Opinion
G058819
06-17-2020
In re G.R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DP0213) OPINION Appeal from orders of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
A.C. (Mother) appeals from the juvenile court's orders denying her Welfare and Institution Code section 388 motion without a hearing and terminating her parental rights to her daughter, G.R. Mother contends the court erred because she sufficiently alleged changed circumstances, G.R.'s best interests justified reunification, and the parental benefit exception to termination of parental rights applied. We find no error and affirm the orders.
All further statutory references are to the Welfare and Institution Code.
FACTS
I. Detention
After G.R. was removed from Mother's and S.R.'s (Father) care and placed at Orangewood Children and Family Center (Orangewood) pursuant to a protective custody warrant, Orange County Social Services Agency (SSA) filed a detention report and petition. In its March 2018 petition, SSA alleged Mother and Father failed to protect G.R. (§ 300, subd. (b)(1)). The petition alleged that on February 17, 2018, Mother and Father left two-year-old G.R. in the care of the paternal uncle (Uncle) while they were shopping at a mall. The parents were caught shoplifting, and Uncle was intoxicated. The parents also appeared to be intoxicated. After security officers determined none of the three could drive, officers called a taxi. The family circled around the parking lot in the taxi until officers left the area. Mother allowed Uncle, who was intoxicated, to drive them all home. The petition alleged that about the same time parents engaged in domestic violence in G.R.'s presence. It stated a previous domestic violence incident resulted in a protective order Mother and Father ignored. The petition alleged Mother had an unresolved substance abuse problem which included alcohol. It also alleged Father had unresolved substance abuse and anger management problems, and he had a criminal history.
Father is not a party to this appeal, and we limit our statement of the facts accordingly.
At the detention hearing, Mother requested the maternal grandmother be assessed for placement, and the court ordered SSA to evaluate relatives for placement. The court ordered a minimum of six hours of supervised visitation per week for Mother. The court concluded a prima facie case had been made and ordered G.R. detained (§§ 319, 319.2). The next day, the maternal grandmother declined placement. A couple days later, G.R. was placed with the maternal great aunt (the caregiver) on March 8, 2018. II. Jurisdiction
The caregiver is sometimes referred to as the maternal great grandmother and other times as the maternal great aunt. For simplicity, we refer to her as the caregiver.
In the jurisdiction/disposition report, the social worker reported G.R. and the caregiver had a positive relationship. The social worker indicated G.R. appeared happy in her placement. The caregiver reported that during visits Mother played comfortably and affectionately with G.R. Mother told the social worker that she planned to reunify with G.R. and she could provide adequate care.
In an addendum report, the social worker indicted Mother reported attending two parenting classes and was scheduled to participate in the Personal Empowerment Program (PEP). Mother's relatives reported to the social worker that Mother had visited G.R. intermittently.
At the jurisdiction hearing, Mother submitted to the petition. The court found the allegations true and declared G.R. a dependent of the court pursuant to section 300, subdivision (b). The court set a disposition hearing for May 31, 2018. III. Disposition
In an addendum report, the social worker reported Mother was arrested on a bench warrant and was incarcerated. The social worker reported Mother was attending PEP and parenting classes and would start individual counseling. Mother indicated she was looking for a place to live and reiterated her desire to reunify with G.R. Mother's relatives said Mother was visiting G.R., who was ecstatic to see her. Mother was attentive, unlike previous visits when she was on her cell phone.
At the disposition hearing, the court declared G.R. a dependent child, removed custody from her parents, vested custody with SSA, and ordered reunification services for Mother. Mother's case plan included domestic violence counseling, individual therapy, and parenting education. Mother waived visits while she was in custody. The court set a six-month review hearing for January 15, 2019. IV. Six-Month Review
In a status review report, the social worker reported Mother had made minimal progress in her case plan because she was incarcerated after she pleaded guilty to being a passenger under 21 in possession of alcohol and driving under the influence of a drug causing injury, and admitted inflicting great bodily injury. During her incarceration, Mother completed a parenting program and a general educational development program. The social worker reported that although Mother had waived her right to her two monthly visits during her incarceration, she requested and had one visit with G.R. in October 2018. The caregiver reported G.R. tried to hit the glass partition and appeared to be sad and anxious during the 20-minute visit.
Mother was released after serving six months in jail. The social worker reported Mother stated she intended to participate in her case plan services to regain custody of G.R. She was unemployed and residing with her mother. Mother had twice-weekly, three-hour supervised visits but missed several visits. The social worker reported Mother made two visits in November. At the first visit, Mother was not very interactive with G.R. and was focused on her cell phone. At the second visit, Mother was more interactive as the visit took place in the park. The caretaker reported G.R. did not seem affected after visits ended as she did not cry or ask for Mother. The social worker reported that during this reporting period, Mother's progress with her case plan was minimal because of her incarceration.
Since being released, Mother missed several visits, was late for visits, and used her cell phone consistently during visits. The social worker reminded Mother about visitation guidelines such as punctuality and having visits with maternal grandmother. The caregiver indicated she and her adult daughter R.B. were concerned that when maternal grandmother attended visits with Mother, the maternal grandmother controlled the visit and Mother did not interact with G.R. The social worker reported Mother planned to enroll in a PEP when class began in January 2019. The social worker reported that in January 2019, the court ordered SSA or a person SSA approved to supervise Mother's visits. SSA recommended G.R. remain a dependent child, the court find reasonable services were provided to Mother, G.R. should not be returned to Mother's custody, reunification services continue, and the court set a 12-month review hearing.
In an addendum report, the social worker reported she had met with Mother, who agreed to continue with services. Mother said she had attended one therapy session so far and she was on the wait list for PEP. A counselor left a voicemail message for the social worker indicating Mother attended her intake meeting but missed her first meeting. Mother attended all but one January visit with G.R. The social worker reported Mother was able to meet G.R.'s needs by bringing snacks, assisting her to use the restroom, actively playing with her, watching movies with her, and instructing her to clean up. Mother and G.R. were affectionate with each other as evidenced by hugs and kisses.
At the six-month review hearing, SSA recommended continued services for Mother, indicated hope Mother would engage in counseling and other services, and commented Mother had excellent visits with G.R. The court concluded Mother had made minimal progress but there was a substantial probability G.R. would be returned to Mother within six months with additional services. It ordered another period of reunification services. The court modified Mother's case plan to include substance abuse testing (and a substance abuse treatment program should she test positive) and a 12-step program. The court set a 12-month review hearing for May 15, 2019. V. 12-Month Review
In a status review report, SSA recommended terminating reunification services and scheduling a section 366.26 hearing. G.R. continued to do well in her placement. The social worker reported Mother was not drug testing and had not enrolled in or attended any programs ordered in her case plan. Mother missed all 18 scheduled drug tests during the reporting period. She did not complete counseling services, drug testing, a substance abuse program, 12-step meetings or a domestic violence program, and was terminated from individual counseling. When the social worker inquired why, Mother said she was "overwhelmed" and it was "too much." Mother reported she was unemployed and living with her aunt but did not provide the address. The social worker reported Mother consistently visited G.R. but she occasionally arrived late.
In an addendum report, SSA continued its recommendation. The social worker indicated G.R. appeared to be healthy and happy in her current placement. The caregiver and R.B. expressed interest in adopting G.R. and they loved her greatly. The caregiver reported seeing Mother and maternal grandmother give G.R. a cell phone to play with during visits while the two adults paid little attention to G.R. The caregiver informed the social worker of an incident that occurred on July 7, 2019. Maternal grandmother had been authorized to supervise Mother's visits with G.R. When Mother and maternal grandmother returned G.R. after a visit, maternal grandmother parked her car quite a distance from the house. Mother appeared to be in a rush to drop off G.R. When the caregiver asked why she was in a hurry, Mother said she said she had some things to do. The caregiver's daughter came home and said there was an unidentified male in maternal grandmother's vehicle. When the caregiver attempted to approach the vehicle, Mother tried to stop her. When the caregiver successfully reached the car, she asked the male occupant who he was. He said he was Mother's friend. When the social worker asked G.R. who the man was, G.R. said it was "'mommy's friend.'" When the social worked asked G.R. what they did during the visit, G.R. said "'we went to house [sic].'" Father later reported seeing Mother's ex-boyfriend, a known gang member, in maternal grandmother's car. When the social worker asked Mother about the incident she was hostile. As a result, the social worker stopped maternal grandmother from supervising visits and moved the visits back to Orangewood.
The social worker reported Mother still had not enrolled in the court ordered programs, but she was looking into various programs. When the social worker asked Mother why she was not drug testing, Mother replied, "'What's the point?'" She admitted using marijuana because it was legal in California. Mother reported G.R. randomly expressed a wish to return home with Mother and maternal grandmother.
At the 12-month review hearing, the court concluded Mother had made minimal progress, terminated reunification services, and set a section 366.26 hearing for November 12, 2019. The court ordered continued twice-weekly supervised visitation for Mother. Mother's counsel indicated maternal grandmother was interested in placement and adoption. The court ordered maternal grandmother continue to be included as a placement resource. VI. Sections 366.26 & 388
In the section 366.26 report, SSA recommended terminating parental rights and freeing G.R. for adoption. The social worker reported G.R. was physically healthy, developmentally on track except for some stuttering, doing well mentally and emotionally, and was well-behaved. The caregiver reported to the social worker that she took G.R. to the emergency room for treatment when G.R. spilled hot soup down her chest resulting in a second-degree burn. The social worker opined the caregiver had taken appropriate steps to address the accident. The social worker reported G.R. denied any physical abuse and said she loved the caregiver. The caregiver and R.B. were committed to adopting G.R. and on January 26, 2019, Resource Family Approval (RFA) approved their home. The social worker chronicled Mother's visits during this reporting period. Mother attended 25 of 32 scheduled visits. Although Mother arrived late to some visits and required coaching, Mother was appropriate with G.R. and they had a good relationship. The court continued the section 366.26 hearing a few times to January 31, 2020.
In addendum reports, SSA found G.R. was adoptable, and recommended termination of parental rights and adoption as G.R.'s permanent plan. The social worker reported that Mother sent her a text message stating she was participating in parenting classes and counseling services. Mother requested permission to take G.R. to Disneyland for six hours for G.R.'s birthday. The social worker told Mother this would be authorized only if the caregiver could supervise the visit. During this reporting period, Mother was late to or cancelled the majority of the visits.
In January 2020, Mother expressed concerns about G.R.'s placement with the caregiver. Mother reported R.B.'s boyfriend posted on Facebook information indicating the caregiver was not properly caring for G.R., leaving her unsupervised and unbathed, etc. Mother indicated the caregiver was not properly caring for G.R.
The caregiver reported to the social worker that R.B. snuck her boyfriend (boyfriend) into the house to give him a place to sleep about three times because he was homeless. The boyfriend had been threatening the family and posting on social media the caregiver neglected G.R. The caregiver believed he was against the adoption and was trying to convince R.B. to oppose it. The caregiver gave the social worker a note the boyfriend left admitting his accusations were false and he made the social media posts because he was angry. The caregiver stated she told R.B. her boyfriend could not stay in the home because SSA had not approved him and the caregiver did not want to risk the placement. The caregiver reported asking the police for help to prevent the boyfriend from staying at the house, but she was told as long as R.B. was a resident at the house she could allow the boyfriend to visit. The caregiver denied ever leaving G.R. alone with the boyfriend. The social worker reported G.R. denied any abuse or neglect and said she would like to remain with the caregiver.
The social worker reported she spoke with the boyfriend about his allegations against the caregiver. The boyfriend said the caregiver allowed the child to walk around the house and backyard unsupervised wearing only underwear. The social worker observed the boyfriend's speech appeared slurred and unintelligible, and he went from one topic to the next, making it hard for her to follow what he was saying. When the social worker said he could not move into the home due to needing a clearance and authorization, he became upset, raised his voice, insulted the social worker and told her she could not tell him what to do. After caregiver went to the police station, the caregiver gave R.B. a letter advising her to leave the premises immediately.
SSA's Quality and Service Team (QST) reported the boyfriend said he had a Facebook site called "'Liberate [G.R.]'" and he started a social media campaign to "bring down" SSA and get everyone involved in this case fired. He claimed the caregiver was neglectful and abusive. He was hard to track as his speech was tangential. The boyfriend said G.R. was "'screwed up'" and described her engaging in abnormal behavior. The boyfriend ultimately ended the call, saying he would have everyone fired for incompetence.
The social worker reported she contacted G.R.'s preschool teacher to ask if the teacher had any concerns about G.R. The teacher reported the school had no concerns for her. The teacher indicated she observed G.R. and the caregiver had a great relationship and G.R. appeared to be well taken care of.
The social worker reported she spoke to Father regarding the boyfriend's allegations. Father said he was concerned about the boyfriend but not the caregiver. Father said the caregiver loves G.R. and takes good care of her, and he denied seeing any signs of neglect.
The social worker reported she contacted R.B. and reminded her of an upcoming Child and Family Team (CMT) meeting the same day. The social worker told R.B. it was important for her to attend the meeting because the agency wanted to hear her concerns. R.B. offered many excuses and indicated she would not attend.
In attendance at the CMT meeting were Mother, Father, maternal grandmother, the caregiver, and social workers. Mother said she was a good mother and wanted G.R. back. Father said G.R. was in a good home and he wanted to see her as much as possible. CMT recommended G.R. remain with caregiver, and to change the plan from joint adoption with R.B. to adoption only by the caregiver. SSA's recommendation remained the same that parental rights be terminated with a permanent plan of adoption and the parents attend the section 366.26 hearing on January 31, 2020.
Mother filed a section 388 petition requesting reunification services and increased visitation. The court set a prima facie hearing on the initial 388 petition for January 31, 2020.
On that day, Mother filed a second 388 petition, which replaced the first. In the second petition, Mother requested the court return G.R. to her under family maintenance, or in the alternative, place G.R. with maternal grandmother. Mother stated she was enrolled in counseling and parenting programs, was compliant with her probation requirements, including testing for alcohol, was employed 40 hours a week, was no longer in a relationship with Father or anyone else, had a stable and appropriate home for G.R., had positive visits with her, had matured, and was ready, willing, and able to parent G.R. She alleged the caregiver was not properly caring for G.R. and the caregiver was allowing an unauthorized adult male to reside in her home.
At the January 31, 2020, section 388 hearing, the court denied Mother's section 388 petition without an evidentiary hearing finding Mother had not made a prima facie showing. The court commended Mother for beginning to change circumstances, but it commented a beginning does not create a change in circumstances. It found the timing of Mother's progress troubling and noted her improvement only occurred after the initial setting of the section 366.26 hearing. The court acknowledged G.R.'s placement was always an issue, but it could be explored at the section 366.26 hearing. The court also denied Mother's request for additional services.
That afternoon, the court held a contested section 366.26 hearing. The court entered into evidence SSA's reports dated November 12, 2019, and January 21 and 31, 2020. The social worker testified Mother attended 80 percent of her visits, but she did not progress to unsupervised visits. G.R. constantly sought out the caregiver and vied for her attention. The social worker testified she had some concerns about Mother's visits because Mother would inspect G.R. and ask G.R. questions about abuse in the caregiver's home. The social worker opined Mother was searching for reasons to accuse the caregiver of abuse, and said Mother once verbally attacked the caregiver. The social worker testified the maternal grandmother was not authorized to supervise visits after she and Mother attempted to conceal the presence of an unauthorized male companion at a visit and about the ground rules that had to be established at G.R.'s recent birthday party.
The maternal grandmother testified she attended visits with Mother twice weekly and the caregiver allowed maternal grandmother to visit whenever she asked until July 29, 2019. She then attended visits once a week. The maternal grandmother said that at visits G.R. was very happy to see her and Mother, opened her arms to hug them, hugged them tightly, and said "nana" and "mommy." She testified G.R. held onto Mother and was always in her arms. She said Mother helped G.R. to use the restroom, made sure she was okay if she accidentally fell, disciplined her appropriately, and comforted her when she was sad. She said Mother brought snacks, food, and toys to visits, taught her animals, numbers, and letters, and read to her. She testified G.R. told Mother that she loved her and 95 percent of the time G.R. said she wanted to go home with Mother and the maternal grandmother. The maternal grandmother testified when the case began she did not have a home for G.R. so she asked the caregiver to take G.R. until she had a home. She testified she had provided what was needed to get an exemption of her criminal history to allow placement with her, but she did not know if the exemption had been granted. The maternal grandmother testified she wanted to bring G.R. home to be with her family, including Mother.
The maternal grandmother testified she did not think the caregiver was properly caring for G.R. because the caregiver previously would allow her unscheduled visits with G.R. and now she would not. She saw bruises on G.R. during visits and G.R. said her private parts hurt when she went to the restroom. When G.R. arrived at visits, she was not clean about 70 percent of the time. She testified G.R. expressed fear of returning to the caregiver's home by crying.
Mother testified G.R. was always happy to see her, called her "'mommy,'" ran to her at the beginning of visits, and hugged and kissed her. She testified she brought activities to visits, set limits although G.R. sometimes did not listen, instructed G.R. to eat first and then play, disciplined her appropriately, and helped G.R. with things she could not do by herself, like riding a scooter and using the restroom. Mother testified the placement with caregiver was supposed to be temporary. Mother opined the caregiver was not properly caring for G.R.—she was not well cleaned, there were stains on her underwear, and she had infections and rashes on her private parts. G.R. did and said inappropriate things, such as sticking out her butt and saying things like "'booty-butt.'" Mother also observed G.R. with various bruises that concerned her. Mother denied fabricating her concerns to sabotage the present placement. The court continued the section 366.26 hearing until February 3, 2020.
When the hearing resumed, Mother testified she wanted G.R.'s placement changed to her side of the family. Mother said the caregiver told her that she could not handle G.R. During visits, G.R. asked Mother to read books to her, and came to Mother for comfort when she fell down. She spoiled G.R. and the caregiver did not. She did not want G.R. moved to foster care, but the problems were so bad at the caretaker's home, she would rather have her in a foster home and adopted outside the family. Mother later changed her opinion as to outside adoption. She testified that if the placement could not be changed to her side of the family, she wanted G.R. to remain with caretaker. Mother testified she missed visits due to work. She said G.R. was never in danger living with her and G.R. should never have been removed from her custody. She opined G.R. was removed mostly because Mother was scared of Father.
The court found Mother did not meet her burden of proving the parental benefit exception (§ 366.26, subd. (c)(1)(B)(i)). With respect to allegations against the caregiver, the court stated that the caregiver was proactive in removing the concerning influence of the boyfriend from her home. The court declined to determine whether 20 percent of missed visits "constitute[d] regular and consistent visits." The court concluded though Mother failed to establish G.R. would benefit from continuing the relationship based on G.R.'s age (four years old) and her wishes. The court concluded adoption was in G.R.'s best interest, and it terminated parental rights.
DISCUSSION
I. Section 388
Mother argues the juvenile court erred by denying her section 388 petition without an evidentiary hearing because she established a prima facie case of changed circumstances and it was in G.R.'s best interest. The court did not err.
"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. (§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests. [Citation.] [¶] A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citation], the allegations must nonetheless describe specifically how the petition will advance the child's best interests. [Citations.]" (In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.).) We review a court's decision to deny a section 388 petition without an evidentiary hearing for an abuse of discretion. (Id. at p. 1158.)
Here, the juvenile court did not abuse its discretion by concluding Mother failed to establish a prima facie case of changed circumstances. Although the court acknowledged Mother had finally made progress on her plan, the court essentially said it was too little too late. We agree. For one year, Mother made only minimal progress on her case plan. She missed all 18 of her drug tests, which all counted as positive, and she admitted she was still using marijuana. It wasn't until December 2019 after the court set the section 366.26 hearing that Mother sent a text message to the social worker informing her that she was participating in parenting classes and counseling services. But Mother did not claim she participated in a substance abuse treatment program or a 12-step program. Although she claimed she tested for alcohol through probation, her attached documentation showed merely two tests, with no results. Chronic substance abuse is generally considered a serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (In re Amber M. (2002) 103 Cal.App.4th 681, 686 (Amber M.) [no abuse of discretion in denying § 388 petition where mother established only 372 days of abstinence]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 (Cliffton B.) [seven months of sobriety not changed circumstances].)
Mother's documentation demonstrated her parenting and counseling programs were in progress, not completed, and she had not participated in a domestic violence program. At most, Mother's recent two months of work showed she might be ready to get serious about working on her case plan. There was no showing Mother had participated sufficiently in services addressing the core issues in the petition. Merely changing, rather than changed, circumstances, do not fulfill the requirements for a hearing on a 388 petition. (In re Casey D. (1999) 70 Cal.App.4th 38, 47 (Casey D.).)
Because Mother failed to show changed circumstances that would justify the resumption of reunification services, we need not consider the best interests prong. (G.B., supra, 227 Cal.App.4th at p. 1157 [parent seeking modification under section 388 must show "both a change in circumstances or new evidence and the promotion of the child's best interests."].) Thus, the court did not abuse its discretion by denying Mother's section 388 petition without a hearing. II. Section 366.26
Mother contends the juvenile court erred by terminating her parental rights. Not so.
"At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care. (§ 366.26, subd. (b).) Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. [Citation.] The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.]" (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)
"The parental benefit exception applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the 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 Anthony B. (2015) 239 Cal.App.4th 389, 394-39.) "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." (In re Scott B. (2010) 188 Cal.App.4th 452, 469; In re Jason E. (1997) 53 Cal.App.4th 1540, 1548 [emotional attachment must be parent and child and not one of being a friendly visitor or friendly nonparent relative].)
The review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) We will apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether the beneficial parental relationship exists. However, the determination of whether the existence of that relationship constitutes "'a compelling reason for determining that termination would be detrimental to the child'" is reviewed for an abuse of discretion. (Id. at p. 1314.)
The California Supreme Court has granted review to determine the appropriate standard of review in this context. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.)
In In re Autumn H. (1994) 27 Cal.App.4th 567, the court articulated the test for determining whether a child would benefit from continuing a relationship with the natural parent. To succeed under this test, the parent must establish "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." (Id. at p. 575.) In evaluating this issue, the court must "balance[] 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (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 . . . ." (Id. at pp. 575-576.)
As to the first prong, we agree with Mother the juvenile court did not decide this issue. County Counsel acknowledges "[t]he court did not make a clear finding" on this issue but insists the court have based on Mother's irregular and inconsistent visits. Because Mother must satisfy both prongs, and we conclude she has not satisfied the second prong, we decline to decide prong one in the first instance.
With respect to the second prong, while the evidence indicated Mother and G.R. enjoyed a warm and loving relationship and that Mother acted appropriately with G.R. during visits, Mother failed to present any evidence that G.R.'s relationship with Mother was so significant that its termination would cause G.R. any detriment. G.R. was only two-years-old when Mother lost custody of her. G.R. had resided with the caregiver for almost two years when Mother's parental rights were terminated. Despite Mother's consistent statements she planned to reunify with G.R., her actions indicated otherwise.
The court first ordered Mother was allowed six hours of monitored visitation. At the Six-Month Review hearing, Mother had only made minimal progress with her case plan due to her incarceration. Mother's incarceration significantly interrupted visitation with her daughter. After the one visit that occurred at the jail, the caregiver reported G.R. appeared to be sad and anxious as a result of the 20-minute visit. When Mother was released from jail, she resumed her visitation schedule, but she consistently arrived late and appeared to be focused on her cell phone during visits.
During the first six months services were available for Mother, she took little advantage of the services. Despite encouragement from the social worker, Mother did little to improve compliance with her plan. Due to concerns about Mother's alcohol abuse, the court modified Mother's case plan to include substance abuse testing at the six-month review hearing.
Four months later, the social worker reported Mother had missed all 18 scheduled drug tests during the reporting period. Mother was not completing counseling services, drug testing, substance abuse program, 12-step meetings, or a domestic violence program as ordered. Mother was unemployed and said she felt overwhelmed. The only part of the case plan Mother was following was visitation with G.R. And the visits were not without problems. At one visit, Mother placed G.R. at risk when she placed her in the company of an unapproved male adult. Father described the male as Mother's ex-boyfriend and a gang member. Rather than engage in a discussion with the social worker about the incident, Mother chose to yell at the social worker. As a result, visits were moved to Orangewood.
The evidence demonstrated Mother made no significant progress with her case plan in over 18 months. Mother made episodic achievements in her plan, but she never made a sustained and continuous effort to complete any aspect of her plan. Mother should be credited for the positive efforts she did make, such as completing her GED program and attending some classes. But these efforts do not establish Mother had a commitment to addressing the issues that caused the dependency action. In terms of substance abuse issues and her lack of testing, she responded, "What's the use?" This can reasonably be interpreted to mean the tests would come back positive.
At the section 366.26 hearing, Mother testified four-year-old G.R. was never in danger living with her, despite the circumstances that gave rise to the initial detention. She insisted G.R. should never have been removed from her custody. And she opined G.R. was removed mostly because Mother was scared of Father. These statements underscore the fact Mother never appreciated the nature of her misconduct and this likely led to her failure to address her problems. Given Mother's total lack of insight, it is difficult to envision safely returning G.R. to Mother's custody. Although Mother appears to have genuine affection for G.R., Mother essentially did the easy part of her case plan, visiting with G.R., and not the difficult part, completing programs and testing. Mother did not have day to day contact with G.R. She never progressed from supervised to unsupervised visits. Mother candidly admitted, unlike the caregiver, she spoiled G.R. This is more an indication she played the role of a friendly visitor or non-parent relative. We find Mother failed to prove the benefit of continuing a parental relationship outweighs G.R.'s interest in the stability and permanence of adoption.
Mother relies on In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), Amber M., supra, 103 Cal.App.4th 681, and In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon), to contend good progress on the part of the parent justifies application of the beneficial parent-child relationship exception. In S.B. and Amber M. there were bonding studies and other evidence that demonstrated severing the relationship would be detrimental. (S.B., supra, 164 Cal.App.4th at p. 296; Amber M., supra, 103 Cal.App.4th at pp. 689-690.) In Brandon, the grandmother, the prospective adoptive parent, testified it was not in the children's best interests to sever the relationship. (Brandon, supra, 71 Cal.App.4th at p. 1533.) These cases do not help Mother. Rather, they serve as examples of the type of evidence normally required for the court to find the beneficial relationship exception exists and the type of evidence which is lacking here.
At the section 366.26 hearing, Mother expressed concern for G.R.'s welfare in the caregiver's custody. Mother's concerns should be addressed, but they need not be addressed at the section 366.26 hearing. The purpose of this hearing was to determine if there was a compelling reason termination of parental rights would be detrimental to the child. The focus of the hearing was not to evaluate the quality of G.R.'s placement. Once there are adoption proceedings, an inquiry may be made into whether there is any legal impediment to adoption by the caregiver. We note while somewhat equivocal, Mother ultimately testified that if the placement with caregiver could not be changed to her side of the family, she wanted G.R. to remain with the caretaker. Mother's statement does not suggest a serious concern about the care the caregiver is providing G.R.
Based on the record before us, we conclude the juvenile court did not abuse its discretion in terminating Mother's parental rights to G.R. In any event, even if we had solely applied the substantial evidence standard of review, we would have concluded there is substantial evidence to support the juvenile court's determination that the beneficial parent-child relationship exception did not apply in the circumstances of this case.
DISPOSITION
The orders are affirmed.
O'LEARY, P. J. WE CONCUR: IKOLA, J. GOETHALS, J.