Opinion
F073744
02-27-2017
In re L.H. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. A.Q., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Kelli R. Falk, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 129898, 129899)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Theresa A. Goldner, County Counsel, and Kelli R. Falk, Deputy County Counsel, for Plaintiff and Respondent.
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A.Q. (mother) appeals from the juvenile court's order terminating her parental rights to her children L. and G. Mother contends the juvenile court erred in concluding that the beneficial relationship exception to adoption was not established. We affirm.
In this opinion, certain persons are identified by abbreviated names and/or by status in accordance with our Supreme Court's policy regarding protective nondisclosure. No disrespect is intended.
STATEMENT OF THE FACTS AND CASE
In October 2012, one-year-old L. and five-month-old G. came to the attention of the Kern County Department of Human Services (department) after a referral was received alleging ongoing substance abuse and domestic violence by mother and R.H. (father). An investigation revealed both mother and father were using methamphetamine and engaging in domestic violence with each other. Mother said she was grieving the loss of another child, and she admitted to the social worker that she did not feel as bonded with L. and G. as she had to her son who died in January 2012, while in maternal grandmother's care. As a result, L. was spending "most of her time" with paternal grandfather and his wife. Mother had a history of methamphetamine use and denied current use, but tested positive for methamphetamines.
Father is not a party to this appeal.
The parents agreed to voluntary family maintenance services but were not successful. On December 14, 2012, mother was taken into custody on an outstanding warrant and L. and G. placed into protective custody. At the time of her arrest, mother drug tested positive for methamphetamine.
The department filed a Welfare and Institutions Code section 300 petition December 18, 2012, alleging the children were at risk of harm due to mother and father's substance abuse and domestic violence, as well as mother's incarceration. Jurisdiction in February 2013 was uncontested. The department dismissed the allegation of mother's incarceration, as she was no longer in custody. The allegations of substance abuse and domestic violence were found true.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother requested a contested dispositional hearing as she wanted family maintenance services. At this point, mother was engaged in counseling and testing clean. But mother did not have stable housing. She had moved in with a new boyfriend, but moved out when he began yelling at her. By the time of the disposition hearing March 19, 2013, mother was back with father.
At the disposition hearing March 19, 2013, the children were ordered removed from mother and father's custody. Family reunification services were ordered. Mother was to complete counseling for substance abuse, domestic violence as a victim, parenting and child neglect counseling, and submit to drug and alcohol testing. Mother's supervised visits with the children were to occur two times a week for an hour.
In June 2013, mother filed a section 388 petition requesting the children be returned to her with family maintenance services. The department initially opposed the request. Although mother completed some of her counseling, the department was unsure whether mother had had enough time to receive adequate education about forming positive relationships and protecting her children from domestic violence. Mother was still in a relationship with father, who had made no progress in his case plan. Mother was also in a relationship with a new boyfriend and considering moving in with him. Mother had missed three drug tests.
The hearing on the section 388 petition was continued until August 2013 and, by that time, mother's boyfriend's background had been checked and cleared, her housing was acceptable and she submitted another negative drug test. The department recommended the section 388 petition be granted. On August 12, 2013, the juvenile court granted mother's petition, and the children were placed with her with family maintenance services. Mother was ordered to continue to submit to drug testing.
The first review of mother's family maintenance plan was scheduled for February 2014, but was not heard until June of that year. By this time, mother delivered another child. During the review period, mother failed to submit to drug testing on four occasions, claiming that she was unable to do so due to complications with her pregnancy, a claim refuted by her doctor's office. Also during this review period, mother and her boyfriend where engaged in an argument that resulted in boyfriend rolling up the car window on mother's fingers. Family maintenance services were ordered continued.
Over the next six months of family maintenance, mother's situation continued to deteriorate. She missed 13 additional drug tests and was referred to substance abuse counseling, but failed to enroll. Mother did not have stable housing and she and the children moved in with her mother and step-father, even though mother alleged her step-father sexually abused her as a child. Mother's now ex-boyfriend took their baby son from her. In February 2015, the juvenile court ordered family maintenance service continued. Mother was ordered to participate in random drug testing and substance abuse counseling.
In May 2015, L. and G. were removed from mother in Los Angeles County where mother was arrested for domestic violence. Mother and her boyfriend, who were residing in Los Angeles, were arguing in their residence when mother put her arms around her boyfriend's neck and he bit her to get her to let go. Mother then followed him to his car and pushed the car door, which hit him in the head. L. and G. were reportedly present in the home but asleep at the time. Mother told law enforcement this was not the first domestic violence occurrence between herself and her boyfriend.
L. and G. were brought back to Kern County and a section 387 petition filed alleging the children were at risk of harm due to mother's continued involvement in domestic violence, her substance abuse issues, and her failure to provide stable housing. Since receiving services in August 2013, mother failed to drug test 31 times, failed to enroll in substance abuse counseling, and was unable to maintain stable housing for her or the children.
The children were ordered detained and supervised visits ordered twice a week. The social worker tried, without success, to set up visitation between mother and the children, including a visit set up for L.'s birthday. Mother informed the social worker she intended to stay in Los Angeles and would only be able to visit once or twice a month. Mother continued her relationship with her boyfriend, with whom she was now expecting a child. Mother claimed the domestic violence incident between the two was an accident.
At the June 2015 jurisdiction hearing, which mother attended, the allegations of domestic violence and substance abuse were found true. At disposition in August 2015, the children were removed from mother's custody and services were ordered terminated. Supervised visits between mother and the children remained at two times a month. A section 366.26 hearing was calendared for December 3, 2015, to determine a permanent plan for the children.
The section 366.26 hearing did not take place until April 2016. The social study prepared in anticipation of the hearing recommended parental rights be terminated and the children ordered into a plan of adoption. The children had been placed with a paternal aunt since August 2015, who wished to adopt them. The children were determined to be generally adoptable. Mother attended 51 of a possible 75 visits available to her during the span of the children's dependency.
The social study documented four visits that occurred over the course of dependency. In the first visit in December of 2012, L. cried when the visit was over because she could not go with mother. The next visit documented was in April 2013, which was appropriate and uneventful. The next two documented visits occurred in September and October 2015, after the children were removed from mother the second time. During these visits, the children ran to mother and gave her hugs, mother played with the children and asked them questions. But the social worker also had to intervene and ask mother to get off her phone with her boyfriend and spend the time with the children. The adoption social worker noted visits with mother were generally positive, but at times, mother had minimal interaction with the children on days her energy level was low. While mother made some effort to discipline the children, they challenged her authority. The adoption social worker opined that the visits had not been enough to establish a substantial bond with mother and recommended parental rights be terminated.
The social worker stated the children looked to their current caretaker, the paternal aunt, as their primary parental figure. During visits to the aunt's home, the social worker observed the children were attached to their aunt, respected her, wished to interact with her and, when they did, did so appropriately. The aunt was able to identify the children's strengths and weaknesses. When asked, L. said she wanted to live with her aunt.
The aunt said she was motivated to seek adoption for the children as she had genuine affection for them and did not want to see them placed with mother only to be taken from her again. The paternal uncle, who also lived in the home, had a significant relationship with the children.
Mother testified at the April 25, 2016, hearing that the children were excited to see her when she visited and gave her kisses. Mother testified she tried during visits to teach the children to count and speak in Spanish. Mother noted that L. was more affectionate with her than G. was, and that G. had begun calling her by her first name. Mother acknowledged that when she first began visits with the children, they would cry and want to go with her, but they got used to it after a while and were currently reluctant to leave visits "[s]ometimes." Mother did not believe her parental rights should be terminated and that the children would benefit from continued contact with her, due to their separation issues.
On May 10, 2016, the juvenile court issued its ruling. In doing so, the juvenile court stated that, while mother had visited regularly and did have a bond with the children, it was not sufficient to meet the burden of the beneficial relationship exception. While the juvenile court found mother had visited regularly, with the exception of when she was unable to do so due to pregnancy complications, it found the children would benefit from a permanent adoptive home, the court noted the children's age's, time spent with mother, the effect of the interaction on them, as well as mother's domestic violence history and her lack of progress in addressing her substance abuse and domestic violence issues. The juvenile court found the children likely to be adopted, ordered parental rights terminated, and referred the children for adoptive placement.
DISCUSSION
BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION
Mother contends the juvenile court erred in concluding that the beneficial relationship exception to adoption was not established when it terminated her parental rights. We disagree
Applicable Law
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) One of these statutory exceptions is the beneficial relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that "[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).)
"'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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."'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some "'emotional bond'" with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a "'"parental role" in the child's life.'" (In re K.P., at p. 621.) Factors to consider include, "'"[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."'" (Marcelo B., supra, 209 Cal.App.4th at p. 643.)
The parent has the burden of proving the statutory exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) The juvenile court's decision a parent has not satisfied this burden is based on whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B)(i).)
Appellate courts have adopted different standards of review for the beneficial parent-child relationship exception, with some reviewing for abuse of discretion and others reviewing for substantial evidence. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300 (Noah G.).) Recently, appellate courts adopted a mixture of both standards, reviewing the existence of the relationship for substantial evidence and the application of the exception for abuse of discretion. (Id. at pp. 1300-1301.) We find no error under any of these standards of review.
Analysis
Mother argues she established both prongs of the beneficial relationship exception and that the record in this case is supportive that her children would best benefit from a continued relationship with her. We disagree.
In addressing the beneficial relationship exception, the juvenile court stated mother "visited regularly with the exception of when she was unable to visit because she was hospitalized with complications with her pregnancy." From this we assume, for purposes of this decision, that the trial court found mother established the visitation prong of the exception. We make this assumption because, for reasons discussed below, it is clear that there is substantial evidence to support the juvenile court's findings that the bond between mother and the children does not rise to the level which would make termination of parental rights detrimental to the children and which outweighs the benefits of adoption.
To begin with, as the juvenile court noted at the section 366.26 hearing, the children were bonded to their caregiver, a paternal aunt, and looked to her for their emotional needs. The aunt had been their caregiver for nine months at the time of the section 366.26 hearing, and was committed to adopting the children and help them establish their sibling bond. L. expressed a desire to stay with the aunt. G. was too young to express her feelings on the matter.
There is considerable evidence in the record that supports the juvenile court's finding that there was not a parent-child relationship between mother and the children. Mother points to various instances during visits in which the children looked to her for comfort, were sad when she left, and when she fixed their hair, changed diapers, taught them Spanish, and asked them about their home life. While mother's visits were generally positive and the children were affectionate with her, there was no indication that the bond with mother was such that continued contact with her would outweigh the benefit the children would receive by having a permanent adoptive home. The social worker opined that the visits had not been enough to establish a substantial bond with mother. The adoption social worker recommended termination of mother's parental rights as it would not be detrimental to terminate her rights compared to the benefits of a permanent adoptive home for the children.
In addition, the record specifically reflects that mother faced serious ongoing challenges impeding her ability to parent. The juvenile court noted mother's "domestic violence history; her lack of progress in addressing her substance abuse issues; and her domestic violence issues" in its reasoning terminating her rights. Mother had had amply time and opportunity to address these issues, which were the cause for her children's removal from her custody both times. During the three and a half years of dependency, mother missed 31 drug tests, failed to enroll in substance abuse counseling, and continued to be involved in domestic violence in her relationships.
We are not persuaded by mother's argument that the juvenile court's focus on mother's shortcomings as a parent is misguided, on grounds that, at a section 366.26 hearing, the juvenile court should not give weight to her circumstances because neither the children's return to her nor reinstatement of reunification services were at issue. Clearly, however, a parent's alleged "shortcomings" are relevant to determining whether the beneficial relationship exception applies. (See, e.g., Noah G., supra, 247 Cal.App.4th at p. 1302 [juvenile court "could properly focus on the mother's unresolved substance addiction issues," in determining whether the beneficial relationship exception applied].)
Accordingly, we conclude the juvenile court did not err when it found that the beneficial parent-child relationship exception does not apply to preclude the termination of mother's parental rights.
DISPOSITION
The judgment terminating mother's parental rights is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
FRANSON, J.