Opinion
C081852
01-13-2017
In re K. D. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. D. D. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD235136, JD235137, JD235138)
Parents of the minors appeal from the juvenile court's orders terminating their parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) They contend the juvenile court erred in finding that the beneficial parental relationship exception to adoption did not apply. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
In September 2014, the Sacramento County Department of Health and Human Services (the department) filed section 300 petitions on behalf of then six-year-old L. M., and her half siblings, one-month-old twins. The department alleged father had significant anger management problems, verbally abused mother, and mother had failed to protect the children. The juvenile court ordered the children detained, placed together in a foster home, and issued a temporary restraining order protecting mother and the children from father. Following a jurisdictional and dispositional hearing, the juvenile court adjudged the minors dependent children, awarded parents visitation, and ordered reunification services. In October 2014, the trial court issued a no contact order between mother and father.
As a result of the domestic violence and neglect trauma experienced while in her parent's care, the minor L. M. was diagnosed with depression and anxiety disorders. The twins were not developing adequately or meeting their developmental milestones, and were in need of a mental health assessment. Mother had consistently attended supervised visits with the children. After she stopped breastfeeding, mother's visits with the twins and L. M. were twice a week for two hours. On a few occasions, mother inappropriately allowed the paternal grandfather to attend her visits with L. M., despite the fact that his visitation had been suspended based on his behavior. Mother regularly brought junk food to the visits, even after being told not to. Mother tried to convince the foster parents to arrange for unsupervised visits with the children. During visits, mother appropriately parented the children. Father also consistently visited the children. Father had supervised visits twice a week for two hours. He appeared to parent appropriately during the visits.
By May 2015, mother had nearly completed her reunification plan, including a domestic violence awareness program, parenting classes, and general counseling. Father gave numerous reasons for failing to participate in programs, including financial constraints, and his feeling victimized by the department. Neither parent was ready or able to have the children returned to their care and custody.
In October 2015, the department reported father continued to evade the department and had not completed his court mandated services.
L. M. was considered a "failure to thrive" due to her not meeting physical milestones. Although her language and cognitive skills were well developed, she presented as hyper vigilant and would adjust to an adult's current emotional state, a result of witnessing domestic violence. She struggled as a result of witnessing the domestic violence, the stress of the proceedings, and her parent's lack of progress in reunification. She had regressed in her personal hygiene and exhibited encopresis. The twins were meeting their developmental milestones. However, they suffered from lack of attachment to others, and their social and emotional dexterity was under stimulated.
Mother had completed most of her reunification plan, but had not completed her infant parenting class. Mother had been inconsistent in her attendance at general counseling. She exhibited traits of codependence and a desire to be rescued. The therapist recommended mother continue with random drug testing and counseling, individually and with L. M. after she had completed her reunification plan and had unsupervised visitation. Because mother's services could not be completed within the 12-month time period, the department recommended reunification services be terminated.
Mother had moved to observed visitation, twice a week for four hours, and had consistently visited the children. As a result of her failure to complete her plan, she could not move to unsupervised visits. She appeared loving and nurturing to the children in visits and set appropriate boundaries, but her ability to parent them unsupervised was undetermined. Mother had an aggressive verbal altercation with the foster mother. In October, the foster family case manager requested mother's visitation be reverted to supervised visitation, as mother was disregarding the pediatrician's recommendations of food for the twin infants. Mother was also having inappropriate conversations with L. M. about reunification. The department found the risk of returning the children to mother was high, as her progress in reunification had been minimal and she had regressed in visitation. Based on mother's statements, behavior, and service provider reports, the department concluded there was a high probability the cycle of abuse would repeat, and she did not have suitable support to help with the children.
Father had been noncompliant in participating in court ordered services and had continued to evade contact with the department. Father continued to have supervised visitation with the children. The department did not consider reunifying the children with father because of his evasiveness and his inability to comply with court ordered services.
The department recommended placing the children with the maternal great-aunt and uncle in Southern California. These relatives had known the children since their birth. In the past, they had helped financially support mother and had regularly visited with L. M. and mother. They also stayed in contact with L. M. through frequent telephone calls. L. M. indicated she would be happy to live with these relatives. The trial court ordered the children placed with these relatives on October 29, 2015.
As of the March 2016 selection and implementation report, the twins were about four to six months behind in meeting developmental milestones. One twin, K. D., was very curious, happy, and social. The other twin, D. D., was not as patient as her sister. She could be loving but was also very demanding. She was more aggressive, biting and pulling her twin sister's hair. L. M. was developmentally on target, and was described as friendly and empathetic. She was exceeding grade level standards and was bright and enthusiastic. She did not exhibit any behavioral problems in school.
Mother had daily FaceTime and phone contact with L. M. Mother had also visited the children twice. She was appropriate during visits. Father had two contacts with L. M. since the move, one via Skype, and one on the phone. Father had not contacted the caretaker despite having the relative caretaker's phone number. The relative caretakers were not able to provide permanency to the children.
The department identified a potential adoptive family for the children. The potential family was approved for adoption and certified through the adoption agency. They were committed to maintain a relationship with the relative caretakers and were open to maintaining contact with other family members. L. M. had a positive relationship with mother and father. The department anticipated adoption would be difficult for her, but the benefits of a permanent home outweighed the detriment. It was also in the children's best interests to be placed together.
L. M. testified at the April 2016 permanency hearing that the most important people in her world were her whole family, including mother and father. She loved her father and was sad because she did not get to talk with him very much. Before these proceedings, she and father would play and he would help her with her homework. She mostly missed how they used to snuggle. She had last spoken with him about a month before, and last seen him in October. She would feel kind of sad and a little mad if she could not see him anymore. She sort of wanted to keep a relationship with him, but she was "also really excited to go to a new family." When she first moved to her aunt's house, she did FaceTime with her mother almost every day for about 20 minutes. Later the schedule changed to once a week for about 10 minutes. They would talk and sometimes do homework. L. M. had last spent time with mother in person in February or January. They had fun and played a little soccer in the park. She said she would like to see her mother more often, "probably once a month." She would feel "really, really sad" if she could not see her mother anymore, because she loved her a lot. She would miss the things they used to do, like coloring, snuggling, napping, and watching movies. She loved and missed her mom, but was "excited and happy because I'm excited to go to a new home and do different things."
Father testified his relationship with the twins before they were removed was extremely joyful. His relationship with L. M. was awesome; he would take her to the park and have fun with her, and help her with schoolwork. In their phone conversations, they would talk about school. Before she moved to her aunt's house in Southern California, he generally went to every visit. Sometimes he would drive nine to 10 hours to visit with them. When they moved, car troubles and financial difficulties prevented him from driving to visits. For about two months, he did not maintain telephone contact with the children, because he was "really busy working," and was having trouble paying his phone bill. He acknowledged he did not currently have much of a relationship with L. M. because he was not allowed to. He testified that a continuing relationship with him would benefit the children by giving them happiness, emotional, physical and spiritual support, and joy. If his parental rights were terminated, the children would lose the "love and compassion, the caring father" that he was.
Mother testified her relationship with L. M. was very close; she was a best friend and companion. Mother had been able to visit with the children consistently, including spending Thanksgiving and Christmas with them. She missed her visits in January and February because she was ill, but saw the children again in March. She spoke with them consistently every day and mother would help L. M. with her homework. Mother believed it would benefit the children to maintain a relationship with her because mother had also lost her own mother at a young age, and she could provide the security of knowing her family history. Also, the maternal grandfather had started a college fund for the children and they would not be able to get that if parental rights were terminated.
The social worker testified L. M. appeared bonded to her parents and had a close relationship with them. L. M. had told the social worker she wanted a permanent home and wanted to be with her sisters. After moving to Southern California, L. M. thrived in her placement. She was no longer having the behavior issues or challenges she had previously experienced. The social worker acknowledged L. M. would miss her parents, but concluded the benefits of emotional and physical support, security, and safety she would gain through adoption outweighed any detriment. The social worker also agreed L. M. had a positive relationship with mother and enjoyed the contact with her.
The juvenile court found the children adoptable. The juvenile court found father did not consistently visit with the children, and did not maintain regular contact. The lack of contact with father did not negatively affect L. M. in her placement; in fact, it appeared she benefitted as she no longer engaged in the concerning or detrimental behaviors seen in her previous foster home. The juvenile court found mother had maintained regular contact and some visitation. While L. M. would be sad, frustrated, and mad if she could not see her parents, she was also excited about her new family and life in general. The juvenile court believed L. M. had a positive relationship with mother and that terminating the relationship would deprive L. M. of a positive emotional attachment. However, there was no evidence that it was such a strong emotional attachment that L. M. would be greatly harmed. As for the twins, their contact with mother was more incidental, in the way of a friendly, fun visitor. The juvenile court found L. M.'s testimony, demeanor, and behavior supported the conclusion that she was desperate for a permanent home. The court found the parents had not met their burden of establishing the parental bond was so strong that the children would be greatly harmed by terminating parental rights. The juvenile court found the children adoptable and terminated parental rights.
DISCUSSION
Parents contend the juvenile court erred by finding the beneficial parental relationship exception to adoption did not apply. Father contends he maintained regular visitation and contact with the children and that it was detrimental to the children to terminate parental rights because they would have benefitted from a continuing relationship with him. Mother contends she maintained consistent contact and visitation and continuation of the relationship with her would promote the children's well-being to such a degree as to outweigh the benefits of a permanent home.
At the selection and implementation hearing, if the court finds that the child is likely to be adopted, "the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1); In re S.B. (2009) 46 Cal.4th 529, 532.) Adoption is the permanent plan preferred by the Legislature " 'because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker,' " unlike a revocable guardianship. (In re Celine R. (2003) 31 Cal.4th 45, 53; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348; In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At this stage, after the child has been under juvenile court jurisdiction for an extended period, it is "inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.)
In exceptional circumstances, a parent may avoid termination of parental rights by showing that it would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.) One such exception to termination of parental rights, found in section 366.26, subdivision (c)(1)(B)(i), is when the parents demonstrate they " ' "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ' [Citations.]" (In re G.B. (2014) 227 Cal.App.4th 1147, 1165, quoting In re S.B. (2008) 164 Cal.App.4th 289, 297.) 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 Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of a beneficial relationship is determined by considering a number of factors, including the age of the child, the amount of time the child spent in the parent's custody, the positive or negative effect of interaction between the parent and the child, and the child's particular needs. (In re Amber M. (2002) 103 Cal.App.4th 681, 689.) However, neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation of some benefit from continued parental contact (In re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to establish this exception.
The parent carries the heavy burden of proving both visitation and that the child holds the parent in a parental role and would be greatly harmed by termination of parental rights. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) When the juvenile court rejects an exception to adoption, we review the court's finding deferentially. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether standard of review deemed substantial evidence or abuse of discretion, broad deference to lower court required]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion]; In re Autumn H., supra, 27 Cal.App.4th at p. 576 [substantial evidence].)
To prove that the beneficial parental relationship exception applies, "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." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) "[T]he 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., supra, 97 Cal.App.4th at p. 466.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (Ibid.)
Here, father did not visit with the children after they moved to Southern California, from November 2015 to April 2016. He spoke with L. M. three times after she moved. No visits and only three brief conversations in almost six months cannot be considered regular visitation and contact. The juvenile court correctly determined father did not meet this prong of the beneficial parental relationship exception.
As to mother, it is not clear whether the court found she maintained consistent contact and visitation. She certainly maintained consistent contact and somewhat less consistent visitation after the children moved to Southern California. Whether or not mother met the first prong of the beneficial parental relationship test, she did not show a relationship with the minors sufficiently beneficial to outweigh the benefits of adoption.
Although it is not clear, because the juvenile court moved on to rule on whether mother had satisfied the second prong of the exception, it appears the juvenile court found she met her burden as to the visitation and contact prong. --------
Here, the minors were adoptable and were living together in a prospective adoptive home. The twins were less than a month old when removed from the parents, and L. M. was six years old. They were detained out of the parent's home for 19 months, virtually all of the twins' lives and almost a quarter of L. M.'s life. Father's visits were supervised for about a year and then nonexistent for the next five months. During that first year, mother's visits were supervised, then observed, then returned to supervised as a result of problems with her behavior during visits. Neither parent was able to move to unsupervised overnight visits. There was no evidence that the twins had a significant bond with the parents or that they would suffer any detriment from parental rights being terminated. As for L. M., it was clear she loved both her parents, but equally clear they did not occupy a parental role in her life, even mother's description of her relationship with L. M. was as a best friend and companion. Their interactions were described as involving play and cuddling and occasionally some schoolwork. Moreover, L. M.'s behavior and circumstances improved when she move to Southern California and visitation with her parents decreased. L. M. herself testified that although she would be sad not to see mother and would miss her, she was excited to have a permanent home. She also wanted to stay with the twins. On this record, the juvenile court did not err in concluding the parental relationship with the minors was not sufficiently beneficial as to outweigh the benefits of adoption.
DISPOSITION
The orders terminating parental rights are affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Hoch, J.