Opinion
E074259
06-24-2020
In re A.L. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.D., Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1200745) OPINION APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and Prabhath D. Shettigar, Deputy County Counsel for Plaintiff and Respondent.
Mother appeals the juvenile court's order terminating her parental rights and freeing her three daughters for adoption by their current caregivers. She argues the court erred in failing to apply the parental benefit exception because she shared a strong bond with her daughters. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) We conclude the court correctly determined the exception does not apply to mother. Though her daughters enjoyed seeing her during visits and expressed a desire for continued contact with her after adoption, positive contacts, on their own, do not constitute a compelling reason to deprive a dependent child of the permanency benefits of adoption. (See In re Bailey J. (2010) 189 Cal.App.4th 1308, 1316.) The girls are happy and comfortable in their new home and there is no evidence they would suffer detriment from the termination of mother's parental rights. We therefore affirm.
I
FACTS
A. Facts Leading to Jurisdiction
The subjects of this dependency are mother's three oldest daughters—AM, who is now 10 years old; K, who is 8; and A, who is 6. Mother, AM, and A are hearing impaired and communicate through American Sign Language (ASL). Mother is 34 years old and has struggled with an addiction to methamphetamine for nearly a decade. In 2012, before A was born, the juvenile court took jurisdiction over AM and K due to mother's use of the drug, among other concerns. In April 2014, after 18 months of services, mother successfully reunified with her daughters and the court terminated the dependency.
A few years later, in September 2017, the Riverside County Department of Public Social Services (DPSS) received a referral alleging mother was using heroin and methamphetamine and had been letting K, the middle child, stay with her mother (the maternal grandmother), who lived with a registered sex offender. The reporting party also said mother had recently sent K to live with a couple because she couldn't take care of her anymore. According to the referral, K preferred to live with the couple than in mother's current home.
The social worker interviewed K at her elementary school. K, who was then six years old, said she had been living with the couple for the last week because "she could not stay with" mother and her boyfriend. She said mother and her boyfriend "fight all the time" and police have come to the home because of the fights. She didn't know what drugs were but said mother smokes a "vape" and is "sick so she sleeps all day." The social worker also interviewed AM, the oldest daughter, who was then 7 years old. AM said mother took medicine in pill and liquid form that caused her to "sleep, wake up, sleep, wake up." She said she took care of herself when mother was sleeping.
The social worker then interviewed mother at the home where she lived with her boyfriend. Mother admitted using methamphetamine "on and off three times daily" since she was introduced to it in 2011. She said she "sniffs lines" for "breakfast, lunch, and dinner" and had used the night before. She consented to a saliva swab drug test and tested positive for methamphetamine and THC. She said she had given K to her current caregivers on a temporary basis because she and her boyfriend were having trouble getting her to listen, but now she wanted her back.
DPSS filed dependency petitions for all three girls on October 13, 2017. The petitions alleged the girls were dependents under section 300, subdivision (b) (failure to protect) because mother had a chronic and unresolved history of methamphetamine abuse.
On October 16, 2017, the juvenile court detained the girls and ordered twice weekly supervised visitation for mother. In an interview on November 6, 2017, mother reported she had used methamphetamine the day before and acknowledged she needed to stop. She said she had started using drugs in 2007. She continued to use methamphetamine during the month of November and failed to show up for one of her visits.
At the contested jurisdiction and disposition hearing on December 6, 2017, the juvenile court found the allegations against mother true, adjudged all three girls dependents, and ordered family reunification services for mother.
B. The Six-Month Review Period
Mother cancelled or failed to show for all of her visits over the next two months, and attended only two visits in February 2018. She tested positive for or admitted to drug use several times in February and March 2018. In March, she entered an inpatient drug treatment program and began regularly visiting the girls. During this time, the girls were doing well in the foster home where they had all been placed together.
At the six-month status review hearing, the juvenile court continued family reunification services, finding mother was making progress on her case plan. She had completed her inpatient program, started an outpatient program, was completing a parenting education course, and had been sober for several months.
C. The 12-Month Review Period
In August 2018, DPSS placed the girls in a new foster home that was closer to mother to foster visitation and reunification. Unfortunately, mother relapsed in the fall. After having a positive methamphetamine test in September 2018, she told the social worker she had started using again. She tested positive twice the following month and admitted using the drug regularly, every few days. She cancelled three visits during the fall of 2018. She continued to use methamphetamine and refused to submit to testing in December 2018. She attended four visits in December but also cancelled four visits. During the visits she attended, she was appropriate and attentive to the girls' needs.
On January 7, 2019, DPSS placed the girls with the couple K had been living with before the dependency. The couple desired to adopt the girls if mother was unable to reunify with them. The girls were comfortable in their new home.
At the twelve-month review hearing on January 17, 2019, the court terminated mother's reunification services, reduced visits to once a month, and set a permanency planning hearing.
D. Termination of Parental Rights
At the initial permanency planning hearing in May 2019, the juvenile court continued the matter to let DPSS complete adoption assessments for the girls. The information before the court at the time was that the girls were doing well in their new home and had grown attached to their caregivers, who maintained their commitment to adopt them. The girls said they felt safe with their caregivers and were included in family activities and social events. AM was receiving therapy to reduce physical outbursts and aggression. She enjoyed school as well as swimming and gymnastics. K was receiving therapy to address coping skills and her relationship with AM. She also enjoyed school, where she was reported to behave well and have many friends. A, the youngest, was not in therapy. She was developing appropriately and exhibiting good behavior.
Mother missed her monthly visit in February and April 2019. She attended the March visit and was appropriate with the girls.
In August 2019, DPSS filed an adoption assessment report recommending the court select adoption with the current caregivers as the girls' permanent plan. The social worker reported that the girls had formed a "strong bond" with them. The caregivers are a gay couple who have been together for nearly 15 years and co-own an interior plant business. One of the caregivers has two children from a prior marriage with whom he still maintains close relationships. Both adult children support the adoption. The social worker described the caregivers as loving and responsible parents who are able to meet the girls' needs and provide a safe and permanent home. The social worker noted the couple had taken ASL classes in order to communicate with AM and A, had hired an ASL nanny, and were exploring services available to the hearing impaired.
The social worker reported the girls had made an "excellent adjustment" to the caregivers' home and are "clearly well bonded" to them. In her opinion, the girls were "thriving" in their care. They tell the caregivers they love them and call one "Daddy" and the other "Dad."
The social worker interviewed the girls separately about their feelings regarding adoption. AM said she liked living with the caregivers. She described them as kind and funny. When asked how she felt about being adopted by them, she said "Good, I like them; they're sweet." K said she liked "everything" about living with them. When asked how she felt about being adopted, she said, "I like it because my mom can't take care of me." The ASL interpreter had trouble understanding A during the interview because of her shyness.
Mother had three supervised monthly visits with the girls in the summer. She was attentive to them and they were happy to see her.
In September 2019, the girls' Court Appointed Special Advocate (CASA) filed a report with the court. She had visited with the girls on seven different occasions and believed they were comfortable in their new home and had a typical parent-child relationship with the caregivers. The CASA also observed the girls' visits with mother. She reported that AM and A play and interact with mother, but K lacked interest and played by herself. AM's therapist told the CASA that AM had made significant progress on reducing her aggression. The girls were doing well in school and had no behavioral issues. The CASA supported adoption.
A few days later, mother filed a section 388 petition asking the court to authorize six more months of reunification services. She said that, on her own initiative, she had started a new substance abuse program and had been sober for a substantial period of time.
On October 9, 2019 mother told the social worker she had been discharged from her substance abuse program because she was going on maternity leave. During the October visit, the girls interacted with mother at the beginning then played with their toys and each other for the remainder of the visit. K told the supervisor she did not want to be alone with mother. On November 6, 2019, mother told the social worker she had resumed her drug treatment program and was living with her fiancé and newborn daughter.
The court held the hearing on mother's section 388 petition and the permanency planning hearing on November 18, 2019. Mother testified that the reason she had relapsed in the fall of 2018 was because she had been living with relatives and the environment was tense and unsupportive. She said she is now in a much more stable environment living with her fiancé and her newborn daughter. She admitted she had tested positive for methamphetamine in March 2019 when she was pregnant with her newborn. She said she didn't find out she was pregnant until a few weeks later and the child was born drug free. She said the program she had found on her own after the reunification period had been more helpful than past services because it provided more support for the hearing impaired. She said she had been sober for five months and felt confident she could be a responsible mother to the girls.
She said the girls were excited to see her at visits and are affectionate, but she acknowledged she had to make extra effort with K. She felt she had a bond with her daughters and believed they would want to get to know their youngest sister.
Counsel for the girls provided stipulated testimony that AM would like to have continued contact with mother and be able to get to know her baby sister. K would also like continued visits with mother but she wanted to remain living with her dads. Counsel for the girls and DPSS recommended denying mother's petition because adoption was in the girls' best interests.
The juvenile court denied the petition. It commended mother on her efforts to maintain sobriety but found that, given her history of relapsing, she had demonstrated only that her circumstances were changing, not changed. It also found that reopening reunification would not be in the girls' best interests.
When the court turned to the permanency planning stage of the hearing, mother argued it should apply the parental benefit exception to terminating parental rights and select guardianship as the girls' permanent plan instead of adoption. DPSS argued the exception did not apply. Counsel for the girls agreed with DPSS, arguing that although mother's visits had become more consistent over the previous six months, they were "markedly inconsistent" during the reunification period.
The court concluded the exception did not apply and terminated mother's parental rights. It found that although mother's visits were, "for the most part," consistent, she had failed to demonstrate she shared "such a significant bond" with her daughters that they would be greatly harmed by the termination of her parental rights.
Mother filed a timely notice of appeal.
II
ANALYSIS
Mother argues the trial court erred by concluding the parental benefit exception did not apply. We disagree.
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"].) As a result, 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 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 court's finding on the existence of the beneficial parental relationship for substantial evidence. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.) Whether "the relationship is a 'compelling reason' for finding detriment to the child" is a "'quintessentially' discretionary decision" that we review for abuse of discretion. (Id. at p. 1315.)
"Appellate courts are divided over the appropriate standard of review for an order concerning the applicability" of the parental bond exception. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have reviewed the decision for abuse of discretion and others for substantial evidence. Other courts have combined the two and taken a hybrid approach, as we do. (Ibid.) Our Supreme Court recently granted review of the issue. (In re Caden C. (2019) 444 P.3d 665.) --------
Mother argues it's undisputed she satisfied the first element by maintaining consistent supervised contact with the girls. DPSS does not argue otherwise in its brief, and, as we've seen, the juvenile court found mother's visits were consistent "for the most part." Based on our review of the record, DPSS and the juvenile court have been generous with mother on this point. In fact, her visits were quite inconsistent during the reunification period and only became consistent afterward, when the juvenile court reduced their frequency to once a month. But we need not belabor the point because whether her visits could be considered consistent is not dispositive to our conclusion that the court properly refused to apply the exception.
What we do find dispositive is the lack of evidence to support the second element of the exception, that the parent-child bond was so substantial and positive that freeing the girls for adoption would be detrimental to their wellbeing. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) While there is evidence in the record that the girls liked being with mother, the visits were always appropriate, and AM and K wanted to have continued contact with her, there is also ample evidence the girls loved their caregivers, felt comfortable in their home, were thriving in their care, and wanted to be adopted by them. It is also significant that DPSS concluded the caregivers could provide the girls with a stable and loving permanent home, as well as that the CASA supported adoption and had no concerns the girls would suffer detriment if mother's parental rights were terminated.
We do not doubt that mother loves her daughters, but a parent's affection is simply not enough to warrant foregoing an adoption in a safe and stable home once reunification efforts have failed. 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 current caregivers, as the girls have here. "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.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621.) The evidence mother relies on to satisfy the second element of the exception— AM's and K's stipulated testimony that they desired continued contact with her and the social worker's descriptions of their visits as pleasant and appropriate—certainly supports an inference she was a loving adult in the girls' lives, but it falls short of demonstrating she occupied a parental role.
In re S.B., supra, 164 Cal.App.4th 289 and In re E.T. (2018) 31 Cal.App.5th 68, the cases mother relies on, are distinguishable. The father in In re S.B. became sober as soon as the court removed his daughter from his care, "complied with 'every aspect' of his case plan," and consistently visited her three times a week. (In re S.B., at p. 298.) The daughter was unhappy outside of his care, tried to leave with him at the end of visits, and had been assessed by a psychologist who opined she would be harmed if his parental rights were terminated. (Id. at pp. 296, 298.) In In re E.T., the mother's twin children were consistently anxious, uncertain, and fearful outside of her care, especially after visits, and their anxiety over where they were going to live was "persistent." (In re E.T., at p. 72.) By the time of the permanency planning hearing, the twins were still experiencing anxiety and the agency told the court it believed the mother "should always be a presence in the children's lives." (Id. at p. 73.) The most obvious difference in this case is that the record contains no evidence the girls have or will suffer harm because they are no longer in mother's care. None of the girls expressed a desire to return to mother's care and in fact K expressed the opposite desire when she told the DPSS supervisor she didn't want to be alone with mother and testified she wanted to be adopted by her caregivers.
"Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re C.F. (2011) 193 Cal.App.4th 549, 557.) Because mother's interactions with the girls occurred at most a few times a month, and always under supervision, the juvenile court could reasonably conclude she did not occupy a significant parental role in the girls' lives and that adoption was in their best interests. (In re Bailey J., supra, 189 Cal.App.4th at p. 1316 [exception did not apply where "[a]t best, mother's supervised interactions with [her daughter] amounted to little more than playdates for [her] with a loving adult"].)
III
DISPOSITION
We affirm the order terminating mother's parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
Acting P. J. We concur: FIELDS
J. MENETREZ
J.