Opinion
E072556
09-12-2019
In re K.L., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, A.M. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant, D.L. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath Shettigar, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ1700531) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, A.M. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant, D.L. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Mother and father appeal the order terminating their parental rights and freeing their 4-year-old daughter for adoption by her paternal uncle and his fiancée. Mother argues the juvenile court erred in failing to apply the parental benefit exception to terminating her parental rights, and father argues his rights should be reinstated for the same reason. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) We disagree.
The child was detained at two years of age and has spent the last two years in the care of her prospective adoptive family, with whom she has bonded. Her relationship with mother exists within the confines of supervised visits. That those visits were positive and consistent is not, on its own, a compelling reason to deprive the child of the permanency benefits of adoption. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316.) Father's visits were not regular, and his appeal relies on mother prevailing. We therefore affirm the order as to both parents.
I
FACTS
A. Detention & Jurisdiction
On October 02, 2017, the Department of Public Social Services (department) received a referral after two-year-old K.L. was taken to a hospital with insect bites on her legs and trunk and a large thigh bruise that looked like it might be "part of the trauma caused by . . . domestic abuse." Her physician conducted a Child Abuse and Neglect (CAN) examination. He said the child "appeared 'sickly' possibly from ongoing drug exposure, lifestyle, and neglect." Though she was in the normal height and weight ranges for her age, she seemed to have infected flea bites on her legs. The family had several earlier referrals, including referrals for methamphetamine use, domestic violence, and neglect evidenced by infected flea bites on K.L.'s body.
Mother took a drug test, which revealed high levels of methamphetamines, amphetamines, and marijuana. The child had a hair follicle drug test, which was also positive—for methamphetamines, amphetamines, and cocaine. According to the examining physician, K.L.'s results showed this was "not just a casual exposure, but would have had to be a fairly concentrated amount, to incorporate into her body over time." The doctor said "an adult knows or should have known that the child was being exposed to the drugs." He said such exposure can cause substantial and life-threatening health conditions, and concluded K.L. had been subjected to neglect and physical abuse.
The department removed her from her parents' custody and placed her with her present caregivers, her paternal uncle and his fiancée, on October 11, 2017. The department filed a section 300 petition the same day, alleging K.L. was exposed to her parents' domestic violence and use of controlled substances.
On October 16, 2017, the trial court detained the child and found father to be her presumed father. The court ordered the parents to drug test before their twice weekly supervised visitation and made visits conditional on parents being sober and returning clean tests.
Both parents tested positive for drugs on October 18, 2017. On October 26, 2017, mother tested negative and had an appropriate visit. Father tested positive and did not visit K.L.
On November 8, 2017, the trial court sustained the department's second amended petition, found the child to be a dependent and ordered family reunification services be provided to both parents. Their case plan required them to obtain parenting, domestic violence, counseling, and substance abuse services.
B. Failed Reunification
During her first six months of reunification services, mother made some progress on her plan, but stumbled repeatedly with drug use. She completed an inpatient drug treatment program on February 2, 2018 and enrolled in a domestic violence program. Though the program and the department wanted her to stay longer, father worried about her losing time to look for work. She attended some counseling, parenting, and outpatient treatment services. She also returned 13 negative drug tests. However, she tested positive four times and missed one test. On April 19, she was terminated from her outpatient program because of attendance problems. Later, she tested positive for marijuana and failed to appear at three other tests. In the meanwhile, she became pregnant with her second child with father.
Father had even less success fulfilling his reunification plan. Since he doesn't appeal the termination based on his success at reforming his conduct, we need not go into details. --------
At the contested six-month status review hearing in June 2018, the trial court extended reunification services to both parents, but admonished them not to use controlled substances.
During the second six-month reunification period, mother completed a parenting program and tested negative 14 times. But she also tested positive at least five times, produced diluted samples five times, and failed to appear twice. She tested positive for benzodiazepines repeatedly, without a valid prescription. In August 2018, a social worker found on social media evidence that she had been attempting to obtain Xanax, Adderall, Ritalin, and cocaine. She admitted drinking alcohol, but falsely denied testing positive for benzodiazepines regularly and falsely claimed she had provided prescription information previously. She declined to participate in an intensive outpatient drug program. Later, she admitted taking Xanax, which explained her positive test for benzodiazepines. Her therapist said she was "struggling to function without using marijuana/alcohol to 'self-medicate.'"
On December 10, 2018, at the contested 12-month review hearing, the trial court terminated both parents' reunification services, ordered monthly supervised visits, and set the matter for a section 366.26 hearing. The court also ordered the department to make the child available at mother's counsel's request for a bonding study.
C. Mother's Relationship with K.L.
Mother visited K.L. consistently after the child was detained up to, and including, the period after termination of her parental rights.
Mother was loving and appropriate during supervised visits. She arrived on time and engaged and played with K.L. Mother and K.L. would read books and watch movies. K.L. seemed to "enjoy her visits and there are times when she does not want the visit to end. Alternatively, there are times when she has been ready for the visit to end prematurely." For the most part, mother demonstrated appropriate parenting during visits, though she didn't always bring appropriate snacks and she sometimes chose to end her visits early.
There were, however, signs that the visits caused K.L. stress. K.L. experienced night terrors after some visits. Her eczema appeared to get worse. After some visits, she became easily upset and experienced nightmares. The social worker noted, K.L "shows no need for affection" from her parents after seeing them, "does not ask about her parents in between visits and has rarely mentioned them in the time the caregivers have had her in their care."
On April 9, 2019, mother's counsel filed a psychologist's bonding study report prepared on K.L. and her parents. The psychologist found K.L. to be developmentally normal and able to speak in complex language. Her behavior was appropriate for a four year old and she didn't exhibit any significant speech delays or behavior problems like tantrums or acting out. The psychologist reported she readily bonded with him and played alone with him without fear.
According to the report, K.L. recognized her parents and immediately hugged them and seemed happy to see them. After K.L. and her mother played together a while, the psychologist asked mother to leave the play room. K.L. didn't become markedly upset and was willing to spend some time alone with the psychologist.
After interviewing the parents, the psychologist returned the child to her caregiver who was waiting in another room. K.L. hugged her uncle and said she missed her "Mommy and Daddy." The psychologist concluded K.L. "did not show any bonding or emotional difficulties transitioning from one person to the next." He said she had a bond with her natural parents, but also said he could not "make any recommendations in terms of visitations or custodial care of this child. I have not psychologically evaluated either parent and am in no position based on the limited insight I gained this morning to make a more global comment on their relationship. I can, however, say that clearly the child does have a bond with both parents and her bond towards her mother was quite notable. Whether, in fact, this bond is worthy of any change in the custodial arrangement deemed appropriate by the court I cannot comment on."
D. Relationship with Caregivers
K.L. appeared to be thriving in her placement, was developmentally on target and bonded to her caregivers. The department recommended the caregivers be allowed to adopt the child.
The social worker reported K.L. is a physically healthy, happy, and talkative child who enjoys playing with her dolls. She has healthy eating and sleeping patterns. She has "an amazing connection and attachment with the prospective adoptive parents. She was also observed to be very polite and smart." She sometimes has behavioral issues at school, but the behaviors were being addressed in therapy. K.L. adjusted well to her new home and her speech improved. She bonded with her caregivers, who provided for her medical, behavioral, and emotional needs. The caregivers are committed to adopting her.
E. Section 366.26 Hearing
On April 9, 2019, at the contested section 366.26 hearing, the parents argued the beneficial relationship exception applied, and the court should decline to terminate their parental rights.
The trial court found mother had proved she made regular visitations, but failed to show termination would be detrimental to K.L. and outweigh the benefit of adoption. The court said for a child like K.L., who was "so young, who has lived consistently in a home and who is being cared for so well and so consistently, let's face it, that's a pretty high standard to meet for someone who does not offer a similar future for the child, and instead just offers the relationship that, you know, you were born to me, you are my biological child and I care for you just under the first couple of years of your life." The court concluded mother had not met her burden of showing the parental benefit exception applies.
The trial court therefore terminated parental rights. Both parents filed timely notices of appeal.
II
ANALYSIS
Mother argues the trial court erred in finding the parental benefit exception doesn't apply. (§ 366.26, subd. (c)(1)(B)(i)); In re J.C. (2014) 226 Cal.App.4th 503, 507.) Father joins in mother's arguments.
When a parent fails to reunify and the dependency enters the permanency planning stage, the focus shifts from keeping the family together to the needs of the child for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 ["By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount"].) Thus, the Legislature prefers adoption as the permanent plan where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) "At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.)
Once the juvenile court finds a child is adoptable, the parent bears the burden of proving an exception to terminating parental rights applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343) "[I]t 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., supra, 78 Cal.App.4th at p. 1350.) The parental benefit exception at issue here applies when (i) the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" and (ii) the court finds that the parent-child relationship presents a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B)(i).)
Beginning with In re Autumn H. (1994) 27 Cal.App.4th 567, our appellate courts have routinely interpreted the parental benefit exception to apply to only those parent-child relationships the severance of which "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (Id. at p. 575; In re Jasmine D., supra, 78 Cal.App.4th at pp. 1347-1348; In re G.B. (2014) 227 Cal.App.4th 1147, 1161.) "The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)
"[T]he 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. 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." (In re J.C., supra, 226 Cal.App.4th at pp. 528-529, italics added.) We review the juvenile court's determination of whether the exception applies for substantial evidence. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
In this case, it is undisputed mother (though not father) maintained positive and consistent supervised contact with K.L. We therefore turn to whether she demonstrated they shared such a substantial, positive emotional attachment that freeing her daughter for adoption would pose a great detriment to her. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother argues she carried this burden because the record showed K.L. enjoyed their visits very much and was bonded to her. We acknowledge mother consistently attended her visits with K.L., and K.L. had positive reactions to her. Unfortunately for mother, this evidence falls short of establishing their relationship was so positive and substantial it outweighed the benefits of living in a permanent home with her uncle and his fiancée. The parental benefit exception does not apply where the parent "has frequent contact with but does not stand in a parental role to the child." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
Mother argues she did occupy a parental role during visits, which was the only time she could interact with K.L. and prove the strength of their bond. She points to evidence, including the psychologist's report, that her visits were appropriate and loving and that K.L. said she missed her afterward. However, this paints an incomplete picture. The psychologist pointedly refused to conclude in his bonding study report that K.L.'s bond with her mother was so strong that the court should change the custodial or visitation arrangement. Moreover, he reported K.L. had no difficulty with transitions, including going back to his caregiver after visiting with mother. Moreover, the department observed visits with her parents appeared to cause K.L. stress. They noted, K.L "shows no need for affection" from her parents after seeing them, "does not ask about her parents in between visits and has rarely mentioned them in the time the caregivers have had her in their care."
It is also significant that K.L. exhibited a strong bond with her prospective adoptive parents. The social worker reported K.L. is a physically healthy, happy, and talkative child and has "an amazing connection and attachment with the prospective adoptive parents," who are committed to adopting her.
In any event, because mother's interactions with K.L. occurred at most once or twice a week, and only under supervision, the juvenile court could reasonably conclude mother did not occupy a significant, positive role in K.L.'s life, but rather filled the role of a loving adult. (In re Bailey J., supra, 189 Cal.App.4th at p. 1316 ["At best, mother's supervised interactions with [her daughter] amounted to little more than playdates for [her] with a loving adult"].)
Our courts have emphasized time and again that positive and loving visits, on their own, are not enough to outweigh the permanency benefits of adoption, especially where the child has developed a bond with the prospective adoptive family. "No matter how loving and frequent the contact, and notwithstanding the existence of an 'emotional bond' with the child, 'the parents must show that they occupy "a parental role" in the child's life.' [Citations.] The relationship that gives rise to this exception to the statutory preference for adoption 'characteristically aris[es] from day-to-day interaction, companionship and shared experiences.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621.)
We do not doubt mother cares deeply for K.L., but she has not shown the juvenile court erred in finding the parental benefit exception did not apply. Since father's appeal turns on mother prevailing, we affirm the order terminating parental rights as to both parents.
III
DISPOSITION
We affirm the order.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.