Opinion
B303923
07-08-2020
In re L.M. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Y.R., Defendant and Appellant.
Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17CCJP02236A-C) APPEAL from orders of the Superior Court of Los Angeles County. Steff Padilla, Juvenile Court Referee. Affirmed. Jill Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
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Yuliana R. (Mother) appeals the juvenile court's termination of her parental rights over her three children. She contends the court erred by failing to apply the beneficial parent-child relationship exception to the preference for adoption found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). She asserts legal guardianship is the only appropriate permanent plan for the children given her strong bond with them. We disagree and affirm.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
FACTS
Mother has three children with Gerardo M. (Father): Leonardo M., Julian M., and Gianna M. At the time the dependency proceedings were initiated, Leonardo was 11, Julian was nine, and Gianna was seven.
In 2012, the family came to the attention of the Los Angeles County Department of Children and Family Services (DCFS). A petition filed pursuant to section 300, subdivisions (a) and (b), was sustained for Father's domestic violence against Mother and Mother's failure to protect the children from witnessing it. Father failed to complete services or participate in the case plan in the 2012 proceedings. Mother completed all services and was granted sole legal and physical custody of the children.
In September 2017, the case was reopened after a second referral to DCFS, also involving domestic violence. Mother admitted she reunited with Father in 2017 because she was financially dependent on him and believed he had changed. The children were detained with the maternal grandparents on December 1, 2017. The children confirmed they witnessed Father punching, slapping, or choking Mother on different occasions. Gianna reported she was asleep in the upper bunk of a bunk bed one day when she was awakened by a noise. She saw Father choking Mother, whose face turned red. When Father saw Gianna was awake, he stopped and left in his truck. Gianna stated, "I don't like to leave my mom alone with my dad. If they are alone, he starts beating her up." Mother denied she had any contact with Father after the choking incident, but the children reported Father stayed with them every day in motels.
On July 25, 2018, Mother pled no contest to the following allegation made pursuant to section 300, subdivision (b): "On or about 09/19/17, the father slammed the mother's arm against a door. On a prior occasion, the father threw objects at the mother, including a bottle, in the presence of the children Julian and Gianna. The father has a history of criminal convictions of Battery: Spouse/Ex/SP/Date/Etc., Inflict Corporal Injury: Spouse/Cohabitant, and Violate Court Order to Prevent Domestic Violence. The mother was unable to protect the children in that she allowed the father to reside in the children's home and to have unlimited access to the children. The children were prior dependents of the Juvenile Court due to the parents engaging in violent altercations and the mother failing to protect the children. Such violent conduct on the part of the father against the mother, and the mother's inability to protect the children endangers the children's physical health and safety, and places the children at risk of serious physical harm, damage, danger and failure to protect."
The juvenile court accordingly sustained the allegation and assumed jurisdiction over the children. The juvenile court ordered the children to remain with the maternal grandparents. The case plan required Mother to participate in domestic violence and parenting programs as well as individual counseling. The court further ordered on demand drug or alcohol testing upon reasonable suspicion of drug or alcohol use. The parents were permitted monitored visitation three times per week for two hours per visit but were not permitted to visit together.
Father is not a party to this appeal. Therefore, we do not set forth the orders and findings related to him. --------
In the six-month status review report, DCFS reported Mother was in partial compliance with the case plan. She enrolled in a parenting and domestic violence program but was on the wait list to receive individual therapy. She also actively participated in weekly visits with the children. The children reported they enjoyed Mother's visits, but Gianna and Julian were apprehensive about unmonitored visits with Mother. They both wanted the maternal grandparents present. Gianna feared Mother would take her from the maternal grandparents. Julian stated, "I would be mad [about unmonitored visits] because I need to be with my grandma and grandpa in case something happens. She might take me and not bring me back and my dad might be there because he's sneaky. I'm not ready to go alone with my mom." Although Leonardo believed he would feel safe during an unmonitored visit with Mother, he preferred the maternal grandmother to monitor visits. Throughout the proceedings, the maternal grandparents provided a stable home for the children, ensuring their needs were met.
The six-month review hearing, originally set for January 2019, was continued several times. On April 11, 2019, the juvenile court found returning the children to the parents would create a substantial risk of detriment to their wellbeing. However, it determined Mother had made substantial progress toward alleviating or mitigating the causes necessitating placement and that reasonable services had been offered to return the children home. The court thus liberalized Mother's visitation to unmonitored visits over DCFS's objection.
DCFS filed a status review report on May 14, 2019, confirming Mother had completed a parenting program and was scheduled to complete a domestic violence program by the end of May. She had just begun court-ordered individual counseling. The children continued to enjoy regular visits with her. Although the juvenile court liberalized visitation in April, her first unmonitored visit with the children took place almost a month later, on May 5, 2019, because she understood they were apprehensive about going on an unmonitored visit with her and did not want to push them. During this first unmonitored visit, she took the children out on her own for two hours before the maternal grandparents joined them for the remaining four hours. The maternal grandparents reported the children returned from the unmonitored visit in good spirits. The children reported enjoying the unmonitored visit with Mother and requested additional unmonitored visits.
On May 21, 2019, the children's social worker received a voicemail indicating it appeared Mother "is always high on methamphetamine and disappears for 6 days at a time." The reporting party further asserted Mother associated with a known pedophile, causing concern for Gianna's safety if she were returned to Mother's custody. The children's social worker immediately attempted to set up an on demand drug test, but Mother stated she did not have valid identification with her to test that day. When the social worker offered to generate a drug testing identification card for Mother, Mother stopped returning her text messages and phone calls. In a last-minute information to the juvenile court, the social worker recommended Mother return to monitored visits and be required to participate in a drug rehabilitation program.
As a result, the juvenile court ordered Mother to drug test; if she returned a positive test, her visitation would revert to monitored visits. Mother tested positive for methamphetamine and amphetamine on May 29, 2019. She failed to appear for drug tests on June 10, June 24, and July 3, 2019. Mother reported she was unable to provide a sample on July 10, 2019, despite trying three times. Mother denied using drugs, but admitted she socialized with people who did.
The juvenile court held the section 366.22 permanency review hearing on July 23, 2019. It found Mother's progress toward alleviating or mitigating the causes necessitating placement to be nonexistent. It terminated family reunification services and referred the matter for a section 366.26 hearing to select and implement a permanent, out-of-home plan for the children.
In its November 19, 2019 report, DCFS advised the court Mother reverted to monitored visits on May 29, 2019, when she tested positive for methamphetamine. Throughout the proceedings, Mother's visits with the children were appropriate and the children uniformly reported enjoying them. Mother consistently visited the children until August 28, 2019, when she abruptly stopped. DCFS reported Mother had not visited the children since then. She called once in October 2019 but disconnected the call when Gianna asked why she had not visited. The social worker noted the children loved seeing Mother and often asked the maternal grandmother if she will visit them again. They were worried about her because she no longer called or visited.
DCFS conducted a planning assessment with the maternal grandparents regarding adoption. The maternal grandparents reported they wanted to adopt the children to ensure they had a stable, safe, and loving environment. They understood the difference between adoption and legal guardianship and wanted to provide the children with permanency through adoption. The children confirmed they liked living with the maternal grandparents and wished to continue living with them.
The juvenile court held the section 366.26 hearing on December 6, 2019. At the hearing, counsel for the children and DCFS argued in favor of termination of parental rights while counsel for Mother and Father argued against it. Mother asserted the beneficial parent-child relationship exception to adoption applied. The children's counsel confirmed all three children wished to be adopted. Leonardo, who was 13 at the time of the hearing, had previously stated on the record he wished to be adopted.
The juvenile court found by clear and convincing evidence the children were adoptable and no exception to adoption applied. The court found the children's physical, emotional, psychological, and safety needs were being met. It observed, "The children are with relatives. They're with the maternal grandparents. There seems no reasonable explanation as to why mother has stopped visits." It further found neither parent had a parental relationship with the children. It concluded any benefit to the children from their relationship with Mother was outweighed by the physical and emotional benefit they would receive through the permanency and stability of adoption. As a result, the court terminated Mother's and Father's parental rights over the children and ordered adoption to be the permanent plan. Mother appealed.
DISCUSSION
I. The Beneficial Parent-Child Relationship Exception to Adoption Does Not Apply
Mother contends the beneficial parent-child relationship exception to terminating parental rights applies in this case. We disagree and find substantial evidence supports the juvenile court's findings, and it did not err to order Mother's parental rights terminated.
"Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)," including the beneficial parent-child relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights and order the child placed for adoption unless the court finds "a compelling reason for determining that termination would be detrimental to the child" 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); In re K.P. (2012) 203 Cal.App.4th 614, 620 (K.P.); In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.).) "Because a parent's claim to such an exception is evaluated in light of the Legislature's preference for adoption, it is only in exceptional circumstances that a court will choose a permanent plan other than adoption. [Citation.]" (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
"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.' " (K.P., supra, 203 Cal.App.4th at p. 621, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Thus, "[t]he 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. [Citation.] Instead, the parent must show that he or she occupies a 'parental role' in the child's life. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 827.)
The type of parental role which gives rise to the exception has been described as "a relationship characteristically arising 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. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Casey D., supra, 70 Cal.App.4th at p. 51.) To determine whether the parent-child relationship exception applies, a court considers factors such as " '(1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of the interaction between the parent and the child, and (4) the child's particular needs.' " (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) " '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.' [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 553.)
The record supports the juvenile court's determination that this is not the exceptional case where the beneficial parent-child relationship exception applies. By the time of the section 366.26 hearing, the children had lived and thrived in the maternal grandparents' home for two years. The maternal grandparents ensured the children's physical, emotional, and safety needs were met, taking them to wraparound services, therapy, medical appointments, and school functions. Each child expressed the desire to be adopted by the maternal grandparents; Leonardo did so in court. Mother does not dispute the maternal grandparents have met the children's needs during this time. Nor is there any dispute that they wish to be adopted by the maternal grandparents.
Mother instead contends the four factors identified in In re Helen, supra, 150 Cal.App.4th at page 81, militate in favor of applying the beneficial parent-child relationship exception to adoption. Mother asserts she has maintained regular visitation and has a strong bond with the children, particularly since the children have spent most of their lives in her custody rather than the maternal grandparents'. By Mother's calculation, the two years the children spent in the maternal grandparents' custody was fleeting compared to the approximately 11, 9, and 7 years Leonardo, Julian, and Gianna were respectively in her care. Mother also contends the juvenile court failed to consider the strong bond she had with the children when it ordered parental rights terminated. Throughout the proceedings, the children uniformly reported only positive interactions with Mother. They loved to visit with her and looked forward to her visits. The maternal grandmother confirmed the children enjoyed their visits with Mother.
While it is undisputed the children love and enjoy spending time with Mother, Mother must do more than demonstrate "frequent and loving contact." (In re Derek W., supra, 73 Cal.App.4th at p. 827.) Indeed, the record does not support a finding that Mother has maintained regular visitation as required under section 366.26, subd. (c)(1)(B)(i). The record shows Mother was consistent with her visitation from December 2017 until August 28, 2019, when she inexplicably stopped visiting the children. This caused them significant concern. Mother has yet to explain her absence. When Gianna asked her why she stopped visiting during the only phone call she made to the children during that period of absence, she disconnected the call.
In any event, Mother's visitation, even if regular, does not establish the "benefit" prong of the exception. Substantial evidence supports the finding she lacked a parental relationship with the children. During the two years of these dependency proceedings, Mother failed to even progress beyond monitored visitation, aside from approximately three weeks in May 2019. The record shows the children enjoyed going to the movies, to the park, or bowling with Mother. Without more, these activities do not demonstrate anything other than a "friendly visitor relationship." (Casey D., supra, 70 Cal.App.4th at p. 51.) There is nothing in the record to show Mother performed any of the parental functions the maternal grandparents had undertaken, such as taking the children to medical appointments or attending school functions.
As noted in Casey D., while day-to-day contact is not necessarily required for a parent to establish the beneficial relationship exception, the parent's required showing will be "difficult to make in the situation . . . where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child." (Casey D., supra, 70 Cal.App.4th at p. 51.)
Although the children spent more years living with Mother than with the maternal grandparents, that time was marred by instability and violence. Dependency proceedings were initiated twice upon a finding that Mother failed to protect the children from witnessing Father's violence. Even when they lived with her, it was the children who tried to protect Mother rather than Mother who tried to protect the children. At age seven, Gianna reported, "I don't like to leave my mom alone with my dad. If they are alone he starts beating her up." Indeed, the children remained wary of Mother's ability to keep them safe and looked to the maternal grandparents for their safety needs. Julian and Gianna were reluctant to go on unmonitored visits with Mother because they were afraid she or Father would take them. Leonardo likewise expressed a preference for the maternal grandmother to supervise Mother's visits. Mother's failure to progress beyond monitored visitation and her failure to occupy a parental role in the children's lives justifies an order terminating parental rights. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.)
II. Adoption is the Preferred Permanent Plan
Mother asserts legal guardianship is preferable to adoption in this case. She posits guardianship would further the goal of providing a stable home for the children while also allowing them to continue their relationship with her. We do not agree this compromise solution is in the best interest of the children.
"The Legislature has decreed . . . that guardianship is not in the best interest of children who cannot be returned to their parents. [C]hildren can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, 'Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.' " (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419, quoting Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251.)
Thus, "guardianship is only the best possible permanent plan for children in circumstances where the exceptions to terminating parental rights in section 366.26, subdivision (c)(1) apply." (In re Beatrice M., supra, 29 Cal.App.4th at p. 1420.) The cases relied upon by Mother, In re Scott B., supra, 188 Cal.App.4th at page 472 and In re Jerome D. (2000) 84 Cal.App.4th 1200, 1209, support this conclusion. In each of those cases, the appellate court found the parent-child relationship exception applied to prevent termination of parental rights. The court accordingly found legal guardianship to be the best permanent plan under those circumstances. Here, the juvenile court has reached the opposite conclusion, finding the beneficial parent-child relationship exception does not apply to prevent termination of parental rights. As a result, guardianship is not preferable to the more permanent solution of adoption in this case.
DISPOSITION
The juvenile court's orders terminating parental rights are affirmed.
BIGELOW, P. J. We Concur:
STRATTON, J.
WILEY, J.