Opinion
H046722 H046848
09-12-2019
In re J.R., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.R., Defendant and Appellant. In re T.R., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. 17JD000111) (Monterey County Super. Ct. No. 17JD000110)
Mother challenges the juvenile court's termination of her parental rights to her son and daughter and the court's selection of adoption as the children's permanent plan. Mother maintains the juvenile court erred when it determined that the beneficial parent-child relationship exception did not apply. We disagree and affirm.
Mother's initials are J.R.; daughter's initials are T.R.; son's initials are J.R. Given that mother and son share the same initials, we refer to these individuals as mother, son, and daughter to avoid confusion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mother and daughter began living with mother's aunt and uncle, L.A., when daughter was about three years old. M.M., a near-kin relative, also lived in the home. Son was born in 2012, at which time daughter was six years old. The family continued to live with mother's aunt, L.A., and M.M. They lived there continuously except for a month-and-a-half stint when they lived with son's father. Mother's aunt died in June 2017.
On July 25, 2017, the Monterey County Department of Social Services (the Department) filed juvenile dependency petitions on behalf of son and daughter alleging jurisdiction on grounds of parental failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and no provision for support (§ 300, subd. (g)). The petitions alleged that on July 22, 2017, the Department received a referral alleging general neglect and emotional abuse by mother. A social worker and law enforcement responded to the home. Only M.M. and the children—then 11 and four years old—were home. Daughter told the social worker that she and mother had gotten into a fight earlier that day. Mother yelled and cussed at daughter and threatened to "hunt [her] down and kill" her. Son confirmed that mother was yelling and said she was going to kill daughter. After the fight, mother left and had not yet returned home. Daughter said she was afraid of mother, who was "unpredictable" and "always yelling." M.M. reported that mother was erratic and inappropriate in front of the children. He said that mother would go out at night, not returning until 3:00 a.m. or 4:00 a.m., and would leave without asking him or L.A. to babysit. Mother recently had walked around the home topless in front of the children. And she had (falsely) accused M.M. of stealing her sex toys, in front of the children.
All further statutory references are to the Welfare and Institutions Code.
The petitions alleged that the social worker called mother and asked her to come home, which she did. Mother admitted to yelling at daughter earlier that day, going out at night without arranging child care, walking around topless on one occasion, and discussing sexual matters in front of and with the children. She denied threatening daughter. Mother did not view her behavior as problematic.
The petitions further alleged that mother had an adult son and an adult daughter. The Department had received 34 referrals regarding mother since 2003, including reports of mother verbally and physically abusing her children and having substance abuse and mental health issues. And it was alleged that the children's alleged fathers were incarcerated and could not care for them. (§ 300, subd. (g)).
The children were taken into protective custody on July 22, 2017 and were placed with their maternal grandmother shortly thereafter. A maternal uncle, his fiancée, and their children also lived in the home with the maternal grandmother.
The Jurisdiction/Disposition Report, filed on September 7, 2017, reported that daughter's alleged father is serving a 15-year-to-life state prison sentence and has not been involved in raising her. It further reported that son's alleged father has an extensive criminal history, including child cruelty and domestic violence convictions. Son's alleged father had been released from custody but the Department's attempts to contact him had been unsuccessful. The report stated that mother did not believe child welfare intervention was necessary and did not believe she had mental health or drug dependency issues. Daughter was refusing to participate in reunification efforts at the time of the report. Son was having weekly visitation with mother at the Department. During those visits, mother often cried or sobbed while conversing with son. He frequently became "dysregulated directly after the visits, crying and punching his forehead with closed fists." Attached to the Jurisdiction/Disposition Report was a summary of a telephone call between the social worker and mother's adult daughter. The adult daughter told the social worker that she is afraid of mother because mother used to yell, throw things, and make threats. Adult daughter was reluctant to have the children placed with her because she didn't want mother to find out where she lived.
At an uncontested jurisdictional hearing on September 19, 2017, the court declared the children dependents of the court, removed them from mother's custody, and ordered a psychological evaluation, drug testing, and family reunification services for mother.
The report prepared for the six-month review hearing, which was filed on March 13, 2018, recommended that mother continue to receive family reunification services. It reported that mother was living in a shelter, had obtained a full-time job, and was looking for housing. It further reported that she had attended all scheduled meetings at the Department, visited regularly with son, and had recently had her first visit with daughter since the removal. Mother had been attending therapy and receiving psychiatric treatment regularly since the Fall of 2017. She also had completed a parenting education group and two parenting courses, enrolled in outpatient substance abuse treatment, and regularly attended AA/NA meetings. Mother's supervised visits with son were increased from one to two hours each week in December 2017. During those visits, mother helped son with his homework, offered snacks, and comforted him when he was upset. The report recommended that visitation increase and move to unsupervised. The report noted that the children would soon be moving back to the home they lived in before the removal with L.A. and M.M. (The children were, in fact, returned to L.A. and M.M.'s home on March 22, 2018.) At the six-month review hearing on March 20, 2018, the court continued the children as dependents of the court and ordered that mother continue to receive family reunification services.
The Department filed its twelve-month review report on September 10, 2018. The report stated that mother had been homeless for most of the review period and had not yet found stable housing. It further reported that mother's participation in the case plan had been inconsistent. She had reported to her outpatient treatment counselor that she had relapsed into drug use in March 2018. Mother failed to show up for Department-requested drug tests in March, April, June, and August of 2018. She tested positive for amphetamines in drug tests administered in April and May of 2018. Mother stopped working because she had surgery in mid-March and had not resumed employment.
In April 2018, daughter stopped participating in visitation with mother. Mother attempted to contact daughter at her weekly therapy sessions at the Department and continued to do so after the Department told her to stop. As a result, the Department barred mother from being in the Department when she did not have a meeting, visitation, or a therapy session scheduled.
Mother's visitation with son moved to unsupervised on March 22, 2018. Mother repeatedly failed to comply with the Department's requirement that she inform the Department of her plans for the visits in advance. For that reason, and because of mother's failed drug tests, visitation with son was moved back to supervised in May 2018. During the supervised visits, mother played with son, read to him, asked him about school, and offered him food and treats. But some visits went poorly. On May 17, 2018, mother cried continuously; son threatened self-harm if she did not stop. On June 7, 2018, mother appeared to be under the influence during a visit with son. On June 14, 2018, mother again was crying during her visit with son and used foul language in his presence. Visitation was reduced to one hour a week thereafter. The Department recommended that visitation remain supervised and be reduced to monthly.
A contested 12-month review hearing was held on September 26, 2018. At that time, the court terminated family reunification services for mother.
The Department filed its section 366.26 report on January 4, 2019, recommending termination of parental rights and adoption as the children's permanent plan. The Department reported that L.A. and M.M. were the prospective adoptive parents and that they were committed to providing the children with a permanent home. In connection with the upcoming section 366.26 hearing, son's court-appointed special advocate filed a report on December 20, 2018. The court-appointed special advocate reported that son "misses his mother" and had "mentioned his mother many times . . . and wanting to see her." The report further stated that son "appears to be closely bonded with his caregivers and also connected with his mother."
The juvenile court held a section 366.26 hearing on February 25, 2019. Mother testified at that hearing that she and son were very close and that the termination of her parental rights would be detrimental to him because "[k]ids need their parents." Mother further testified that son calls her "mom," is affectionate with her, and tells her that he loves her. Mother's counsel stipulated that the children were adoptable.
The court concluded that mother had not made the necessary showing to establish the applicability of the beneficial parent-child relationship exception. Specifically, the court explained that mother was required to "[s]how . . . that [her] role is so significant and beneficial that it should overcome, in the words of Autumn H., the well-being, stability, and security that the children would gain in an adoptive home." Applying "the Autumn H. analysis," the court concluded that the evidence did not support a finding "that the detriment would be so significant for [son], if the Court were to order adoption, that I should not give him that permanency. . . . [T]he Court did not find that there was such a sufficient showing by statute, that having found that the children are adoptable, that the Court could find that that is not the appropriate plan for the children and that [mother's] rights should not be terminated." After finding by clear and convincing evidence that the children were likely to be adopted, the court terminated mother's parental rights to son and daughter. The court also terminated the parental rights of the children's alleged fathers.
In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.).
Mother timely appealed in each of the children's cases. This court ordered the two appeals considered together for the purpose of briefing, oral argument, and disposition.
II. DISCUSSION
Mother contends the juvenile court erred by failing to apply the beneficial parent-child relationship exception to termination of parental rights. She says the exception applies because she consistently visited with son, who was emotionally attached to her. She makes no substantive argument regarding daughter.
A. Legal Principles
1. The Beneficial Parent-Child Relationship Exception
"The purpose of the section 366.26 hearing is to select a permanent plan for the child after reunification efforts have failed or been refused." (In re I.R. (2014) 226 Cal.App.4th 201, 210.) "The alternatives available to the juvenile court at the section 366.26 hearing are limited to those set forth in the statute" (ibid.), and "the statutory preference is to terminate parental rights and order the child placed for adoption." (In re C.B. (2010) 190 Cal.App.4th 102, 121 (C.B.); § 366.26, subd. (b)(1).) "Adoption is the Legislature's first choice because it gives the child the best chance at such a commitment from a responsible caretaker." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
"Adoption must be selected as the permanent plan for an adoptable child and parental rights [must be] terminated unless" certain exceptions apply. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.); § 366.26, subd. (c)(1).) One such exception—the beneficial parent-child relationship exception—applies where the court finds "a compelling reason for determining that termination [of parental rights] 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).) "[T]he proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship." (Bailey J., supra, at p. 1314.)
For purposes of the beneficial parent-child relationship exception, a child would benefit from continuing the parent-child relationship where " 'the relationship 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.' " (C.B., supra, 190 Cal.App.4th at p. 124.) Thus, in determining whether the exception applies, "[t]he juvenile 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.' " (Ibid.) " 'The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond,' " including " '[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.) "A showing [that] the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] 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 Breanna S. (2017) 8 Cal.App.5th 636, 646.)
2. Standard of Review
We apply a hybrid standard of review to the juvenile court's determination that the beneficial parent-child relationship exception did not apply. We review factual findings, including whether a beneficial parental relationship exists, for substantial evidence. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Where the juvenile court concludes the parent did not carry their burden to establish the existence of a beneficial parental relationship, the question for us is whether "the undisputed facts established the existence of a beneficial parental . . . relationship." (Ibid.; In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) We review whether the relationship constitutes a compelling reason for determining that termination of parental rights would be detrimental to the child for abuse of discretion. (Bailey J., supra, at p. 1315.)
B. The Juvenile Court Did Not Err
The juvenile court did not find the existence of a beneficial parent-child relationship. Under Autumn H., such a relationship exists where "the relationship 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Here, the court concluded that the benefits son would derive from the "permanency" of adoption were not outweighed by his relationship with mother. Thus, mother must show that "undisputed facts established the existence of a beneficial parental . . . relationship." (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
In an effort to make that showing, mother points to evidence that son calls her "mom," wants to spend time with her, and loves her. She also relies on evidence that during visits, she provided snacks for son, played with him, and made him do his homework. But evidence of " 'frequent and loving contact, an emotional bond with the child, or pleasant visits' " is not sufficient " '[t]o meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception.' " (C.B., supra, 190 Cal.App.4th at p. 126.) Moreover, there was evidence that some of son's interactions with mother negatively affected his well-being. (Bailey J., supra, 189 Cal.App.4th at p. 1315 [one factor " 'to be considered when looking for whether a relationship is important and beneficial' " is " 'the positive or negative effect of interaction between the parent and the child' "].) For example, mother continued to struggle with drug use, even appearing to be under the influence during one of her visits with son. And mother frequently cried during visits. Her emotional instability upset son so much that, on one occasion, he threatened self-harm if she did not stop crying.
Even if mother had established the existence of a beneficial parent-child relationship, she cannot show that the juvenile court abused its discretion in selecting adoption as son's permanent plan. While mother and son may have a loving bond, the depth and stability of their relationship are threatened and undermined by mother's emotional instability and "unresolved substance addiction issues" (In re Noah G. (2016) 247 Cal.App.4th 1292, 1302). Meanwhile, son's prospective adoptive parents, L.A. and M.M., with whom son has lived for most of his life, have provided him and his sister with a stable and loving home. In these circumstances, the juvenile court's conclusion that the benefits to son of adoption outweighed any detrimental impact the termination of parental rights might have on him was not arbitrary. (Bailey J., supra, 189 Cal.App.4th at p. 1315 ["the juvenile court [must] determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption"].)
Mother's reliance on In re Scott B. (2010) 188 Cal.App.4th 452 is misplaced. That case involved an 11-year-old boy with special needs. (Id. at p. 471.) Because of those special needs, the boy's "emotional state" was "precarious." (Id. at p. 472.) He also had a "history of regressing and running away when he [was] stressed . . . ." (Ibid.) Given those facts, and evidence that the boy and his mother had "a very close relationship," the Court of Appeal concluded that termination of mother's parental rights would be detrimental to the minor. (Id. at p. 471.) In the court's view, "[t]he only way to avoid [a] serious emotional and developmental setback" was to ensure continued visitation with mother. (Id. at p. 472.) By contrast, here there is no evidence that termination of mother's parental rights will cause serious emotional and developmental problems for son. During the review period, son's visitation with mother was reduced from twice a week, to weekly, to monthly. Nothing in the record indicates that son experienced emotional or developmental setbacks as a result of the reduced visitation.
III. DISPOSITION
The orders are affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
GREENWOOD, P. J. /s/_________
PREMO, J.