Opinion
A149070
03-08-2017
In re A.A. et al., Persons Coming Under the Juvenile Court Law. MENDOCINO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.A. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKJVSQ1517172-74)
C.A. (Mother), mother of twelve-year-old A.D., nine-year-old J.A., and eight-year-old A.A., appeals from a judgment terminating her parental rights to the children. D.A. (Father), father of J.A. and A.A. (but not of A.D.), appeals from a judgment terminating his parental rights to J.A. and A.A. Mother contends the juvenile court erred in denying her petition for reinstatement of reunification services under Welfare and Institutions Code, section 388 (388 petition). Both parents contend the beneficial relationship exception to termination of parental rights applied. We reject the contentions and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On March 3, 2015, Mendocino County Health and Human Services Agency (the Agency) filed a dependency petition on behalf of A.D., J.A., and A.A., alleging the children were at substantial risk of physical harm and/or emotional damage. Mother had a chronic substance abuse history and was charged with being under the influence of a controlled substance and driving without a license. She tested positive for methamphetamines and marijuana. The parents had a history of domestic violence, and Father had recently been arrested on felony domestic violence charges. J.A., who saw Father hit Mother in the jaw, said she wished her parents would "stop beating each other up." Father had been diagnosed with a mental health illness and was taking prescription medications and smoking marijuana several times a day. His functioning appeared impaired on February 26, 2015, and he agreed the children were unsafe in his care. The petition alleged as to A.D. that her father's whereabouts were unknown. The juvenile court detained the children.
A.D.'s father was later located but told the Agency social worker that he had no active relationship with A.D. and had not seen her in eight years. He waived reunification services and did not request a court appointed attorney. --------
An April 2, 2015 jurisdiction report set forth Mother's criminal history, which consisted of her recent arrest for being under the influence and driving on a suspended license. Father had an extensive criminal history that included many arrests in Minnesota from 1994 to 2006 for drug offenses, theft, forgery, burglary, contributing to the delinquency of a minor, tampering with a motor vehicle, a probation violation, and domestic assault. He also had a 2013 arrest and charge for inflicting corporal injury on a spouse and his most recent arrest for perpetrating domestic violence with injury upon Mother. The parents had a child welfare referral history in Lake, Siskiyou, and Yuba counties for substance abuse, domestic violence, and general neglect and emotional abuse of the children.
Mother tested positive for drugs on February 26, 2015, and several times the following month. The Agency social worker received many telephone calls from Mother in which she seemed to be under the influence of methamphetamine. She sounded frantic, disjointed, and tearful, and said that even though Father was in jail, he was being released in the evenings and entering her hotel room and going through her belongings. She said Father was "putting stuff about me on MTV" and "has people following me," and that he had installed surveillance cameras on her phone and television. She reported that Father had physically abused her for many years; she had visible injuries to her face and body. Father reported that Mother was the aggressor and had hit him with a rake, run over his dog, and directed the children to throw rocks at him.
Mother told police that she "wants the kids protected" from Father because he is "bad with the kids" and "spanks them a lot." Father often covered A.A.'s mouth firmly, as if to suffocate him; A.A. told police that it scares him when Father does this. A.D. reported that Father is "mean" and covers J.A. and A.A.'s mouths, covers their heads with blankets and holds the blankets tightly, and forces all of them to lay down on their beds as he pushes their faces into the bedding. A.D. also reported that when she was three or four years old, Father became angry with her for not flushing the toilet and slammed her head onto a counter, causing her chin to split open. When she was six years old, Father dragged her around by the arm, causing her to suffer a fractured arm and pulled muscle; he told her to tell others that the pain was caused by a fall from a bed. When she was about eight years old, Father pulled her by the leg down a flight of stairs, causing her to injure her head.
In October 2015, Father admitted to police that he placed prostitution ads and set up jobs for Mother. He also set the price. He said he "was okay with [Mother] being a prostitute at first" but eventually became jealous, which caused him and Mother to argue. Mother told police she no longer wanted to be a prostitute but felt pressured by Father to continue.
The Agency referred both parents to an intake support group and substance use disorder treatment. The Agency also made a referral for them to receive mental health evaluations and treatment. The juvenile court took jurisdiction over the children on April 8, 2015.
An April 27, 2015 dispositional report set forth the parents' family history. Mother's father was abusive and had a substance abuse problem. She was molested by a stepfather and began using cocaine; she then became addicted to pain medication and methamphetamine. She left a drug treatment program after one month and relapsed when Father asked her to smoke methamphetamine with him. She had never been in a healthy relationship; A.D.'s father " 'pimped' her out to other men" and abused her to the point where she lost consciousness and woke up bleeding from her eyes. She married A.D.'s father while he was in prison. She then entered into a romantic relationship with Father, who was A.D.'s father's cell mate in prison. Her relationship with Father was "rocky," and they had many physically violent fights.
Father reported that his childhood was "pretty good" but that he was molested as a child. He began using drugs after high school and "stole stuff" while spending time "with a rougher druggie crowd." He had a third child whose birth date he could not recall, and said he and the child's mother broke up because of the mother's methamphetamine use. He reported that his current relationship with Mother was "great" but that he had "never been able to fully trust her." He said he could not obtain employment because he needed to keep an eye on Mother, who would otherwise abuse drugs and "go spend time with 'druggies.' " He denied ever "laying hands on [Mother] in a violent manner."
The children were doing well in their foster homes; the Agency had assisted them in becoming up to date with their medical and dental needs and had referred them to therapy. None of the children had physical or developmental issues, although J.A. was struggling academically and had an independent education plan.
Both parents were engaged in substance abuse treatment services, and Father had begun weekly therapeutic counseling sessions. Mother was attending all recommended appointments and had applied for housing. The Agency was concerned that Father had not admitted to perpetrating domestic violence.
Mother was visiting the children once a week for one hour. She spent much of the visits redirecting A.A., who had frequent tantrums. Father was visiting the children twice a week for one hour per visit. He engaged the children in appropriate play and the children appeared happy and comfortable. At disposition, the juvenile court declared the children dependents, ordered that they remain in out of home care, and ordered the parents to participate in family dependency drug court (drug court). At a July 21, 2015 interim hearing, Father was ordered out of drug court for breaking confidentiality rules.
According to an October 1, 2015 six-month-review report, Mother had been slow to engage in services. She had completed eight weekly groups at Ukiah Family Center, where the facilitator said her prognosis was, "Guarded, the situation with her partner makes it difficult to predict if they will be successful together." She had only partially completed several programs and had not attended Breaking the Cycle and Communication classes since July 2015. Another facilitator reported that Mother was "so focused on the relationship with her husband that she doesn't seem to have a lot of energy left to focus on how to protect and provide for her children." Mother had left a women's shelter and had failed to follow through on applying for subsidized housing. She was staying with Father, who told her not to tell the Agency where they were living. Mother reported she had not used drugs since April 16, 2015, but failed to show up to drug testing on two occasions, which were considered "sanctionable offenses" in drug court. She was scheduled to be "phased back to Phase 1" of drug court and possibly face other sanctions. Mother completed her psychological evaluation in which the doctor noted that Mother's greatest challenge was to develop her own sense of self and to see her relationship with Father as abusive and demeaning.
Father was out of compliance with most of his case plan. He completed a psychological evaluation in which the doctor noted that Father's greatest challenge was his "manipulative qualities" and lack of empathy towards Mother and the children. Father was adamant that he had never been violent. He was living with a marijuana user and did not respond to the Agency's requests for drug and alcohol testing.
A.A.'s placement had changed three times since the last hearing; all of the children had adjusted well to their homes. Both parents were regularly visiting the children. The quality of Mother's visits were "limited in that [she] rarely demonstrated a healthy parental role" and "fail[ed] to put the children's needs ahead of her own." Father's visits were suspended twice because he made unrealistic promises to the children and allowed them to watch videos that promoted violence. He was manipulative and condescending towards staff in front of the children. He did not meet with the social worker to reinstate visits and had not seen the children since August 27, 2015. At the six-month-review hearing, the juvenile court continued reunification services for both parents.
According to a March 10, 2016 twelve-month-review report, Mother "continued to remain lackadaisical with her engagement in services." She relapsed in November 2015, had not completed parenting classes, and had not obtained suitable housing. She left a women's shelter for the third time and moved back in with Father. Father continued to be out of compliance with most of his case plan. He and Mother were living with a roommate who was arrested for sexual acts with a minor. The parents had maintained consistent contact with the children but their visits remained supervised due to their inability to place the children's needs before their own. A.D. said she did not want to visit Mother. Mother rarely demonstrated a parental role. Father "rarely demonstrate[d] desired behaviors with his children."
The Agency recommended that reunification services be terminated and the matter be set for a permanency hearing under section 366.26 (366.26 hearing). The juvenile court adopted the Agency's recommendations.
In a July 5, 2016, 366.26 hearing report, the Agency reported that J.A. and A.A. were living together in a pre-adoptive home. A.A. had been living there since September 8, 2015, and was "significantly bonded" to the caregivers. J.A. had joined him there on May 29, 2016; the caregivers were committed to caring for both children long term, and the home was being assessed by a state adoptions worker. A.D. had been in her home since March 26, 2015, with caregivers who wished to adopt her. All three children understood the concept of adoption and wanted to be adopted by their current caregivers. They did not ask about Mother and Father in between visits. J.A. said she wanted "forty billion" more visits with her parents; A.A. "only wanted two more visits with them and then wanted to get adopted." The adoption workers opined that any incidental benefits to maintaining the children's relationship with their parents were insufficient to outweigh the benefits of adoption.
Mother and Father were each visiting the children twice monthly for one hour supervised visits, and the visits were "appropriate in nature." A.D.'s visits with Mother had been reduced to once per month, per A.D.'s request. The children's adoption assessment reports stated they were all adoptable.
On July 13, 2016, Mother filed a 388 petition requesting reinstatement of reunification services on the ground that she had completed outpatient drug treatment and had made substantial progress in individual and couple's counseling. She asserted "[t]he children should be raised by their birth parents," and attached letters from therapists stating, among other things, that her "self esteem and assertiveness have increased during the time she has been in therapy," that she "approaches her therapy with determination and genuineness," and that she and Father "feel strongly that their relationship has greatly improved."
On July 14, 2016, Father filed a 388 petition requesting that the children be returned to him or that he be given additional reunification services. He reported he had been attending individual counseling as well as family counseling with Mother. Visits were going well and he had a "very positive relationship with his children."
On August 4, 2016, the juvenile court denied both 388 petitions, terminated Mother's parental rights to A.D., J.A., and A.A., terminated Father's parental rights to J.A. and A.A., and selected adoption as the children's permanent plan.
DISCUSSION
388 Petition
Mother contends the juvenile court erred in denying her 388 petition. We disagree.
"The juvenile court has broad discretion whether to sustain [a 388] petition to modify its prior order. The court's determination will not be disturbed absent an abuse of discretion." (Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068.) When a 388 petition is filed after reunification services have been terminated, the court must evaluate the motion in light of evolving priorities of the dependency process. "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
Here, Mother was slow to engage in services, and even at the twelve-month-review, the Agency described her as being "lackadaisical with her engagement in services." She relapsed in November 2015, did not fully engage in services, did not complete drug court, and did not find suitable housing. Each time she entered a women's shelter, she left and returned to Father. Although it is commendable that she completed outpatient treatment and made some progress in individual and couple's counseling, she had yet to complete many of the other classes and programs that were designed to address the issues that brought the family into the dependency system. There was also little indication she would be able to protect the children from Father, who had not followed through with most of his case plan objectives, and with whom she continued to live. Under these circumstances, and in light of the children's need for permanency, the juvenile court did not abuse its discretion in finding there were no changed circumstances justifying reinstatement of reunification services.
Beneficial Relationship Exception
Mother and Father each contend the beneficial relationship exception to termination of parental rights applied. We disagree.
At the 366.26 hearing, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. . . . If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
The beneficial relationship exception provides that termination of parental rights may be detrimental to the minor 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).) The benefit to the child 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. . . . 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "Even frequent and loving contact is not sufficient to establish this benefit absent a significant, positive emotional attachment between parent and child." (In re I.R. (2014) 226 Cal.App.4th 201, 213.) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
Appellate courts have adopted differing standards of review for the beneficial relationship exception determination; some courts have applied a standard of substantial evidence, while others have reviewed for abuse of discretion. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.) Others have applied a hybrid approach in which they review factual findings for substantial evidence, conclusions of law de novo, and application of the law to the facts for abuse of discretion. (In re C.B. (2010) 190 Cal.App.4th 102, 123.) The distinction between these standards is immaterial in this case because the juvenile court's ruling was appropriate under any standard.
In support of their contentions, the parents focus on the fact that they regularly engaged in visitation and that the visits were overall positive. While it is true they regularly visited the children, visitation remained supervised throughout the proceedings and never expanded beyond one-hour visits, due to the parents' lack of progress in their case plans and their inability to place the children's needs over their own. At the time of the adoptions assessment, visitation had been reduced to one-hour visits, twice a month. The Agency described the visits as being mostly "appropriate in nature," but there was little indication that the bond between either parent and any of the children was so strong that severing the relationship would deprive the children of a "substantial, positive emotional attachment such that [they] would be greatly harmed" if they were adopted. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Both parents rely on In re S.B. (2008) 164 Cal.App.4th 289, 293, 298, but there, the child's father, who had "complied with every aspect of his case plan," had an emotionally significant relationship with his child and was able to consistently put the child's needs and safety before his own. Both parents also cite In re Amber M. (2002) 103 Cal.App.4th 681, 689, but there, the mother's bond with her child was both strong and uncontested; a bonding study concluded the two shared " 'a primary attachment' and a 'primary maternal relationship,' " and CASA and the child's therapist reached similar conclusions. There was no evidence presented in this case of a similar, significant bond between either parent and any of the children.
Moreover, the juvenile court had ample countervailing evidence from which it could infer that the bond between the parents and the children did not create the sort of "extraordinary case" which would make adoption detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 397.) While the children had spent most of their lives with their parents, that time was marred by manipulation and domestic violence. The children witnessed Mother being beaten by Father, and were themselves subject to harsh spanking and suffocation. Father physically abused A.D. on multiple occasions and continued to engage in manipulative behavior while the case was pending. At the time of the 366.26 hearing, the children had not lived with their parents in approximately a year and a half, and were doing well in their respective homes. They did not ask about their parents in between visits, and an adoptions worker opined that any incidental benefits to maintaining the children's relationship with their parents were insufficient to outweigh the benefits of adoption. In this context, the court could reasonably determine that the parent-child bond was insufficient to form a compelling reason to override the statutory preference for adoption.
DISPOSITION
The judgment terminating Mother's parental rights to A.D., J.A., and A.A., and terminating Father's parental rights to J.A. and A.A. is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.