Opinion
B296523
04-14-2020
In re A.A., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant v. E.W. et al., Defendants and Appellants.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant E.W. David Thompson, under appointment by the Court of Appeal, for Defendant and Appellant K.E. Mary C. Wickham, County Counsel, Kristen P. Miles, Assistant County Counsel, and Jessica S. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super Ct. No. DK14032) APPEAL from a judgment of the Superior Court of Los Angeles County, Kristen Byrdsong, Commissioner. Affirmed. Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant E.W. David Thompson, under appointment by the Court of Appeal, for Defendant and Appellant K.E. Mary C. Wickham, County Counsel, Kristen P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
A.A. (born in May 2011) was declared a dependent of the juvenile court in May 2016, when the court sustained a petition in which respondent Department of Children and Family Services (DCFS) alleged that A.A.'s biological mother, appellant E.W., had subjected her to and failed to protect her from a substantial risk of serious physical harm. One year later, DCFS removed A.A. from E.W.'s home and placed her in the home of two caregivers, a married pair of physicians related to A.A. through E.W. The court ordered family reunification services, but terminated them one year later and set a permanency planning hearing. At that hearing (in March 2019), it was undisputed that the caregivers would likely adopt A.A., giving rise to a statutory requirement for termination of parental rights. (See In re L.S. (2014) 230 Cal.App.4th 1183, 1199.) E.W., however, asserted the "beneficial parental relationship exception" to this requirement. (Ibid.) The juvenile court rejected the exception, finding that E.W. had not maintained regular visitation, that her bond with A.A. was insufficient, and that the benefits A.A. would receive from the prospective adoption outweighed any she might receive from preservation of E.W.'s parental rights. The court therefore terminated E.W.'s parental rights, along with those of appellant K.E. (A.A.'s alleged father).
On appeal, E.W. contends that she established the beneficial parental relationship exception and that the juvenile court's termination of her parental rights was therefore supported by insufficient evidence. K.E. raises no independent contention of error, instead contending only that we must reverse the termination of his parental rights if we reverse the termination of E.W.'s.
We find that the juvenile court's rejection of the beneficial parental relationship exception was within its discretion and supported by substantial evidence. Accordingly, we affirm.
Our Supreme Court is currently considering "what standard governs appellate review of the beneficial parental relationship exception to adoption . . . ." (In re Caden, review granted July 24, 2019, S255839.) Courts have variously applied the substantial evidence standard, the abuse of discretion standard, and a hybrid of the two. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Regardless of which of these standards applies, we find no error.
Because we reject E.W.'s contention of error and K.E. has raised no independent contention, we need not further discuss K.E.
PROCEEDINGS BELOW
A. Background to Permanency Planning Hearing
The juvenile court first ordered A.A. a dependent of the court in May 2016, when it sustained a DCFS petition alleging that E.W. had subjected five-year-old A.A. to and failed to protect her from a substantial risk of serious physical harm within the meaning of Welfare and Institutions Code section 300, subdivisions (a) and (b). The court ordered A.A. placed in E.W.'s home with family maintenance services. In February 2017, the court sustained a first supplemental petition under Welfare and Institutions Code section 387, alleging that E.W. had endangered A.A. by violating a court order prohibiting contact between A.A. and E.W.'s boyfriend. The court ordered A.A. to remain placed in E.W.'s home, contingent upon DCSF making unannounced home visits and upon E.W.'s compliance with a restraining order against her boyfriend. In June 2017, in response to E.W.'s noncompliance with the restraining order, the court modified its placement order and DCFS placed A.A. with cousins of E.W. (the caregivers).
Shortly after placing A.A. with the caregivers, DCFS filed a second supplemental petition under Welfare and Institutions Code section 387, which the court sustained. The court ordered family reunification services and monitored visitation for E.W. At the six-month review hearing in March 2018, the court found that returning A.A. to E.W. would pose a substantial risk of detriment, warranting her continued placement with the caregivers. At the twelve-month review hearing in September 2018, the court terminated E.W.'s reunification services and set a permanency planning hearing under Welfare and Institutions Code section 366.26.
B. Evidence Admitted at Permanency Planning Hearing
The facts stated in this subsection are derived from four exhibits admitted at the March 12, 2019 permanency planning hearing: (1) a January 2, 2019 DCFS report; (2) a January 17, 2019 Last Minute Information report; (3) a February 28, 2019 "Delivered Service Log"; and (4) a March 12, 2019 Last Minute Information report.
1. Prospective Adoptive Home
The caregivers, a married couple, were each employed as physicians. They loved A.A. and were "eager" to adopt her. They were "providing for her every need; as well as providing a stable, safe and permanent home." Indeed, they "continue[d] to go above and beyond to provide for [A.A.], including providing her with her own bedroom and enrolling her in afterschool activities," including gymnastics and viola.
A.A. was "bonded" with the caregivers, as well as "comfortable and accepting of being raised" by them. A.A. had participated in weekly mental health therapy from August 2017 to November 2018, when her therapist discharged her because she had met her treatment goals. She was "developing age appropriately" and excelling in school. During in-home interviews with a social worker, she consistently reported being happy.
2. Visitation and Contact
In October 2018, about four and a half months before the March 12, 2019 permanency planning hearing, A.A. told a social worker that she would like to speak with E.W. but that she had not spoken with her recently. The caregivers told the social worker that A.A. used to ask them to contact E.W. for her, but "when they'd call either [E.W.] would not answer or would never call back." A.A. no longer asked to call E.W., apparently having reached a point where she "no longer want[ed] to set herself up for rejection." When E.W. initiated a call, however, A.A. was happy to speak with her.
On November 15, 2018, A.A. and the social worker discussed a recent phone call between E.W. and A.A. The social worker asked A.A. if speaking with E.W. made her happy, and she replied, "'[Y]es!'"
On November 20, 2018, during a call with the social worker, E.W. asked to meet with the social worker to visit A.A. E.W. did not follow through with this request.
On December 4, 2018, the caregivers told the social worker that they called E.W. on Thanksgiving but she neither answered nor called back. Indeed, they heard a man's voice on the voicemail recording, leading them to believe that E.W. had changed her phone number. A.A. confirmed that she called E.W. on Thanksgiving but E.W. did not answer. The caregivers reported that A.A. might see E.W. on Christmas or during a December 9 birthday celebration for a grandmother they shared with E.W. E.W. later confirmed she neither attended the birthday celebration nor saw A.A. during the holiday season. The caregivers reported that they attempted to contact E.W. on Christmas but she did not respond.
On January 10, 2019, E.W. called a social worker and asked to obtain paperwork confirming A.A. was not in her custody, for the purpose of giving the paperwork to her housing provider. They scheduled an office visit for January 14. The social worker asked if E.W. would like to see A.A., and E.W. said yes. The social worker told E.W. they would discuss visitation further during the January 14 office visit.
On January 14, however, E.W. called the social worker to report she was unavailable for the office visit due to a medical appointment. During the rescheduled office visit on February 19, 2019, the social worker smelled alcohol on E.W.'s breath. They scheduled a monitored visit with A.A. for March 8, 2019 (several days before the permanency planning hearing). The exhibits admitted at the permanency planning hearing did not disclose whether E.W. followed through with this visit.
C. Termination of Parental Rights
At the March 12, 2019 permanency planning hearing, E.W.'s counsel did not contest the likelihood that the caregivers would adopt A.A. In the face of the resulting requirement that E.W.'s parental rights be terminated, she asserted the beneficial parental relationship exception, arguing, "[E.W.] does have a bond with her daughter. It would be in her child's best interest to continue this parental relationship. [¶] Her child is six years old. The mother was involved in her daughter's life prior to this dependency case being open." E.W.'s counsel did not claim that E.W. had maintained regular visitation or contact.
A.A., born in May 2011, was seven years old at the time of the March 2019 hearing.
A.A.'s counsel (joined by DCFS counsel) argued the beneficial parental relationship exception was inapplicable. A.A.'s counsel conceded that E.W. had a relationship with A.A., but argued E.W. was "not acting in a parental role in any capacity." She noted that she had spoken with A.A. several weeks before, and that A.A. had requested that the court preserve E.W.'s parental rights. Notwithstanding the seven-year-old's wish, A.A.'s counsel joined DCFS in asking the court to terminate both parents' rights.
The court found the beneficial parental relationship exception inapplicable, finding that E.W. had not maintained regular visitation, that E.W. had not "established a bond" with A.A., and that any benefit A.A. obtained from her relationship with E.W. was outweighed by the physical and emotional benefits of the prospective adoption. Finding all other exceptions inapplicable, and A.A. adoptable, the court terminated E.W.'s parental rights and designated the caregivers as the prospective adoptive parents.
As noted, the court admitted exhibits setting forth the evidence summarized above. It also took judicial notice of all prior sustained petitions, case plans, and minute orders.
E.W. timely appealed.
DISCUSSION
E.W. contends that she established the beneficial parental relationship exception to the rule requiring termination of parental rights where the child is likely to be adopted, and that the juvenile court's termination of her parental rights was therefore unsupported by substantial evidence.
A. Principles
"Once the court has decided to end parent-child reunification services, the legislative preference is for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 645 (Breanna), citing Welf. & Inst. Code, § 366.26, subd. (b)(1).) "[I]f the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies." (Breanna, supra, at 645-646.) "One of the statutory exceptions to termination is contained in [Welfare and Institutions Code] section 366.26, subdivision (c)(1)(B)(i), which permits the court to order some other permanent plan if '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' The exception requires the parent to prove both that he or she has maintained regular visitation and that 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."'" (Id. at 646.) "'[A] biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.'" (Ibid., quoting In re Angel B. (2002) 97 Cal.App.4th 454, 466; see also In re Jason J. (2009) 175 Cal.App.4th 922, 936 (Jason) ["'Interaction between natural parent and child will always confer some incidental benefit to the child,'" but beneficial parental relationship exception requires more].) "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."'" (Breanna, supra, at 646.)
"The parent has the burden of proving the statutory exception applies." (Breanna, supra, 8 Cal.App.5th at 646.) "The court's decision a parent has not satisfied this burden may be based on any or all of the component determinations -- whether the parent has maintained regular visitation, 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.'" (Id. at 646-647.) "'[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.'" (Id. at 646; accord, 16 Witkin, Summary of Cal. Law (11th ed. 2019) Juvenile, § 474.)
B. Analysis
On the unextraordinary facts before us, we conclude the juvenile court's rejection of the beneficial parental relationship exception was within its discretion and supported by substantial evidence. Each of the three component determinations is an independent ground for affirming the court's ruling. (See Breanna, supra, 8 Cal.App.5th at 646-647.)
First, undisputed evidence established that E.W. failed to maintain regular visitation and contact. The exhibits admitted at the hearing indicated that in a four-and-a-half-month period preceding the permanency planning hearing, E.W. had at most one visit with A.A. There was no evidence that E.W. visited A.A. more often than reflected in the exhibits, or that she had regular contact with A.A. outside of scheduled visits. On the contrary, the evidence supported a reasonable inference that E.W. knew she could see A.A. in person during two family gatherings, but chose not to attend them. E.W. similarly passed up opportunities to speak with A.A. on the phone, leading A.A. to abandon her earlier requests for the caregivers to call E.W. for her. Even on Thanksgiving and Christmas, E.W. was unresponsive to the caregivers' calls; indeed, the evidence supported a reasonable inference that she had changed her phone number without informing A.A. or the caregivers. On this record, the court did not err in finding that E.W. failed to maintain regular visitation and contact. (See Breanna, supra, 8 Cal.App.5th at 647 [mother's weekly visits during six months preceding permanency planning hearing did not compel finding that she maintained regular visitation and contact, where visits had been more sporadic earlier].)
As noted, the exhibits did not disclose whether E.W. followed through with a visit scheduled for March 8, 2019 (several days before the permanency planning hearing). They made clear she did not otherwise visit A.A. during the specified period.
Second, and relatedly, the evidence established that E.W. failed to maintain a beneficial parental relationship with A.A. within the meaning of the exception. Day-to-day contact is "typical" (albeit inessential) in such a parental relationship, which "characteristically aris[es] from day-to-day interaction, companionship and shared experiences." (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey).) Here, the evidence described above established infrequent interaction, little companionship, and indifference to opportunities for shared experiences. Moreover, other evidence established that the caregivers, not E.W., were "providing for [A.A's] every need . . . ." E.W. appeared to play no role in A.A.'s life beyond that of a loving but seldom heard voice on the phone. (See In re L.S., supra, 230 Cal.App.4th at 1200 [bonding between parents and children was of insufficient quality to establish exception, where their overall relationship was "marked by parental indifference to the minors' core needs for structure and stability"]; Casey, supra, 70 Cal.App.4th at 52-53 [though mother was undisputedly loving toward child and appropriate during visits, there was substantial evidence that no beneficial parental relationship existed, including social worker's report that child saw mother as "'friendly visitor'" or "'part-time day care provider[]'"].) To the extent any in-person visitation occurred, it was monitored. (See In re G.B. (2014) 227 Cal.App.4th 1147, 1165-1166 [though mother maintained regular visitation and contact and there was evidence that her children reacted positively to her visits, "this evidence fell short of establishing that mother's relationship with her children promoted their well-being to such an extent that it outweighed the well-being the children would gain in a permanent home with adoptive parents," in part because all visits were supervised]; Jason, supra, 175 Cal.App.4th at 938 [substantial evidence supported finding that father's relationship with child conferred insufficient benefit to establish exception, regardless of whether father maintained regular visitation, in part because father "had not progressed beyond supervised visitation"].) Thus, the court did not err in finding that E.W.'s relationship with A.A. lacked the parental character required to establish the exception.
Finally, no evidence established that preserving E.W.'s parental rights would promote A.A.'s well-being to such an extent as to constitute a compelling reason to forego adoption. Undisputed evidence indicated that A.A. was thriving in her prospective adoptive home. She did well in school, in extracurricular activities, and in therapy (so well, in fact, that her therapist determined she no longer needed therapy). She was "bonded" with the caregivers, as well as "comfortable and accepting of being raised" by them. She consistently reported being happy in the caregivers' home. To counterbalance the evident benefits of adoption into this home, E.W. principally relies on A.A.'s reported happiness after calls with E.W., and on A.A's reported wish -- expressed to, but not joined by, her counsel -- that E.W. retain her parental rights. The incidental emotional benefit A.A. received from E.W.'s calls was insufficient to establish the exception. (See Jason, supra, 175 Cal.App.4th at 938 [though child enjoyed visits with father and called father "'Daddy,'" father's "friendly relationship" with child was insufficient to outweigh benefits of adoption, absent evidence child had any needs only father could satisfy or had sufficient emotional attachment to be greatly harmed by termination of father's rights].) Further, given that A.A.'s own counsel argued that E.W. was not fulfilling any parental role and requested that the court terminate her parental rights, the seven-year-old's contrary request was not dispositive. (See In re Joshua G. (2005) 129 Cal.App.4th 189, 200-201 [affirming termination of parental rights despite seven- and five-year-old children's wishes to live with mother; "the court need not follow the child's wishes unless he or she is over the age of 12," as following younger child's wishes may not be in child's best interests]; cf. Breanna, supra, 8 Cal.App.5th at 648 [though child "expressed mixed feelings about the prospect of adoption," termination of parental rights was "well within" juvenile court's discretion, where prospective adoptive parents ensured child's physical and emotional needs were met and mother, despite acting appropriately during monitored visits, failed to show she occupied parental role].) Thus, the court did not err in finding no compelling reason to depart from the statutory preference for adoption.
The case on which E.W. principally relies is distinguishable. (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206-1209 [juvenile court erred in rejecting parental beneficial relationship exception, where mother maintained regular unmonitored visits for two months, child had no beneficial relationship with any woman other than mother, and psychologist opined that mother had strong parental bond with child and that termination could cause child emotional and behavioral difficulties].) Other cases on which E.W. relies are unhelpful to her, as they affirmed termination of parental rights notwithstanding the parents' assertion of the parental beneficial relationship exception. (See Casey, supra, 70 Cal.App.4th at 51-53; In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1087-1091.) The final cases on which E.W. relies are inapposite, as they did not address the parental beneficial relationship exception. (See In re Michael D. (1996) 51 Cal.App.4th 1074, 1078, 1088 [affirming order granting mother's petition to modify permanent plan and terminate legal guardianship, where child expressed clear and consistent preference for living with mother and no evidence indicated living with mother would be contrary to child's best interests]; In re Diana G. (1992) 10 Cal.App.4th 1468, 1480-1481 [rejecting parents' contention that juvenile court failed to consider children's views regarding termination before terminating parental rights].)
In sum, the court's rejection of the beneficial parental relationship exception was within its discretion and supported by substantial evidence. Thus, E.W. has shown no error in the court's termination of her parental rights. K.E., having made no independent contention of error, has likewise failed to show error.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.