Opinion
E070908
12-10-2018
In re C.H. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.H., Defendant and Appellant.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J266502 & J266503) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant T.H. (mother) appeals from an order terminating her parental rights over her son C.H. (child) and ordering the child be placed for adoption. Mother argues the juvenile court should have instead applied the beneficial parental relationship exception and selected legal guardianship as the child's permanent plan. We affirm the juvenile court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
In May 2016, plaintiff and respondent San Bernardino County Children and Family Services (CFS) received a referral after mother gave birth to the child and both tested positive for marijuana. Mother also admitted to using methamphetamine up until she was six months pregnant. The child, however, was apparently healthy.
Mother identified the child's father only by his first name, and stated that he had not been involved in their lives "financially, emotionally or otherwise." Mother reported the father of the child's older half sibling (born 2009) had been violent, but she stated that he too was "not involved in their lives," and she denied any recent contact with him. Mother further reported a history of mental health issues, including diagnoses for bipolar disorder, anxiety, and depression. She denied currently taking any prescribed medications to treat her mental illnesses, though she had taken such medications in the past and expressed interest in starting them again.
The child's father is not a party in this appeal and will be discussed only as necessary for context.
The child's half sibling is not at issue in this appeal and will be discussed only as necessary for context.
In June 2016, mother again tested positive for marijuana. Several days later, CFS held a "Team Decision Making" meeting with mother "to try and engage [her] further in services." It was decided, with mother's agreement, that the child would remain in mother's care under a family maintenance plan.
In July 2016, CFS filed a Welfare and Institutions Code section 300 petition, alleging that the child came within subdivisions (b) (failure to protect) and (g) (no provision for support), based in part on mother's history of substance abuse problems, mental health issues, and history of engaging in domestic violence. At a subsequent hearing, the juvenile court ordered the child detained, but the child would remain in mother's care on the condition she enroll in and participate in services, continue testing clean for drugs, and refrain from transporting the children until she had tested clean for 60 days.
Further undesignated statutory references are to the Welfare and Institutions Code.
In August 2016, mother admitted to a social worker that she had used marijuana daily and used methamphetamine "at least twice" since the detention hearing. She had most recently used methamphetamine a few days before, when she went "'out partying'" to celebrate her birthday, and left the child overnight with the apartment manager. CFS determined that the child needed to be taken into protective custody, and mother signed a declaration consenting to CFS doing so. CFS filed an amended section 300 petition, and at a subsequent hearing, the juvenile court detained the child and placed him in the care of CFS.
At the jurisdictional hearing in September 2016, the juvenile court sustained the allegations of the amended petition, removed the child from his parents, and ordered reunification services for mother. The court ordered mother to have supervised two-hour weekly visits, authorizing the social worker to liberalize visitation when appropriate.
In a six-month status review report filed in March 2017, CFS recommended terminating mother's services and setting a section 366.26 selection and implementation hearing to establish a permanent plan of adoption for the child. Mother had completed some services, but she had failed to participate in a substance abuse treatment program, tested positive for marijuana or methamphetamine four times between October and early December 2016, and failed to submit to random drug tests on six occasions between mid-December 2016 and February 2017. A November 2016 psychological evaluation suggested that mother may suffer from "Other Specified Depression Disorder, with anxious distress"; "Stimulant Use Disorder, Amphetamine-Type Substance"; and "Cannabis Use Disorder." The examiner opined that mother "likely experiences actual pain from her rheumatoid arthritis and may use marijuana as part of her pain management." But he further opined that she also abuses marijuana by using it for pleasure and appears to be addicted to it. He also found "concerning" that mother "does not believe there is a problem with marijuana or methamphetamine use while pregnant or while parenting her children."
Mother had generally been participating in weekly visitation with the child, although she had missed two or three visits for unknown reasons and arrived late on two other occasions. The social worker observed that both mother and child appeared to enjoy the visits.
On May 26, 2017, the date of the six-month status review hearing, CFS informed the juvenile court that mother had been referred to a substance abuse program and had begun attending weekly services on May 18, 2017. She had also continued attending weekly visits with the child. At the review hearing, the juvenile court rejected CFS's dispositional recommendation, instead granting mother an additional six months of reunification services.
In a 12-month status review report filed in November 2017, CFS again recommended terminating mother's services and setting a section 366.26 hearing to establish a permanent plan of adoption for the child. She had missed eight random drug tests between March and October 2017; tested positive for marijuana twice, in May and June 2017; and tested positive for marijuana and methamphetamine in October 2017. She was then discharged from her substance abuse program in November 2017 "due to threatening to kill a patient." She was homeless, unemployed, and receiving disability payments. Her therapist observed that she "'appears to struggle with the decision of continuing drug use or quitting for the sake of her children.'" Nevertheless, she attended weekly visits with the child at the CFS office. Mother and child appeared bonded, and both appeared to enjoy the visits. The visits had progressed to being only loosely unsupervised but had to continue to take place at the CFS office because mother had not been submitting to drug testing.
At a December 2017 status review hearing, the juvenile court terminated mother's reunification services and set a section 366.26 hearing.
In a section 366.26 report filed in April 2018, CFS recommended terminating parental rights and implementing a permanent plan of adoption for the child. In January 2018, the child had been placed with a maternal great-aunt who resided in Sacramento and who wished to adopt him. The child had begun to demonstrate developmental delays and was provisionally diagnosed with cerebral palsy. Genetic testing later showed the child has muscular dystrophy, a degenerative disease that has no cure and can only be slowed with medication. The maternal great-aunt told the social worker that she had discussed the "long lasting effects" of muscular dystrophy with the child's pediatrician and reaffirmed that she was willing to "'do whatever it takes' to ensure [the child] has a permanent home."
Mother's weekly visits with the child stopped after he was placed with the maternal great-aunt in Sacramento; her last visit with him was in November 2017. The maternal great-aunt expressed willingness to allow contact between the child and his natural parents after adoption "as long as she believes it is in [the child's] best interest, and such contact will not pose a risk of harm."
Our record does not reveal why mother's weekly visits with the child stopped in November 2017, even though the child's placement with the maternal great-aunt in Sacramento was not made until January 2018. Our ruling in this appeal does not depend on the reason the visits ended.
On May 17, 2018, mother filed a section 388 petition seeking reinstatement of reunification services, among other things. The petition represents that she had been living in a sober living Christian home since April 4, 2018, and had been clean and sober for "a couple months." She had been regularly attending church services, participating in anger management classes, and receiving outpatient services for drug and alcohol treatment.
On May 18, 2018, the juvenile court summarily denied mother's petition, finding that mother had not demonstrated a change in circumstances, only changing circumstances, and that she had not shown it was in the child's best interest to delay permanency. On the same date, the juvenile court found it was likely the child would be adopted, terminated parental rights as to the child, found that no exceptions to adoption applied, and selected adoption as the child's permanent plan.
Mother has not challenged on appeal the juvenile court's denial of her section 388 petition.
II. DISCUSSION
Mother contends that the juvenile court erred in ruling the parental relationship exception did not apply. We disagree.
A. Applicable Law
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. [Citation.] Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' [Citation.]" (Id. at p. 53.)
To avoid termination of parental rights, a parent must prove one or more statutory exceptions apply. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), which applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Mother has the burden of proving her relationship with the child would outweigh the wellbeing gained in a permanent home with an adoptive parent. (In re Anthony B., supra, at pp. 396-397.)
In determining the applicability of the parental relationship exception, the court considers "'"[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."'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) "A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) Furthermore, evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (Ibid.) Mother must also show she occupies a parental role in the child's life. (Ibid.)
Our review of the juvenile court's ruling is deferential, incorporating both the substantial evidence and abuse of discretion standards. We review the juvenile court's finding as to the existence of a beneficial parental relationship for substantial evidence. (In re Anthony B., supra, 239 Cal.App.4th at p. 395.) We apply the abuse of discretion standard to its determination of whether termination of the parental relationship would be detrimental to the child as weighed against the benefits of adoption. (Ibid.)
B. Analysis
Substantial evidence supports the juvenile court's conclusion that mother failed to establish that she occupied a parental role in the child's life. The child was removed from mother's care at two months old, in August 2016. It is undisputed that mother maintained fairly consistent weekly visitation with the child between removal and November 2017, and that the visits went well. But this evidence of frequent and loving contact is not enough to establish that she occupied a parental role in the child's life. (See In re Breanna S., supra, 8 Cal.App.5th at p. 646.) The trial court reasonably concluded that the parental role was occupied by his day-to-day caretakers; first, the foster family with whom he was placed in August 2016, and later, the maternal great-aunt who became his prospective adoptive parent.
Furthermore, even if mother had demonstrated the existence of a beneficial parental relationship, the trial court did not abuse its discretion by determining that the benefits of the child's relationship with mother were outweighed by the benefits of adoption. During the reunification period, mother failed to maintain her sobriety (and demonstrate that she was doing so by submitting to testing) long enough to progress to unsupervised visitation outside of the CFS offices. Mother alleged in her section 388 petition that she had been sober, but only for "a couple months." That is far short of demonstrating that she is capable of providing the child with the stable, permanent home every child needs, but which is particularly vital for children with special medical or other needs. In contrast, the maternal great-aunt demonstrated that she is ready and willing to provide the child with such permanency, despite the challenges presented by his muscular dystrophy.
We have no doubt that the child would benefit from continuing a relationship with mother, even if not a parental relationship, if mother continues to maintain her sobriety and address the other issues that led to this dependency. In this regard, we note that the maternal great-aunt appears open to the possibility of contact between mother and child after adoption if the great-aunt feels it is in the child's best interests. Nevertheless, mother has not shown that any detriment to the child from the termination of a parental relationship with her outweighs the benefits of adoption.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P.J. FIELDS
J.