues after visitations, and he did not ask about his parents during the week.
The social worker concluded that the children had pleasant visiting relationships with the parents, but it was the department's opinion that the benefits of a permanent adoptive home outweighed the detriment that termination of parental rights might bring. The relative care providers were committed to adopting the children, and it would not be difficult to find an alternative adoptive home for the children.
A contested section 366.26 hearing was held on March 19, 2024, and both mother and father were present. Mother testified about her relationship with the children. She testified that she attended the majority of her visits, and the children appeared excited when she arrived to visit. Both parents held the children in their arms or laps during visits, and mother claimed Sa.O. became upset when they tried to set him down. Her supervised visits were described as "pretty good, except for a few bumps here and there ...."
Mother testified that her last use of drugs or alcohol was December 27, 2023. She was attending a substance abuse program to help maintain her sobriety. Mother was concerned about the children's current placement with the maternal grandfather because he would not speak to her. The relationship between mother and her father had been a struggle for a long time. She also believed that the maternal grandfather had been "very aggressive" since she was a child.
Counsel for both parents then argued that the beneficial parent-child relationship exception to adoption applied. The children's counsel acknowledged that both parents satisfied the element of regular visitation, but he asserted that neither parent had established the exception pursuant to the additional elements set forth in Caden C. The department's counsel agreed with the children's counsel's position, and she argued that the parents had not proven that an exception to adoption was applicable.
After hearing argument from all counsel, the juvenile court proceeded to its ruling on the beneficial relationship exception by acknowledging that both parents visited regularly. The court found that there was a substantial, positive emotional attachment between Sa.O. and the parents despite their substance abuse problems. However, it was unable to find that such a relationship existed between the parents and Su.O. due to the limited time that he was in the parents' custody.
The juvenile court continued to examine the third prong of the parent-child relationship exception for each of the children. It did not believe there was any question that termination of parental rights would not be detrimental to Su.O. based on the lack of a relationship. As to Sa.O., the court concluded its analysis regarding the detriment of severing the parental relationship against the benefits of an adoptive home as follows:
"I do note that the evidence shows that, while [Sa.O.] has cried after visits and has said he wants to go home with his parents, when they make comfort calls to him, he doesn't want to talk to them. So whatever's going on at the visits doesn't seem to be carrying over to the time when he's not with them. And as [children's counsel] pointed out, he's not remonstrating now at the end of the visits.
"Clearly, I'm not looking at whether the parents are able to provide a home for the children. I'm not comparing the parents' parenting abilities with the adoptive-potential adoptive parent's abilities. I'm just looking at
how [Sa.O.] would be affected by losing the relationship with his parents. And the evidence supports a finding that [Sa.O.] will be okay. And with that in mind, the adoption confers a substantial benefit on the child."
The juvenile court proceeded to follow the department's recommendation and terminated the parental rights of mother and father and selected a permanent plan of adoption for the children. Both parents filed timely notices of appeal.
DISCUSSION
The parents contend that the juvenile court erred when it did not apply the beneficial parent-child relationship exception to adoption. Father contends that remand is required to allow the court to "engage in the subtle and case-specific analysis" to determine whether the exception was applicable. Mother's reply brief joins in father's argument, and she argues that termination of parental rights was not in the best interests of the children.
A . Legal Principles
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
A parent claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Thus, the parent must prove three elements in order to prevail under the beneficial relationship exception: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631.)
The first element of the beneficial relationship determination asks the "straightforward" question of whether the parent visited consistently, considering the extent permitted by court orders. (Caden C., supra, 11 Cal.5th at p. 632.) The focus is on the best interest of the child as opposed to punishing or rewarding parents for good behavior in maintaining contact. (Ibid.)
The second element of the exception asks whether the child would benefit from continuing the relationship. (Caden C., supra, 11 Cal.5th at p. 632.) The parent-child relationship "may be shaped by a slew of factors, such as '[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 parent and child, and the child's particular needs.'" (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The juvenile court's focus should again be on the child, and it "must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Caden C., at p. 632.)
When considering the third element, courts must determine "how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Caden C., supra, 11 Cal.5th at p. 633.) Potential negative effects from severance of the relationship might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression." (Ibid.) An adoptive home might provide a new source of stability that alleviates emotional instability and preoccupation leading to those problems, making the loss "not, at least on balance, detrimental." (Ibid.) Under this element, the court is again guided by the child's best interest, but in a "specific way: it decides whether the harm of severing the relationship outweighs 'the security and the sense of belonging a new family would confer.'" (Ibid.)
In Caden C., the Court of Appeal held "that because the parent continued to struggle with substance abuse and mental health issues and because of the risks of foster care and benefits of the potential adoptive home, no reasonable court could find the child's relationship with his parent outweighed the benefits of adoption." (Caden C., supra, 11 Cal.5th at pp. 625-626.) Rejecting that conclusion, our Supreme Court found "[t]he Court of Appeal did not explain how the parent's struggles related to the specific elements of the statutory exception: the importance of the child's relationship with the parent or the detriment of losing that relationship." (Id. at p. 626.) A parent's struggles with issues that led to dependency were determined to be relevant only to the extent they inform whether the child would "benefit from continuing the relationship and be harmed, on balance, by losing it." (Id. at p. 638.)
B . Standard of Review
Appellate courts review a juvenile court's ruling on the application of the beneficial parent-child relationship exception using a "hybrid" standard. (Caden C., supra, 11 Cal.5th at p. 641.) The substantial evidence standard applies to the first two elements of regular visitation and existence of a beneficial relationship. (Id. at pp. 639-640.) The court's decision as to the third element-whether termination of parental rights would be detrimental to the child-is reviewed for an abuse of discretion. (Id. at p. 640.) "Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.)
The standard of review of a court's determination that a parent did not meet his or her burden to prove an exception to termination of parental rights is "whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (I.W., at p. 1528.)
C . Analysis
First, father asserts that a bonding study was necessary to properly assess the exception despite the lack of such a request in the juvenile court. In support of his argument, father relies on In re M.G. (2022) 80 Cal.App.5th 836, but M.G. is inapposite and does not assist father. In M.G., the appellate court reversed an order terminating parental rights and remanded the matter for a new hearing where the parents had requested a bonding study, which the court relied on to determine whether the beneficial parent-child relationship exception applied. The appellate court concluded the bonding study was "inexplicably terse and analytically uninformative," given some of the particular circumstances of the case, and that it engaged in improper comparison between the parents and the child's current caregivers and failed to evaluate the emotional bond between the parents and the child. (Id. at pp. 845, 849-851.) M.G. in no way stands for the proposition that father suggests it does-that we must direct the juvenile court to order a bonding study where none was requested below.
Next, father also contends the juvenile court failed to apply the principles set forth in Caden C. We reject father's contention. To support his contention that the matter must be remanded for consideration of the issues in light of Caden C., father relies on cases where parents appealed from orders terminating parental rights made before Caden C. was decided, which are inapposite and unpersuasive given the procedural stance of the present case. (In re J.D. (2021) 70 Cal.App.5th 833; In re B.D. (2021) 66 Cal.App.5th 1218.) The court here was well aware of Caden C., demonstrated by the fact the hearing was conducted more than two years after it was decided, children's counsel cited the decision in its argument, and that the court accurately set forth the law in its ruling. Father has established no basis to remand the matter for the court to conduct further analysis.
Finally, in support of their contention that the juvenile court erred in failing to apply the exception, the parents cite to evidence that they had positive and affectionate interactions with the children during visits. While the parents consistently visited the children, satisfying the first prong of the exception, they failed to identify any evidence that would compel a finding that termination of their parental rights would cause the children great harm. The evidence before the court established that the children appeared to enjoy the supervised visits that occurred with their parents twice per week for a year after their removal. However, evidence that the children had pleasant visits with their parents is not enough to preserve parental rights. (See In re Derek W. (1999) 73 Cal.App.4th 823, 827 ["The parent must do more than demonstrate 'frequent and loving contact[,]' [citation] an emotional bond with the child, or that parent and child find their visits pleasant"].)
The parents also cite to evidence that Sa.O. became upset at the conclusion of visits during the beginning of the case. Over the course of the proceedings, mother and father's visitation with the children never progressed beyond supervised. The department's recent report indicated that the children had no difficulty separating from the parents at the end of visits. Furthermore, there was no evidence that the children were suffering any type of emotional harm as a result of the limited interaction with the parents over the past year in out-of-home placement. In fact, the department's report indicated that Sa.O. did not wish to speak to his parents during comfort calls, and he did not ask about his parents in between visitations.
At such young ages, the children needed permanency and stability, which the relative care providers were willing and able to provide. The limited relationship mother and father were able to maintain through supervised visits in the year that the children spent in out-of-home care is not that extraordinary case where preservation of parental rights outweighs the preference for adoption. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166 ["' "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement"' "].) Based on the present record, we cannot find that the juvenile court erred in declining to apply the beneficial parent-child relationship exception.
In sum, the evidence in the record weighed in favor of the preferred permanency option of adoption. Given the fact that the children are very young, showed no distress when separating from the parents at recent visits, and were already comfortable with their relative care providers, we find the juvenile court did not abuse its discretion. Under these circumstances, the court's ruling is entitled to a presumption of correctness, and remand is unwarranted. (Caden C., supra, 11 Cal.5th at p. 640.) Therefore, the court did not err in declining to apply the beneficial parent-child relationship exception, and its orders terminating mother and father's parental rights were proper.
DISPOSITION
The juvenile court's orders are affirmed.
[*]Before Hill, P. J., Franson, J. and Pena, J.