Opinion
B335078
09-20-2024
In re M.R., a Person Coming Under the Juvenile Court Law. v. E.F., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 18CCJP03352A Lina L. Sun, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
GRIMES, Acting P. J.
E.F. (mother) appeals from the juvenile court's order terminating her parental rights to her minor son (M.R.) at the permanency planning hearing and ordering adoption as the permanent plan. (Welf. &Inst. Code, § 366.26; all undesignated section references are to the Welfare and Institutions Code.) Mother contends the juvenile court erred in concluding the parental-benefit exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
M.R. was born in April 2018. At the time of his birth, mother already had an extensive history with the Los Angeles County Department of Children and Family Services (Department) involving three other children who were half sisters to M.R. The Department filed this dependency proceeding pursuant to section 300, subdivisions (b), (d) and (j) based on allegations that mother failed to protect M.R.'s siblings from sexual abuse by a male adult, and M.R. was at substantial risk of such abuse.
The court initially released M.R. to the home of mother, who apparently was not living with the offending male. But less than two months later in July 2018, the Department reported, in an emergency filing, that mother experienced a psychotic episode requiring a psychiatric hospital hold. Mother also tested positive for methamphetamines. M.R. was taken into protective custody, placed in shelter care and eventually placed in the home of a foster parent. The Department filed an amended section 300 petition adding allegations regarding mother's mental health issues and substance abuse.
Mother was granted reunification services and monitored visitation with M.R. twice a week for two hours at a time (later changed to four hours once a week as an accommodation to mother). The Department reported that over the next year and a half, mother continued to struggle with her mental health and substance abuse challenges and made only minimal to partial progress on her reunification plan. However, mother did maintain fairly consistent visitation with M.R. In early 2020, mother's monitored four-hour weekly visits were liberalized to unmonitored. M.R., who had been diagnosed with developmental and language delays, received Regional Center services and wraparound services and therapy.
In April 2020, M.R. was moved to the foster home of Mr. and Mrs. P., who remain his current caregivers and prospective adoptive parents. (Mrs. P. is sometimes referred to in the record as Mrs. M.) The social worker reported that the foster parents provide "excellent care and supervision" of M.R. and he "has thrived significantly."
In September 2020, the juvenile court found that mother had "not demonstrated the capacity and ability both to complete the objectives of the treatment plan and to provide for the minor's safety, protection, physical and emotional well-being, and special needs." The court terminated mother's reunification services.
Thereafter, the court ordered the Department to provide updates on permanency planning issues, mother's visitation, and the existence of any parental bond or relationship between mother and M.R. Because mother had unmonitored visits with M.R., the court ordered the Department to have a social worker observe the visitation periods to assist in assessing the interaction between mother and M.R.
In the section 366.26 report and follow-up reports, the Department noted that Mrs. P. said she and her husband wanted to adopt M.R. because "they ha[d] fallen in love with him as if he were their own child." Mr. and Mrs. P. were attentive to M.R.'s special needs, advocated for services to improve his development and were committed to adopting him. M.R. seemed happy and comfortable in their presence and he appeared bonded to them and their extended family. Mr. and Mrs. P.'s adult daughters were supportive of adoption and have a good relationship with M.R.
The Department reported that mother had maintained fairly regular visitation with M.R., consisting of four-hour visits in the park on Saturdays. Mrs. P. told the social worker that, in between the weekly visits, mother did not call to speak with M.R. or to ask her about how M.R. was doing. M.R. generally seemed comfortable in mother's presence, but did not ask for her during the week and did not display any obvious signs of affection or emotional attachment to mother. Sometimes M.R. resisted visiting with mother and would cling to Mrs. P., seeming unwilling to leave her. Mrs. P. expressed concern that mother, despite being asked not to do so, continued to give M.R. sodas, candy and fried food which upset his stomach, and mother had to be reminded to change his diaper, often returning him in a soiled diaper, with his clothes smelling of cigarettes.
The bulk of mother's visitation time with M.R. consisted of leaving him in his stroller and letting him look at her cell phone or iPad. Mother did not make an effort to engage in any activities with him or spend time talking or playing with him. M.R. usually did not appear receptive to any efforts by mother at guidance or redirection and mother was unable to handle M.R.'s tantrums or expressions of frustration. M.R. did not act sad or otherwise have difficulty ending his visits with mother.
The Department reported that "neither the child nor [mother] exhibit any strong intimate bonds." M.R. "appears detached and indifferent towards mother during visits." The social worker said that because of M.R.'s young age and language delays, it was not possible for him to verbally express how he feels about mother. In contrast, M.R. was observed readily showing affection to Mr. and Mrs. P., running to them when they arrived to pick him up from visits with mother. M.R. "displays joy" in the presence of Mr. and Mrs. P. and he calls them "ma" and "pa."
Rosa Arevalo, a child and family specialist, met with M.R. to attempt to interview him about mother and see if he could express whether he wanted to continue seeing his mother. Because M.R. is on the autism spectrum and has limited language skills, M.R. was not able to tell Ms. Arevalo how he felt about visiting with mother or whether he wanted those visits to continue.
The Department recommended the termination of mother's parental rights, emphasizing that five-year-old M.R. had not been in the care and custody of mother since he was three months old, that neither mother nor M.R. displayed any significant or strong emotional bond to each other, and the termination of their relationship was not likely to cause any emotional instability or problems for M.R. who was developing steadily in the home of his foster parents who were attentive to his special needs.
The section 366.26 hearing was held on January 19, 2024. Counsel for M.R. and the Department joined in asking the court to terminate mother's parental rights and free M.R. for adoption. Mother argued that her parental rights should not be terminated because of the parental-benefit exception. (§ 366.26, subd. (c)(1)(B)(i).)
The juvenile court found that mother had maintained regular and consistent visitation with M.R. but had failed to prove the other two required elements of the parental-benefit exception. In so ruling, the court acknowledged mother made consistent weekly visits but maintained only a role similar to a friendly babysitter with M.R. and nothing more. The court found that any benefit M.R. received from his relationship with mother is "substantially outweighed by the physical and emotional benefit" he will receive from permanency and stability in being adopted. The court terminated mother's parental rights to M.R., ordering adoption as the permanent plan, with Mr. and Mrs. P. identified as the prospective adoptive parents.
This appeal followed.
DISCUSSION
1. Applicable Law
Our Supreme Court has clarified what a parent must demonstrate in asserting the parental-benefit exception to adoption. (In re Caden C. (2021) 11 Cal.5th 614 (Caden C.).)
Caden C. emphasized that the purpose of the section 366.26 permanency planning hearing is to select the most appropriate permanent plan for the minor child. It "is decidedly not whether the parent may resume custody of the child." (Caden C., supra, 11 Cal.5th at p. 630, italics added.) "Indeed, when the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved." (Ibid.) The court's focus is on the best interests of the child and what permanent plan best serves those interests. (Id. at p. 632.)
The statutory scheme identifies adoption as the preferred placement option and is considered" 'the norm.'" (Caden C., supra, 11 Cal.5th at p. 631.) However, section 366.26 enumerates several exceptions, including the parental-benefit exception, which provide a basis for the juvenile court" 'in exceptional circumstances'" to choose an option other than adoption, such as legal guardianship. (Caden C., at p. 631; see also § 366.26, subd. (c)(1).)
Caden C. instructs that a "parent asserting the parental[-] benefit exception must show, by a preponderance of the evidence, three things. The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship. And the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Caden C., supra, 11 Cal.5th at pp. 636-637.)
Caden C. also clarified the appropriate standard of review when a juvenile court's ruling on the parental-benefit exception is challenged on appeal. (Caden C., supra, 11 Cal.5th at pp. 629, 639-640.) The first two elements of the exception are governed by the substantial evidence test. "The determination that the parent has visited and maintained contact with the child 'consistently,' taking into account 'the extent permitted by the court's orders' [citation] is essentially a factual determination. It's likewise essentially a factual determination whether the relationship is such that the child would benefit from continuing it." (Id. at pp. 639-640.) "The third element-whether termination of parental rights would be detrimental to the child-is somewhat different." (Id. at p. 640.) While the court must carefully assess the factual underpinnings of this element, "the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Ibid.)
2. Analysis
The juvenile court here found that mother had not established the second and third elements of the parental-benefit exception. Substantial evidence supports the juvenile court's exercise of discretion in reaching that conclusion.
a. Beneficial relationship
A number of factors are relevant to the assessment of whether the child will benefit from a continuation of the parental relationship, "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.'" (Caden C., supra, 11 Cal.5th at p. 632.) All those factors here support the juvenile court's finding of no substantial, beneficial relationship.
M.R. was removed from mother's care before he was three months old and never returned to her custody. When the juvenile court terminated mother's rights, M.R. had been out of her custody for over five years. M.R. was autistic and had other special needs, and mother failed to show any interest in learning about his disabilities or assisting in M.R.'s education and development. The court pointed out this fact as likely impacting mother's ability to develop a stronger relationship with him. Mother's inability to focus on improving her relationship with M.R. may have been the result, at least in part, of her own continuing personal struggles. (Caden C., supra, 11 Cal.5th at p. 638 [a parent's continued struggles with the reasons that led to dependency "speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent"].)
Mother showed no initiative to engage with M.R. during visits. Instead, mother spent her visitation with M.R. sitting passively nearby while he played with her cell phone or iPad. There was no evidence of any emotional attachment or bond between mother and M.R. Social workers even described M.R. as being emotionally detached from mother.
b. Detriment from severance
Caden C. made clear that in assessing detriment, the juvenile court's role is not about comparing the parent's attributes with that of the custodial caregiver. (Caden C., supra, 11 Cal.5th at p. 634.) Mother argues the juvenile court did exactly that in rationalizing why it was terminating mother's parental rights. We do not agree.
The juvenile court found mother showed a lack of interest in learning about and addressing M.R.'s special needs and that this likely hampered mother being able to develop a more important role in her child's life. The court also pointed to the observations of the social workers who indicated that mother occupied a role similar to a babysitter and nothing more. The court found Mrs. P. had an entirely different relationship with M.R. The court's findings did not comprise impermissible comparisons of mother with Mrs. P. These were relevant considerations to assessing whether the termination of mother's relationship with M.R. would be detrimental to M.R.
Caden C. explained that the assessment of detriment is a "subtle, case-specific inquiry" that requires the juvenile court to determine whether "the benefit of placement in a new, adoptive home outweigh[s] 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]' [Citation.] When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent." (Caden C., supra, 11 Cal.5th at pp. 633-634; see also In re A.L. (2022) 73 Cal.App.5th 1131, 1157 ["strength and quality of the parent's relationship with the child, including whether that parent has a parental role, is a relevant consideration to the court's detriment finding"].)
Mother also argues that M.R. had developed a routine of seeing her at their weekly visits in the park, and that children like M.R. with developmental disabilities are dependent on routine. Mother says he will surely suffer detriment due to the disruption in his regular routine that a termination of her parental rights will cause. Nothing in the record supports these contentions.
There was no evidence M.R. had any trouble leaving or disengaging from mother when their visits ended, nor any evidence he missed her in between visits. As already explained above, there was no evidence of a "significant, positive, emotional relationship" or bond between mother and M.R. The juvenile court did not abuse its discretion in concluding that the benefits to M.R. of being adopted would substantially outweigh any harm he might experience from the loss of his relationship with mother.
DISPOSITION
The juvenile court's order terminating E.F.'s parental rights to the minor M.R. is affirmed.
WE CONCUR: WILEY, J., VIRAMONTES, J.