Opinion
G059407
02-26-2021
In re CATHERINE T. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. B.A., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 18DP0905, 18DP1273) OPINION Appeal from an order of the Superior Court of Orange County, Jeremy D. Dolnick, Judge. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
* * *
The juvenile court terminated the parental rights of B.A. (Mother) following a permanency placement hearing. (Welf. & Inst. Code, § 366.26.) On appeal, Mother's only contention is the juvenile court erred in finding she did not establish the beneficial relationship exception to the statutory preference for adoption of her now two-year-old and five-year-old children.
Subsequent statutory references are to the Welfare and Institutions Code. --------
We find no errors and affirm the juvenile court's order.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2018, Mother babysat her roommate's four children. When the roommate returned home, her one-year-old son had suffered severe burns on his legs, buttocks, and lower back. The roommate took her son to the emergency room where it was discovered that the burns were caused by hot water immersion.
The police arrested Mother who was then six months pregnant. The police took Mother's two-year-old child, Catherine, into protective custody. The Orange County Social Services Agency (SSA) placed her into a foster home, where she remains to this day.
Removal Proceedings
On August 22, 2018, SSA filed a juvenile dependency petition. The petition alleged that Mother had two other children that had previously been removed from her care due to her drug use. At the detention hearing, the juvenile court found Catherine came within the provisions of section 300 and ordered her detained. The court granted Mother a minimum of 10 hours of supervised visitation per week.
On November 28, 2018, SSA filed an amended jurisdictional petition. The petition included allegations that Catherine's father Orlando M. (Father) had abused substances with Mother. The juvenile court sustained a modified version of the petition, removed Catherine from the custody of her parents, and granted the parents reunification services and monitored visitation.
On November 29, 2018, Mother gave birth to Destiny. Toxicology screening tested positive for amphetamine. SSA filed a juvenile dependency petition as to Destiny, who was later placed in the same foster home as Catherine. The juvenile court sustained the petition, granted the parents reunification services and ordered 10 hours of supervised visitation per week.
Reunification Period
In June 2019, there was a six-month review hearing as to Catherine. SSA reported Mother had generally participated in her case plan but Mother had failed to drug test several times, tested positive for opiates in December 2018, and positive for alcohol in January and February 2019. SSA told Mother she needed to enroll in an outpatient program. Mother's supervised visitations with the children were generally going well. Mother had been enrolled in Health Care Agency Perinatal, but she was terminated for not showing up.
In August 2019, there was a six-month review hearing as to Destiny. Mother was not participating in some aspects of her case plan, was not drug testing, and was increasingly late to visits. Father had pleaded guilty to a domestic violence charge and had ceased visitation and contact with SSA. The court found that Mother had made moderate progress in her reunification plan.
In late 2019, Mother tested positive for methamphetamine and for alcohol. SSA reported Mother had not completed any services and had been re-referred to individual counseling. Mother was maintaining contact with Father in violation of a restraining order. As far as visitations, SSA stated Mother had cancelled visits for invalid reasons and was frequently late. By early 2020, Mother had difficulty supervising the children during the visits, was caught sleeping during one visit, and the children were having problems adjusting after their visitations with Mother.
On January 24, 2020, the juvenile court terminated reunification services and scheduled a permanency planning hearing for May. However, the court ordered SSA to keep existing services and referrals open for Mother until the date of the section 366.26 hearing. Postreunification Period and 366.26 Hearing
Prior to the section 366.26 hearing, SSA reported Mother had tested positive for amphetamine and/or methamphetamine three times in January, twice in February, and once in March 2020. The program was modified in March due to the COVID-19 pandemic. At this time, the visitations transitioned to video. Mother had difficulty keeping the children engaged during these visitations. At times there were unknown people in the background, which made the girls feel uncomfortable. Mother at one point had a visit while she was driving. As for the caregivers, they were willing to adopt both children. Catherine and Destiny were affectionate toward the caregivers, their needs were being met, and the girls had also established strong connections with the other children in the caregivers' home.
On September 4, 2020, the juvenile court conducted the section 366.26 hearing (there had been numerous continuances). After hearing argument, the court found Catherine and Destiny to be adoptable and identified adoption as the permanent plan: "In this case both minors have been found to be generally and specifically adoptable, and also it is noteworthy that the minors are placed with caregivers that have expressed a desire and willingness to adopt both of these children."
As far as the parental bond (benefit) exception, the juvenile court quoted several holdings from relevant case law and then stated:
"As applied to our case, I do find that neither parent has proven a detriment that would preclude the minors from being adopted by the caregivers.
"From reviewing all the records and visitation records, it's clear that father has not maintained regular and consistent contact with the children; and therefore, the father cannot establish the first element of the exception.
"In regards to the mom, although it is arguable whether or not mother has maintained regular and consistent contact as defined by the case law, she has not met her burden as to the second element [the parental bond]. Destiny has spent her entire life in the custody of the caregivers. Catherine has been with the current caregivers since August of 2018, when she was three and a half years old, and she is now five and a half years old. She's been with the caregivers for over two years.
"The interaction between the mom and the minors during the visitation can be described as largely positive, coupled with several concerns highlighted by county counsel and minor's counsel during their arguments.
"Mother's tardiness and occasional missed visits had a negative emotional impact on the minors. The mother complained that she hasn't gotten better quality visits due to Covid. But even though mom's in-person visits were occurring pre-Covid, she was never able to get to either unmonitored or overnights, because she's unable to alleviate the concerns that would have led to her getting better visitation. It was not on S.S.A., but on mother herself.
"The fact that she only has video visitations now is not what led to mom's inability to establish that this exception applies. Undoubtedly, mom loves the minors and the minors love mother, but that is not enough to overcome the law's preference of adoption."
II
DISCUSSION
"The purpose of the California dependency system is to 'provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, . . . and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' [Citation.] The dependency system is child-centered and is designed to protect the child, reunify the family where safe for the child and find a permanent home for the child when reunification is not possible. Its guiding light is the child's best interests." (In re Y.M. (2012) 207 Cal.App.4th 892, 913; see § 300.2.) If reunification with the family is not possible and the juvenile court terminates reunification services, the focus of the proceedings "'shifts to the needs of the child for permanency and stability.'" (In re Celine R. (2003) 31 Cal.4th 45, 52, quoting, In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
At the permanency planning hearing, the juvenile court determines a permanent plan for the child, and may order one of three alternative plans: adoption, guardianship, or long-term foster care. (§ 366.26, subd. (b); see In re J.C. (2014) 226 Cal.App.4th 503, 528.) If the child is adoptable, "'there is strong preference for adoption over the alternative permanency plans.'" (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) If the court finds that the child is adoptable, then the court must terminate parental rights. (See § 366.26, subd. (c)(1).) "[T]o avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply." (In re Anthony B., at p. 395.)
Mother argues that the juvenile court erred in finding that the benefit exception did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We disagree.
The benefit (or parental bond) exception exists where "[t]he 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), italics added.) In deciding whether the exception applies, "'the 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.'" (In re J.C., supra, 226 Cal.App.4th at pp. 528-529.) "'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.)
In addition, the parent-child relationship must "'promote[] 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.'" (In re J.C., supra, 226 Cal.App.4th at pp. 528-529.) The factors the juvenile court considers in making this case-by-case assessment include: "'The age of the child, the portion of the child's life spent in the parent's custody, the . . . effect of interaction between parent and child, and the child's particular needs . . . .'" (In re G.B. (2014) 227 Cal.App.4th 1147, 1165-1166.)
The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) "It is not enough to show that the parent and child have a friendly and loving relationship." (In re J.C., supra, 226 Cal.App.4th at p. 529.) "'"[A] child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent."'" (Ibid.)
We apply a mixed standard of review to the juvenile court's determination whether the benefit exception applies. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) When the court determines that a parent has not satisfied his or her burden of proof, we decide whether—as a matter of law—the evidence compels a contrary finding. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) When the court determines that a parent has satisfied his or her burden, we apply the substantial evidence standard of review. (In re K.P., supra, 203 Cal.App.4th at pp. 621-622.) Finally, if the court concludes there is a beneficial relationship, but that the benefit to the child is not sufficiently compelling to outweigh the benefit of adoption, we review that conclusion for abuse of discretion. (Ibid.; accord, In re Anthony B., supra, 239 Cal.App.4th at p. 395.)
Here, the juvenile court found that the "visitation" component of the child benefit exception was "arguably" met. However, the court found that the children's relationship with Mother did not rise to the level required under the statutory exception.
Mother's moderate performance on her visitations and reunification plan negatively affected her ability to create the kind of significant parent-child relationship required for the benefit exception to apply. By the time of the section 366.26 hearing, Catherine had spent most of her life out of Mother's parental care. And Destiny had effectively spent her entire life with her prospective adoptive parents in the same home as her sister Catherine. Although Mother's visits were usually positive, both girls have reportedly bonded well with their prospective adoptive parents and their larger family. That is, there is no indication that Mother occupied a uniquely parental role in the girls' lives. (See In re G.B., supra, 227 Cal.App.4th at pp. 1165-1166.)
Based on the record we cannot find—as a matter of law— that the evidence compels a contrary finding. (See In re I.W., supra, 180 Cal.App.4th at p. 1528.) Further, there is substantial evidence to support the juvenile court's ruling, as well as the overriding statutory preference in favor of adoption. (See In re G.B., supra, 227 Cal.App.4th at pp. 1165-1166 [""'it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement"'"].) Finally, the court's ruling discloses that it applied the relevant case law to the facts in this case and it did not reach its decision in an arbitrary or capricious manner.
Thus, the juvenile court properly found the benefit exception did not apply and the court did not err in ordering the termination of Mother's parental rights. The published opinions cited by Mother throughout her briefing are unpersuasive. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [the lower "court properly concluded no exceptional situation existed to forego adoption"]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [although parents had frequent and loving contact with children, this was insufficient "to establish the 'benefit from a continuing relationship' contemplated by" the statutory preference for adoption].)
III
DISPOSITION
The juvenile court's order is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.