Opinion
C082321
01-20-2017
In re D.B. et al., Persons Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-JV-DP-2014-0000225, J06885)
D.B. (mother) appeals from the juvenile court's orders terminating parental rights for her four children, Dy, Da, De, and Dennis (the minors). (Welf. & Inst. Code, § 366.26.) She contends the juvenile court erred in failing to find the beneficial parental relationship exception applied. (§ 366.26, subd. (c)(1)(B)(i).) Disagreeing, we will affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When Dennis was born in July 2014, both he and mother testified positive for amphetamines. Mother had been incarcerated in county jail for seven and a half months of her pregnancy and was released three weeks before Dennis's birth. Mother admitted to prior drug treatment but denied she was currently using. This was mother's second drug exposed baby, and mother had prior reports to Child Protective Services. Dy (born 2008), Da (born 2009), and De (born 2012), were all living with mother at the time of Dennis' birth. Mother lived with a friend. A protective hold was placed on Dennis at the hospital, and Dy, Da, and De were taken into protective custody.
Another daughter (then aged eight) lived with maternal great-grandparents; neither she nor any of the minors' fathers are part of this appeal. --------
On July 28, 2014, a team decision making meeting was held with mother and other relatives participating. During the meeting, mother admitted she had been using drugs and living in an abusive relationship. Mother also admitted her children had witnessed domestic violence in the home. Mother said she was homeless and willing to participate in a drug program. It was decided the minors would remain in foster care.
On July 30, 2014, the San Joaquin Human Services Agency (Agency) filed a section 300 petition on behalf of minors, alleging failure to protect, no provision for support, and abuse of a sibling. (§ 300, subds. (b), (g), & (j).) The juvenile court ordered the minors detained. In August 2014, mother submitted to jurisdiction; the court sustained the allegations in the petition and ordered mother into drug court.
The October 2014 disposition report described mother as participating in services, with a strong parent-child relationship with all of the minors. Mother was visiting with the minors two times a week, with an additional visit once a week with De and Dennis (the younger two minors). Mother acted appropriately during the visits and the minors were closely bonded to her. As outlined in her reunification plan, mother was enrolled in parenting classes, began counseling for domestic violence, and was admitted to drug treatment. At the November 2014 disposition hearing, counsel for mother informed the court she was doing well in her substance abuse program. The juvenile court continued the minors' out of home placement and set the next review hearing.
At the next hearing in December 2014, the court increased mother's visitation with the minors, including the opportunity for overnight visits as approved by the social worker. The April 2015 status review report stated mother was in compliance with court orders and was making progress in her case plan. She had completed a residential drug treatment program and was participating in an aftercare program and drug court. She had completed parenting classes, was participating in counseling for domestic violence, and was consistent with her visitation. Mother was employed and in the process of moving into a two-bedroom home. At the April 2015 hearing, the court allowed overnight visits. At the June 2015 hearing, the court granted the social worker discretion, in consultation with minors' counsel, to place the minors with mother.
However, in June and July 2015 mother tested positive for methamphetamine on two occasions. The juvenile court stopped mother's overnight visits in July 2015. That same month, mother was released from her substance abuse aftercare program for noncompliance. In August 2015, mother was terminated from drug court. Mother continued visiting with the minors, twice a week for two hours each time. Based on mother's lack of commitment to resolving the issues that were hindering her ability to care for the minors, the September 2015 status review report recommended terminating mother's reunification services and ordering a permanent plan for the minors.
At the November 2015 contested review hearing, mother testified she attended a drug counseling center three times a week and was testing clean weekly. She also testified her visits with the minors were going well and she felt she was ready to have them back in her care. Due to mother's relapse in her substance abuse, the juvenile court concluded there was not a substantial probability the minors would be returned to the physical custody of mother within the time permitted for reunification by statute, terminated reunification services for mother, and set a section 366.26 hearing.
Dy and Da (the two oldest, then aged seven and six) were placed with the maternal uncle and his wife in Colorado in January 2016. The March 2016 status review report stated the boys felt "safe, cared for, and loved" in the home, were "adjusting well," and wanted to stay. Still, maternal uncle's wife described Dy "as being on an emotional roller coaster," with many happy days but "a few times when he has cried for his mother." Da also missed mother and his siblings. Mother communicated with them via phone and video chat. De and Dennis (then aged three and one) showed improved behavior and were "bonding with their current caregivers," a local foster family with whom they were placed in January 2015. Mother continued visiting them twice a week for two hours. The report recommended adoption for all four minors as the permanent plan.
The section 366.26 report recommended terminating mother's parental rights. Maternal uncle and his wife were the prospective adoptive parents for Dy and Da, with both boys stating they felt safe and were happy in the home. Both Dy and Da called their caregivers mom and dad, and they were told this would be the home where they will grow up. De and Dennis's current foster parents were their prospective adoptive parents, with both minors adjusting in their new home. De and Dennis looked to their caregivers to meet their needs, were affectionate with them, and referred to them as mom and dad. The report recommended adoption for minors, noting it would ensure they "have a loving and stable home with capable and committed parents." In addition, a permanent family would give De and Dennis continuity of care and allow them to address their behavioral and emotional needs.
The contested section 366.26 hearing was held in May 2016, with mother and the social worker testifying. The social worker testified mother acted appropriately during her visits with De and Dennis, including bringing snacks and things for them to play with. According to the social worker, the most recent visit between the three was "loving." Although the social worker was aware mother had calls with Dy and Da, she did not know the quality of the contact. At the time of the hearing, Dy and Da had begun individual and family therapy, and "they don't ask as often any more about the mother."
Mother described her twice-weekly, two-hour visits with De and Dennis as enjoyable and regular. De and Dennis called her mom and always greeted her by excitedly running toward her. The visits were after daycare and De and Dennis were often tired, so mother would bring snacks and toys and movies "to keep us occupied and keep our time so we are interacting and fun." De liked to cuddle with mother on the couch and watch a movie together. At the end of their visits, Dennis would reach out to mother and De would cry.
Mother testified she spoke via video phone chat with Dy and Da weekly for about 30 minutes to an hour each time, although recently calls had been less frequent because the boys' therapist recommended less contact with mother to ease the transition. Some of these conversations were "a little rough" because maternal uncle and his wife would ask mother to talk with the boys about misbehavior, but the calls "always end on a really good note." Mother testified Dy and Da listened to her, called her mom, and said they missed her "all the time."
Mother also testified that she would do "a lot of co-parenting" with the minors' previous foster parents, including attending the minors' doctor appointments and parent-teacher conferences. This stopped in January 2015 after the older boys moved to Colorado to be with maternal uncle and his wife, and De and Dennis were placed with new foster parents.
Mother argued for the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) at the end of the hearing; the Agency and the minors counsel opposed. The juvenile court found that mother had failed to show minors would benefit from continuing their parental relationship with her, and that although the minors received some benefit from their visits with mother, her role was more of a loving relative and not a parent. The court found that the minors were likely to be adopted and termination of parental rights would not be detrimental to them, and terminated parental rights. Mother timely appealed.
DISCUSSION
Mother contends the juvenile court erred by failing to find the beneficial parental relationship existed and constituted an exception to adoption as a permanent plan. Although she correctly acknowledges the heavy burden she bears in proving the exception, she argues that her relationship with all four minors was parental in nature and that the benefit of that relationship outweighed the benefit of permanency, based only on the slim record of her relationship with the minors which we have described. This evidence is far from sufficient to show the relationship's required benefit to the minors.
At the selection and implementation hearing held pursuant to section 366.26, 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. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which 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 party claiming the exception has the burden of establishing an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)
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).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) We review with deference a juvenile court's rejection of an exception to adoption. (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]; Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 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." (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. (2002) 97 Cal.App.4th 454, 466.)
Here, mother can show neither a substantial attachment nor great harm. Although mother visited regularly with the minors and the visits went well, she failed to show the minors had a significant, positive, emotional attachment to her that would outweigh the well-being the minors would gain in permanent homes with new, adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) All four minors were adjusting well in their new homes, and referred to their caregivers as mom and dad. Although Dy and Da expressed missing their mother, at the time of the hearing they were happy living in their new home, felt safe and cared for, and had stopped asking as often about their mother. Dennis and De were bonding with their current caregivers. At the time of the court's ruling, Dennis had never lived with his mother in his nearly two years of age, and De had lived with mother only 20 months of her three and one-half years of age. Due to mother's relapse, they had visited her overnight only on occasion, over a period of several months in 2015. While mother may have attended some of De and Dennis's medical appointments prior to January 2015, all four minors looked to their caregivers for their needs. Moreover, the time De, Da, and Dy spent living with mother was characterized by exposure to domestic violence and drug abuse. Dennis was mother's second drug exposed child. The trial court did not err in finding that the beneficial parental relationship exception did not apply in this case.
DISPOSITION
The orders of the juvenile court are affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Mauro, J.