Opinion
D070948
02-06-2017
In re K.H. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.H., Defendant and Appellant.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Lisa Maldonado and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent. Susan Lake, Children's Legal Services, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. SJ12574ABC) APPEAL from orders of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, Lisa Maldonado and Eliza Molk, Deputy County Counsel, for Plaintiff and Respondent. Susan Lake, Children's Legal Services, for Minors.
A.H. (Mother) appeals from orders terminating parental rights to K.H., William H., and Am. H. (the children), under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred in not applying the beneficial relationship exception to termination of parental rights and adoption under section 366.26, subdivision (c)(1)(B)(i). We conclude the court did not err and affirm the orders terminating Mother's parental rights.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2011, the San Diego Health and Human Services Agency (the Agency) filed dependency petitions for then one-year-old K.H. and newborn baby William, alleging they had suffered or there was a substantial risk they would suffer serious physical harm. (§ 300, subd. (b).) For at least six years preceding the birth of K.H., Mother habitually smoked marijuana, sometimes several times per day. Both K.H. and William tested positive for marijuana at birth because Mother smoked throughout her pregnancies. According to the Agency, a baby's exposure to marijuana during pregnancy may negatively affect his or her development in utero and lead to neurological development problems throughout childhood. Mother had not complied with a voluntary case plan relating to K.H. and ignored the risks of harm to William from marijuana use. In addition, K.H. had Down Syndrome and required diligent attention to her special needs.
Since the fathers are not a party to this appeal, we limit our factual recitation accordingly.
In June 2011, the court declared K.H. and William juvenile dependents, allowed them to remain in Mother's care, and ordered the Agency to provide services consistent with Mother's case plan.
Between June 2011 and early 2013, Mother did not complete her services and continued using marijuana. For example, she attended 20 sessions of individual therapy, but missed 16 sessions. Mother's treatment provider diagnosed her with cannabis dependence. Mother tried to attend several drug treatment programs, but repeatedly relapsed. She managed to meet K.H. and William's basic needs, causing the Agency to recommend continued services and the children's placement with her. Mother was remiss in attending to K.H.'s special education needs; K.H.'s teacher reported that K.H. was "absent more than she is attending."
In January 2013, counsel for the children (Minors' counsel) filed a section 388 petition to remove K.H. and William from Mother's care, citing Mother's undisputed substance abuse, uncompleted services, and the children's youth and vulnerability. Within the next few months, Mother's situation deteriorated. She was evicted and became homeless, did not take K.H. and William to necessary medical appointments, discontinued her services, and was unable to abide by the court's mandate to "test negative" for drugs. The Agency changed its recommendation to concur with Minors' counsel.
In April 2013, the court removed K.H. and William from Mother's care, and in May, placed them with Lois J. (Caregiver). After removal, Mother did not regularly visit K.H. and William, continued smoking marijuana, and disengaged from her services. For instance, she visited once in June, once in August, and twice in September 2013. K.H. and William were happy in Caregiver's home and were very comfortable with Caregiver, who was potty training K.H. and attending to the children's medical and educational services. Mother, who was still homeless, checked herself into a residential drug treatment center in late September 2013.
In October 2013, Mother gave birth to Am., who, like her siblings, was born with marijuana in her system. During all of her pregnancies, Mother received little or no prenatal care. The court detained Am., declared her a juvenile dependent, and placed her with Caregiver.
At a review hearing in December 2013, the juvenile court continued reunification services for Mother, finding she had made some progress on her case plan. Likewise, at a review hearing in June 2014, the court continued reunification services for Mother, finding she had made substantive progress on her case plan. During these review periods, Mother had regular supervised visits with the children three days a week for several hours at a time. Mother was loving and appropriate during the visits.
Between June and December 2014, Mother progressed to unsupervised visits with the children three times a week in Caregiver's home or Mother's apartment for five or six hours each time. Mother behaved in a loving, affectionate manner, and the children were happy in her presence. She was a "no show" to several drug tests and tested negative one or two times. The Agency considered Mother's compliance with her case plan to be "fair" and recommended the children be placed with her. In December 2014, Mother moved into the maternal grandmother's home, and in February 2015, the court ordered the children placed with Mother contingent on her compliance with a safety plan.
Over the next several months, Mother did not comply with various provisions of her case plan. In August 2015, the Agency filed a section 387 supplemental petition to once again remove the children from Mother's care and return them to Caregiver. Since the children had been placed in Mother's care, she tested positive for marijuana and was a "no show" several times, was neglectful of K.H.'s special educational needs, and did not seek recommended mental health services for William. Accordingly, the children were placed back with Caregiver. Mother had supervised visits with the children on a weekly basis in Caregiver's home until October 2015, when the court terminated Mother's services and set a section 366.26 hearing. Mother's supervised visits then became sporadic and she failed to visit the children for over six weeks between November and December 2015.
In June 2016, Mother filed a section 388 petition to have the children placed with her based on having obtained a medical marijuana card. The court denied Mother's petition, discussing how Mother's "free pass" to use marijuana did not alleviate the protective issues in the case and might in fact "feed" the problem. Section 366.26 Hearing
The court held a contested section 366.26 hearing in August 2016 to select the children's permanent plan. The evidence showed that the children had resided with Caregiver since May 2013 except for about six months in 2015. The children loved Caregiver and sought affection from her. Caregiver had raised five of her own children to adulthood; was a former daycare provider; was familiar with the children's unique personalities and issues; met all of the children's physical, mental, emotional, and educational needs; and was committed to adoption.
Caregiver picked up Am. from the hospital in November 2013 after she was born.
Regarding visitation, the Agency's section 366.26 report, addendum report dated June 27, 2016, addendum report dated August 8, 2016, and trial testimony, showed that since October 2015 and for certain other periods, Mother's visits were infrequent and irregular. For example, Mother was permitted to visit the children as often as she wanted, but she recently visited about once per month on average, such as the day after Christmas, each child's birthday, Easter, and several times between June and August 2016. The children called Mother their "mommy" and their visits with her went well, but the children turned to Caregiver to meet their daily needs. The Agency did not believe Mother currently occupied a parental role in the children's lives.
In the Agency's assessment, the benefits of adoption outweighed the possible harm to the children from terminating their relationship with Mother. Kathleen Forbes, the assigned social worker, was trained in assessing parent-child bonds and had recommended permanent placement plans for almost 200 children. She acknowledged a positive, loving relationship between Mother and the children, but believed the children were young and did not depend on Mother to meet their daily needs; she had not been visiting consistently; and she could not provide the stability and consistency the children needed. Having visited the children at least 10 times over the course of 10 months, Forbes's opinion was that they would not suffer any harm if they could not continue their relationship with Mother. Forbes testified that Caregiver was meeting all of the children's emotional needs on a daily basis.
Mother presented two bonding studies prepared by retained experts. The first study was conducted by Dr. Yanon Volcani, who observed Mother interacting with five-year-old William during one office visit. Dr. Volcani opined that William had internalized Mother as a "significant figure in [his] psychological life" and that William recognized her to be his " 'mother' in the acculturated sense[.]" Dr. Volcani reported he "certainly [did] not have sufficient data to meaningfully comment on [Mother's] general functioning or ability to adequately parent [William]." At trial, Dr. Volcani could not opine on whether continued contact between William and Mother would be beneficial or detrimental.
One of the experts testified that he performed a "Parent/Child Relationship Study" instead of a "bonding study," but the purpose of the study was to gain an understanding of the nature and extent of bonding or attachment.
The Random House Unabridged Dictionary defines "acculturate" as "to alter by acculturation," and "acculturation" as "the process of adopting the cultural traits or social patterns of another group." (Random House Unabridged Dict. (2d ed. 1993) p. 13.)
The second bonding study was conducted by Dr. Diana Pickett, who observed Mother interacting with six-year-old K.H. during a single two-hour office visit. Dr. Pickett noted her study's limitations due to K.H.'s Down Syndrome and K.H.'s limited verbal and cognitive abilities. For example, in a sentence completion test, e.g., "I like . . . ," "I get sad when . . . , " or "at bedtime I . . . ," K.H. mostly responded, "mom," causing the doctor to question whether K.H. understood what was being asked. Furthermore, K.H. was always in her mother's presence during the study, and Mother "translated" some of K.H.'s incomprehensible statements. Dr. Pickett's opinion was that there was a "special love bond" between Mother and K.H., but that Mother lacked education regarding Down Syndrome and the effects of marijuana on children.
The court received stipulated testimony from William and K.H., consisting of their answers to a series of questions asked by Minors' counsel. K.H.'s statements were often nonresponsive and/or indicated a cognitive disability. For instance, when asked, "What do you call your mom?" K.H. responded, "Here's my purse" and showed counsel a toy purse.
After considering the evidence and hearing counsel's arguments, the court found by clear and convincing evidence the children would likely be adopted and no exceptions to adoption applied. Regarding the beneficial relationship exception to termination of parental rights, the court found that Mother had not maintained regular visitation and contact with each child, and the exception did not apply on that basis alone. The court went on to discuss that although the children derived "some benefit" from their relationship with Mother, the benefits of adoption outweighed any potential harm from severing their relationship with her. The court terminated Mother's parental rights and ordered the children placed for adoption.
DISCUSSION
I. The Court Did Not Err in Finding That the Beneficial Relationship
Exception to Adoption Did Not Apply
Mother makes a number of arguments to support her primary contention on appeal that the juvenile court erred in finding the beneficial relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) Mother asserts she maintained regular visitation with the children sufficient to meet the statute's requirements, the quality of their relationship outweighed the benefits of adoption, and terminating her parental rights would be detrimental to the children. We conclude the court did not err.
A. Guiding Principles
At a section 366.26 permanency planning hearing, once the juvenile court finds by clear and convincing evidence a 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 Michael G. (2012) 203 Cal.App.4th 580, 589.) One of these exceptions is the beneficial relationship exception to adoption, which applies when "[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)(i).) The burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
We apply the substantial evidence standard of review to the juvenile court's factual findings on the existence of a beneficial parental relationship and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395, citing In re J.C. (2014) 226 Cal.App.4th 503, 530-531 and other cases.) When reviewing the sufficiency of evidence to support a finding, "we 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) "We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we . . . affirm the order even if other evidence supports a contrary conclusion." (In re Megan S. (2003) 104 Cal.App.4th 247, 251.)
B. Analysis
1. Visitation Prong
Substantial evidence supports the juvenile court's finding that Mother did not maintain regular visitation and contact with the children as required under section 366.26, subdivision (c)(1)(B)(i). We need not resort to a detailed count of Mother's visits. "Regular visitation exists where the parents visit consistently and to the extent permitted by court orders." (In re I.R. (2014) 226 Cal.App.4th 201, 212.) As the juvenile court noted, Mother had a pattern of absenting herself when the children were not in her physical custody, even though she was permitted and encouraged to visit the children as much as possible. After her services were terminated, Mother visited mainly on special occasions. There were other periods when she visited unpredictably, about once a month, and at least one six-week period when she did not visit at all. Mother's conduct was "not providing [the children] the loving stable relationship [they] deserved." (In re J.C., supra, 226 Cal.App.4th at pp. 531-532 [irregular visitation when mother missed last five visits, habitually made last minute plan changes, and had other periods of inconsistency].)
Mother asserts the court improperly engaged in a "quantitative" analysis in determining whether she engaged in regular visitation and whether the beneficial relationship exception applied. Based on our review of the record, we are satisfied the court performed a proper analysis to support its findings under section 366.26, subdivision (c)(1)(B)(i). Contrary to Mother's argument, the court did not state that a specific number of visits was required to constitute "regular" visitation, and in fact, it explicitly rejected such an approach. The court looked instead at Mother's pattern of inconsistent visits to conclude she had been "quite deficient" in visitation.
We further reject Mother's argument that her visits were regular when viewed over the course of the children's lives. Visits are not "regular" when they occur frequently during certain periods of time but occasionally during other periods and not at all during yet another period. (E.g., In re C.F. (2011) 193 Cal.App.4th 549, 554.) The juvenile court's finding that Mother did not engage in regular visitation with the children is supported by substantial evidence.
2. Substantial Benefit Prong
Even assuming Mother maintained regular visitation and contact, she did not demonstrate the children would "benefit from continuing" their relationship with her. The statutory phrase "benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(B)(i)) refers to a parent-child relationship 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 other words, the court balances 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the 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 Zachary G. (1999) 77 Cal.App.4th 799, 811 (Zachary G.).) "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., at p. 575.)
To establish a beneficial relationship, "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; see In re Jason J. (2009) 175 Cal.App.4th 922, 936-938 (Jason J.); In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The evidence must show more than merely "a loving and happy relationship" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419), and the parent must be more than " 'a friendly visitor or friendly nonparent relative' " (Jason J., at p. 938). "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." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) A beneficial parent-child relationship characteristically "arises from day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
After carefully reviewing the record, we cannot say the juvenile court abused its discretion in finding the benefits of adoption outweighed the benefit of maintaining Mother's relationship with the children. The children were very young or possessed special needs, requiring their parent to provide diligent care and daily interaction in a stable, safe home. For a large part of their lives, the children relied on Caregiver to meet their physical, mental, emotional, and educational needs. The children were happy living in Caregiver's home, loved Caregiver, and thrived under her care. At the section 366.26 hearing, the social worker testified that Mother did not occupy a parental role in the children's lives, and the children turned to Caregiver to meet their daily needs. There is no evidence that Mother had a bond with Am., who had lived mostly out of her custody. Likewise, the other children did not have any needs that could be met only by Mother. Although Mother loved her children, she had repeatedly shown that drugs would take precedence in her life. Her original protective issues remained unresolved despite extensive reunification services.
There was no bonding study performed with respect to Am. --------
Mother argues the court was required to apply the beneficial relationship exception because it found Dr. Volcani's and Dr. Pickett's testimony unrebutted, and those experts' bonding studies established the existence of a bond between Mother and the two older children. We disagree. The court stated, "There's no evidence to rebut [the experts'] testimony that in a certain respect mom is important to the two children . . . ." By this statement, the court merely acknowledged the undisputed fact that Mother shared a loving relationship and had positive visits with K.H. and William. Neither expert purported to opine on the exception's applicability, and indeed, each one expressly qualified his or her opinions in various respects. Overall, the court found the experts' time spent on the studies and information-gathering efforts was "extremely limited." It was reasonable for the court to place greater weight on the Agency's assessment. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 ["Social workers are frequently recognized as experts in assessing risk and placement of children and selecting permanent plans for children."].)
Importantly, there is insufficient evidence that severing Mother's relationship with the children would result in them being "greatly harmed." (Autumn H., supra, 27 Cal.App.4th at p. 575; cf. In re Scott B. (2010) 188 Cal.App.4th 452, 472 [emotionally unstable 11-year-old boy who had lived with mother for first nine years of his life would likely suffer serious harm if frequent visits with mother were discontinued].) The social worker opined that William might be a little sad and miss his mother, but that none of the children would be harmed. The social worker's opinions were based on her firsthand observations over 10 months and were not inconsistent with Dr. Volcani's and Dr. Pickett's testimony. The bonding experts could not opine regarding the extent of harm K.H. and William might suffer by terminating Mother's parental rights since they lacked certain specific information relating to Mother, the child, and the child's caregiver. Substantial evidence supports that the children continued to thrive when Mother absented or distanced herself from their lives and that they would continue to thrive in an adoptive home with a parent committed to meeting all their needs. The court reasonably found that Mother's relationship with the children did not outweigh the benefits of adoption. (Jason J., supra, 175 Cal.App.4th at p. 938; In re Helen W. (2007) 150 Cal.App.4th 71, 81 [a friendly and loving relationship "is simply not enough to outweigh the sense of security and belonging an adoptive home would provide"].)
We briefly address Mother's remaining arguments. She asserts the juvenile court impermissibly imposed a "third element" of proof to the beneficial relationship exception relating to whether the children would suffer detriment from termination of parental rights. This argument lacks merit. The court explained its weighing process as follows: "The heart of the analysis is whether the regular and consistent visitation plus the benefit of the mom as a parent to the child [ ] amounts to compelling reasons to find detriment, and the court doesn't find that to be the case here." In comparison, the relevant statutory language precludes the termination of parental rights if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) 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).) Thus, the juvenile court's analysis was consistent with the relevant statutory language. (See In re Logan B. (2016) 3 Cal.App.5th 1000, 1010-1012.)
Mother next argues the court impermissibly considered her parenting ability and marijuana use as part of its decision whether to apply the beneficial relationship exception. When evaluating the strength and quality of the parent-child relationship, courts appropriately consider many variables, including "the 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." (Zachary G., supra, 77 Cal.App.4th at p. 811.) As the court evaluated the parent-child relationship in this case, it recounted how each child tested positive for marijuana at birth and how each child experienced successive placements and removals due to Mother's failure to address her protective issues over several years. Therefore, the court did not consider Mother's marijuana use in isolation, but rather, the negative impact of her usage on the children and their relationship with her. The court did not commit reversible error.
Finally, Mother argues the court incorrectly considered Caregiver's willingness to allow future contact between the children and Mother as part of its decision to terminate parental rights. After the court completed its analysis and found that the benefits of adoption "far outweigh[ed]" any harm from severing the parent-child relationships, the court remarked: "Having said that, I'm hopeful that the caregivers will give the mother liberal contact and visitation with the child[.]" The court went on to terminate parental rights. We conclude the court did not consider the likelihood of continued contact in deciding whether to terminate Mother's parental rights. Instead, the court's lengthy, detailed analysis was plainly based on the assumption that there would be no future contact. Mother has not established any reversible errors.
DISPOSITION
The orders terminating Mother's parental rights are affirmed.
/s/_________
HALLER, J. WE CONCUR: /s/_________
HUFFMAN, Acting P. J. /s/_________
O'ROURKE, J.