Opinion
G055607
03-29-2018
In re CHRISTOPHER H. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. G.T., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16DP0346, 16DP0347) OPINION Appeal from orders of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed. Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
* * *
This is an appeal by G.T. (the mother) of dependent children Christopher H., Jr., and Emilia H. (collectively the children) after the juvenile court terminated parental rights. She argues the court erred by failing to invoke Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), the so-called "benefit exception" to termination of parental rights. The court found that although she met the first requirement for this exception to apply, regular visitation and contact, she did not meet the second: demonstrating that the children would be greatly harmed if parental ties were severed. We find no error and therefore affirm the orders.
Subsequent statutory references are to the Welfare and Institutions Code.
I
FACTS
We focus on the facts relevant to the mother and the limited issue she raises on appeal. The children were detained in April 2016; Christopher was eight years old at the time, and Emilia was four years old. The petition alleges failure to protect under section 300, subdivision (b)(1), based on allegations that the mother left the children alone overnight, unresolved substance abuse and domestic violence. Further, the petition alleged, Christopher's school attendance was inconsistent. The petition also alleged abuse of a half-sibling by the mother (§ 300, subd. (j)). Her parental rights as to that child were terminated in 2007, and the sibling was adopted.
At the detention hearing, the court ordered liberal supervised visitation and drug testing for the mother. The children remained in an emergency shelter home under the Orange County Social Services Agency's (SSA) custody. The caregiver reported that during visits, the mother would bring food and toys and engage in various activities with the children. The caregiver also said the mother would "put fear" into the children by asking if they were afraid of things, such as the dark. Christopher said the visits with the mother were "'super, awesome"" and that he missed the mother and wanted to live with her. Emilia also said she wanted to live with the mother.
Numerous concerns arose about the visits, including the mother leaving Christopher alone on the playground on an outing to the park while she took Emilia to the restroom. At another visit at a facility visitation room, the caregiver reported that the mother allowed Emilia to be "'abusive'" toward Christopher and that Emilia would cry when confronted with her behavior. Emilia attempted to leave the room and the mother tried to get Christopher to follow. He did not want to, so the mother left him unattended. When the caregiver intervened, the mother responded badly and told the caregiver to "'stay out of my visit.'"
The jurisdiction/disposition report, dated May 12, noted that the children appeared to love their mother and had expressed their desire to reunify, and that the mother "seems to be trying to be a good mother to her children." The mother cooperated with SSA and expressed her own desire to reunify. The report nonetheless noted: "It appears that the mother is well intended but due to her long standing history of substance abuse, criminal activity and her failure to reunify with her previous child, it is unlikely that the mother will benefit from services at this time." SSA recommended bypassing services and setting a hearing under section 366.26. An addendum to the report a few weeks later noted that the mother had been taken into custody in late April on various drug-related charges, and was serving 30 days of jail time following a guilty plea. She missed five drugs tests in May.
At the jurisdiction hearing on May 26, the mother pleaded no contest. The court found the children came within the court's jurisdiction pursuant to the petition's allegations. A disposition hearing was set for June 30.
On May 31, the social worker met with the children at their foster home. The caregiver reported that Christopher had been asking for the mother and wanted to know why she had not visited him. Christopher said his placement was "'good'" and that he liked "'being safe here.'" Emilia also said the placement was "'good'" and shared with the social worker that she had observed her parents fighting in the past. She did not want her father to hit her mother.
Approximately a month later, the caregiver informed the social worker that she was no longer willing to supervise the mother's visits. During the last visit, the mother was uncooperative, swore at the caregiver and told her that her visits were not monitored, and called a person sitting on a bench in the park a "'f—ing weirdo.'" Visits were rescheduled for twice a week for four hours each at a visitation center.
The visit supervisors reported that the visits during this period, which were with both parents, generally went well. The mother would bring food and drinks, and she would play games and watch movies with the children. She braided Emilia's hair and played dress up with her.
On one occasion, the mother and Christopher got into an argument over a nickname, and Christopher cried, telling the mother he wanted to go home. The mother gave him a hug. Christopher avoided the mother for a time, but eventually went back to converse with his parents. The mother checked on him after he hurt his foot kicking a soccer ball.
During this time, the mother missed two drug tests and tested negative on two other occasions.
On July 25, the court declared the children dependents and ordered further services for the parents. A six-month review hearing was set for January 2017.
In the report prepared for the six-month review hearing, the social worker noted the mother was "'bouncing around'" from friend to friend and to motels. She had neither steady housing nor a regular income. The mother also had additional arrests during this period for drug and theft offenses. Though she participated in some services, she missed appointments for others, and she had a positive test for opiates in October and for methamphetamine in November.
Both children struggled with behavioral difficulties during this period, which we need not go into in depth. They resulted in Emilia being moved to Boys Town - Tustin Family Campus after an incident of biting another child at school.
The mother's visits initially continued at eight supervised hours per week, were liberalized to 12 hours unsupervised in October, and were restricted again less than two weeks later after her positive drug test. The visits were positive and without significant issues. Staff reported the mother was attentive and loving, and was able to redirect the children when appropriate. The children enjoyed their visits, which included activities such as baking, riding bikes, and watching movies.
Christopher reported he wanted to live with his half-sister and her family, whom he hoped could adopt him. Emilia wanted to live with the mother.
This was the mother's older daughter; the mother had lost parental rights to her in 2007.
In January 2017, the case was continued because county counsel wished to file a section 388 petition. County Counsel did so in February, requesting the court to terminate services. The petition alleged the parents had not made substantive progress in their case plans, engaged in criminal activity, and were transient with no steady source of income.
While the motion was pending, the mother completed a parenting class but was discharged from the Perinatal program for noncompliance and positive drug tests. On March 23, the court granted SSA's section 388 petition, ordered services terminated, and set a section 366.26 hearing for July.
Shortly thereafter, in April, both Christopher and Emilia were placed in a prospective adoptive home with a foster father. The foster father reported Christopher's "'emotions are constantly in flux.'" The social worker's report stated the foster father, the child's therapist and the social worker had been working to find positive coping skills for him. Emilia's behavior had improved "immensely." The social worker reported that the foster father "appears to be genuinely dedicated to caring for the children, and appears committed to provide the ongoing structure, care, and support that the children require. The children both appear to have a strong emotional connection to their caregiver, evidenced by the children going to him for comfort and to have their needs met. The caregiver stated that he wishes to adopt the children and provide them with a stable and loving home."
In early May, the mother was arrested again, and charged with possession of a controlled substance with intent to sell. She missed several drug tests, but in June was admitted to an impatient treatment home.
Visits resumed after the mother was released from jail. The summaries of the visits were generally positive, although the mother was not always able to appropriately redirect the children when they acted out. The children enjoyed their visits and felt safe with the mother.
The foster father told the social worker he was open to the children having continued contact with their biological family. On a later date, he expressed concern about statements the mother had made to the children, such as telling them they were returning home to her.
In the fall, Christopher told the social worker he enjoyed living in the foster home and hoped he would be adopted. Both he and Emilia stated they were being well cared for. They both continued to have behavioral issues, but the foster father remained committed to adoption.
Again the issue of the mother talking to the children about the future arose. The foster father reported the children had "'anxiety and confusion'" about the court process, and the mother had again told them they would move back in with her. When asked about this, the mother said she was responding to a question from Christopher about whether they would move back in with her, and she responded the children were welcome to do so and she was doing whatever she could to make that happen. She agreed in the future to tell the children that while she is working to get them back, it was the court's decision, and that she loved and supported them no matter what.
The section 366.26 hearing was continued several times and was held in October. The mother testified that she visited every Saturday for seven hours, and that during visits, she would eat with the children, watch movies, play games and soccer with them, draw with Christopher and play dolls with Emilia. She further testified she had been trying to help Christopher learn to read. She brought toys to some visits and tried to get whatever the children asked for.
The mother stated that sometimes the children would fight with one another, and she would respond by putting them in a time out and telling them it was not acceptable to hit each other. She said they fought less than they used to. She claimed Christopher had told her that he wanted to kill himself and that he hated himself, and she responded by telling him everything would be okay, and held him to comfort him. She changed the subject because she did not want to push the issue with him. She did not testify that she reported this incident to SSA, the foster parent, or anyone else.
In terms of playing a parental role in their life, the mother said she talked to them, loved them, showed them affection and fed them.
At the beginning of visits, the mother testified, the children were very excited to see her, and at the end, they were sad and told her they wanted to go with her. She said the children asked to go home with her at the end of every visit.
At the hearing's conclusion, the court considered the benefit exception to the termination of parental rights. The court found the mother had visited consistently, but did not meet the second prong of the exception. The court found the mother had not stood in a parental role "in terms of taking care of her own issues that brought her children before the court. She's not tending to their day-to-day needs. She's not there emotionally and physically to support them on the day-to-day basis." Further, visits had not progressed to unsupervised. While the children knew their mother and enjoyed the visits, they were turning to their foster father as their parent, and Christopher had directly expressed a desire to be adopted.
The court noted the children were in desperate need of permanency and their behavioral problems were a direct result of the court case. "Anything less than adoption doesn't provide these children with the permanency and stability that they need and the parental role, if any, that Mom plays in their lives, certainly, doesn't outweigh the need for permanency and stability."
Accordingly, the court found the children adoptable and terminated parental rights. The mother now appeals.
II
DISCUSSION
The mother's sole argument on appeal is that the juvenile court erred by refusing to apply the parental benefit exception. We review findings as to the section 366.26 exceptions under the substantial evidence test. (In re S.B. (2008) 164 Cal.App.4th 289, 297-298; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) In applying the substantial evidence test, "[w]e do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) "[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, held that abuse of discretion was the appropriate standard, but noted, "The practical differences between the two standards of review are not significant."
Once the juvenile court determines that there is no probability of reunification, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Edward R. (1993) 12 Cal.App.4th 116, 122.) Should the court find it likely that the child will be adopted if parental rights are terminated, the burden shifts to the parent or parents opposing adoption to demonstrate that termination would be detrimental to the child under one of the four statutory exceptions. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
One of these is the benefit exception, which requires an affirmative showing by the parent that termination would be detrimental to the child because the parent has maintained regular visitation and contact and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) For this exception to apply, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child. [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) The substantive positive emotional attachment must be such that the child would be "greatly harmed" if deprived of the parent-child relationship. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Moreover, the court must find that the strength of the parent-child relationship outweighs the potential benefit of adoption. (Ibid.)
This is a high standard to meet on appeal. The beneficial relationship exception to the termination of parental rights "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
The first prong of the benefit exception is regular visitation and contact in a parental role. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The juvenile court concluded the mother had satisfied the first prong.
If visitation and contact is sufficient, the court must also determine whether a child would benefit from continuing the relationship with the parent, balancing "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) In determining the existence of a beneficial relationship, we look to "[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 p. 576.)
The evidence here demonstrated that the children had benefitted greatly from their placement with the foster father, who was committed to adopting them. Despite behavioral challenges, which the court found were a direct result of the ongoing dependency proceedings, the children were doing well, and the foster father was committed to addressing any continuing issues. The court had evidence of a strong emotional connection between the children and the foster father.
The evidence also demonstrated that while the mother's visits with the children were pleasant and enjoyable, they had failed, over the course of a year and a half, to ever progress to unsupervised visits outside of a tightly structured environment. This was entirely the mother's doing, as she was unable to consistently maintain her sobriety throughout the reunification period. Although the visits went well and the mother was able to behave appropriately, her role was more that of a kindly visitor than of a parent. "[P]leasant and cordial . . . visits are, by themselves, insufficient to mandate a permanent plan other than adoption." (In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
The court could also reasonably balance the Autumn H. factors here to conclude the benefit exception was not appropriate. In particular, the evidence demonstrated the children had an overwhelming need for structure and to end the uncertainty of where they were going to live, and who was going to be their parent. That had not been their mother since detention. We do not, as the mother requests, reweigh the evidence to give more import to the factors favoring her. Moreover, the mother relies on cases that are simply inapposite, where the parental benefit exception was supported by the overwhelming weight of the evidence, including expert evidence. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689-690.)
Such evidence is simply not present here. There is no evidence at all that severing the parental relationship would be harmful to the children, especially in light of the foster father's willingness to maintain contact. Nothing in the record indicates the children had needs that could only be met by the mother, or that their relationship outweighed the security and permanency of an adoptive home. (In re Helen W. (2007) 150 Cal.App.4th 71, 81.)
III
DISPOSITION
The orders are affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.