Opinion
E080792
07-18-2023
In re E.F., a Person Coming Under the Juvenile Court Law. v. C.F., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant C.F. Tom Bunton, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J290551 Erin K. Alexander, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant C.F.
Tom Bunton, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER, ACTING P. J.
The juvenile court terminated defendant and appellant's, C.F. (mother), parental rights as to E.F. (the child; born August 2021). On appeal, mother contends the court erred in declining to apply the beneficial parental relationship exception to termination of her parental rights. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Personnel from respondent, San Bernardino County Children and Family Services (the department), received a referral on August 31, 2021, alleging mother gave birth to the child while in Las Vegas, Nevada. The child tested positive for methamphetamine, amphetamines, and opiates. Mother tested positive for methamphetamine and amphetamine; she admitted using drugs as recently as July.
The child was admitted to the NICU. Mother left the state as soon as she was discharged. Minor was transferred to a NICU in Desert Regional Medical Center on August 30, 2021.
A juvenile court had previously terminated mother's parental rights as to her oldest child, A.F. A.F. was born prematurely with methamphetamine and marijuana in his system. Mother had admitted to using methamphetamine during her pregnancy with A.F.
Mother reported that her other child, J.F., had been in the maternal grandfather's care for the past three months. The maternal grandfather reported that J.F. would go" 'back and forth'" between mother and he for the last" 'ten to eleven months.'" The social worker took the child into protective custody pursuant to a warrant on September 10, 2021.
J.F. is not a party to this appeal.
The department filed a Welfare and Institutions Code section 300 petition alleging, as to mother, that she had previously had her parental rights terminated as to A.F. (b-1 and j-4) and that she had substance abuse issues (b-2). On September 15, 2021, the court detained the child.
All further statutory references are to the Welfare and Institutions Code.
On January 19, 2022, the department amended the petition to add allegations against father, who is not a party to the appeal. The amended petition renumbered the j-3 allegation j-7.
In the jurisdiction and disposition report filed on October 1, 2021, the social worker recommended the court deny mother reunification services pursuant to the bypass provisions of section 361.5, subdivision (b)(10) and (11). On September 24, 2021, the social worker asked "mother if she was using substances and the mother avoided answering the question directly ...." Mother requested an inpatient treatment program because she was" 'struggling too much.'" Mother's history of substance abuse started in 2011 when she was 18 years old. Mother failed to appear for an on-demand drug test.
In a February 9, 2022, additional information for the court, the social worker again reported that mother requested an inpatient drug program as an outpatient program was "not effective for her level of addiction." Mother reported that "she [was] chronically missing appointments and drug screenings ...." On January 7, 2022, the department placed the child with the paternal grandparents.
In an additional information for the court filed April 11, 2022, the social worker reported the department referred mother to inpatient services as she requested. However, mother failed to complete an intake evaluation. A counselor reported calling mother on multiple occasions without receiving a return call. Mother had yet to enroll in an inpatient or outpatient substance abuse treatment program. Mother failed to show for all seven random drug tests during the reporting period.
In an additional information for the court filed June 28, 2022, the social worker reported mother's visits with the child were deemed appropriate. Mother failed to show for all seven on-demand drug tests since the last report.
At the contested jurisdiction and disposition hearing on June 28, 2022, the department asked that the court enter all the reports into evidence. Mother's counsel objected "to all of the allegations, Your Honor. No affirmative evidence." The court accepted the documents into evidence, found the allegations in the amended petition true as to mother, and continued the matter for disposition.
The hearing had been continued numerous times due to issues of determining paternity and compliance with the Indian Child Welfare Act: "The case has had some changes due to the length of time it's taken us to get here."
In an additional information for the court filed August 29, 2022, the social worker reported the "department has been unsuccessful in maintaining regular contact with the mother ...." Mother failed to show for all eight requested drug tests. The child appeared stable in her placement.
At the dispositional hearing on August 31, 2022, the department moved the court to receive all reports into evidence; mother's counsel noted, "I am objecting to the report and recommendations." Mother's counsel objected to the recommendation that the court deny mother reunification services pursuant to the bypass provisions of section 361.5, subdivision (b)(10) and (b)(11), objected to the setting of a section 366.26 hearing, and requested the court grant mother reunification services, but introduced no "affirmative evidence." The child's counsel submitted on the recommendation. The court removed the child from mother's custody, found the bypass provisions applied, denied mother reunification services, and set the section 366.26 hearing.
In a November 29, 2022, additional information for the court, the social worker reported that she had been unable to reach the mother as mother's phone was no longer accepting calls or messages. In the section 366.26 report filed December 9, 2022, the social worker recommended the court terminate mother's parental rights.
The social worker noted the child appeared to be attached to the paternal grandparents, who were the prospective adoptive parents. The paternal grandmother took family leave for 12 weeks during which she felt she became "very close" to the child. The child "appears to be secure and comfortable in the home. She clearly looks to either care provider with the expectation that her needs will be met." The child referred to the paternal grandparents as" 'Mom' and 'Papa. '" The paternal grandmother stated of the child," 'I love her and she loves me. We have a great relationship.'" " 'She follows me around the house.' "
The child visited regularly with a sibling who lived nearby. The child had FaceTime visits with another sibling who lived in Northern California. The paternal grandparents agreed on a plan of adoption; they had developed mutual attachments and were committed to raising her to adulthood. The paternal grandmother said she wanted to adopt the child," 'Because I love her and she's my little girl. She deserves to be in a stable and consistent home. She needs to be in an environment where she can grow and thrive.'" The paternal grandfather stated," 'She's meant to be with family. She deserves a good life.' "
Mother visited the child every week for two hours. "The caretaker indicates the visits are uneventful." Mother paid attention to the child and participated in FaceTime visits with the child and her sibling, J.F.
At the section 366.26 hearing on February 21, 2023, the department requested the court take the reports into evidence. Mother's counsel objected "to the report and recommendations, asking the Court not terminate mother's rights, asking the Court to adopt a lesser plan such as legal guardianship, no affirmative evidence." The court took the reports into evidence.
Minor's counsel requested the court adopt the recommendation to terminate mother's parental rights: "Although the [mother] [has] been visiting consistently, there is no indication the [mother] [has] addressed the issues that led to dependency. The benefit is outweighed by the detriment and the minor is thriving in caregivers' care. She's [one] year[] old. She has been placed with [the] caregivers since January of last year and she's thriving in their care." The department joined the child's counsel's argument.
The court found minor "both generally and specifically adoptable." "She's been placed with her grandparents for a significant period of time, and throughout the history of the case she's thriving in their care. And there are no impediments to adoption."
Mother's "issue then is whether there are any exceptions that apply and the exception being argued is the parental bond exception. But the law is quite clear once we get to this point that once services are denied or terminated that the focus shifts to the needs of the child for permanency and stability, that adoption is the preferred order and should be ordered unless there are exceptional circumstances."
The court found that, "Although the parents have had visitation, the parents have not shown that there's a positive emotional attachment that would benefit the child. The child has been out of parental care and placed with the relatives for a significant portion of her life. She's thriving in her care. There's no evidence of any detriment to the minor, and the description in the report is that she's secure and comfortable and attached in her current home, [a]nd that adoption would provide her with 17-plus years of stability." The court terminated mother's parental rights.
II. DISCUSSION
Mother contends the court erred in declining to apply the beneficial parental relationship exception to the termination of her parental rights. Mother argues the reports were insufficient to support the court's order.
The department maintains that mother forfeited the arguments because she failed to object below to the reports on the specific basis that they lacked sufficient information on visitation and because she failed to raise the applicability of the beneficial parental relationship exception below. Regardless, the department argues substantial evidence supports the court's order. We agree with the department.
A. Sufficiency of the Reports
Mother contends the reports were insufficient because they "did not include a review of the amount and nature of contacts between [the child] and her mother." The department maintains mother forfeited the issue by not specifically raising it below. We agree with the department.
"Whenever the juvenile court orders a section 366.26 permanency planning hearing, it must direct the Department to prepare an adoption assessment. [Citations.] The assessment must include, among other things, 'A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement ....' [Citation.] Deficiencies in an assessment report go to the weight of the evidence, and 'if sufficiently egregious may impair the basis of a court's decision to terminate parental rights.' [Citation.] An adoption assessment is sufficient if it substantially complies with the requirements of the assessment statute. [Citation.] '[E]ven if the assessment is incomplete in some respects, the court will look to the totality of the evidence.' [Citation.]" (In re M.M. (2022) 81 Cal.App.5th 61, 67, rev. granted Oct. 12, 2022, S276099 (M.M.).)
Where "no objection to the sufficiency of the assessment reports was made at time of trial, [we] refer to the familiar principle that failure to object to the admission of improper or inadequate evidence [forfeits] the right to raise the issue on appeal. [Citation.] If the complaint on appeal be deemed not the admissibility, as such, of inadequate assessment reports, but substantive insufficiently to establish requisite findings, this complaint, too, [is] [forfeited] by failure to raise it at the trial level. [Citation.]" (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412, fn. omitted; accord M.M., supra, 81 Cal.App.5th at pp. 67-68 [Mother cannot challenge the adequacy of an assessment when she did not object on that basis below]; In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [failure to raise adequacy of report below forfeited issue on appeal]; In re Mary C. (2020) 48 Cal.App.5th 793, 801 [by failing to object in the juvenile court to specific defects in the reports, parents forfeit any challenge to them on appeal].)" 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.]' [Citation.]" (In re Daniel B. (2014) 231 Cal.App.4th 663, 672.)
Here, mother never objected to the reports on the specific basis that they lacked sufficient information on visitation between mother and the child. Moreover, the implication of mother's general objection to the reports is that she was objecting to the department's recommendation to terminate her parental rights, not to the paucity of information regarding visitation.
Furthermore, the juvenile court had already continued the matter numerous times due to issues of determining paternity and to ensure compliance with the Indian Child Welfare Act; it is likely the court would have proved equally willing to continue the matter to ensure the filing of proper reports had mother simply interjected a timely objection on that specific basis. Finally, we note there were other ways mother could have made up for the dearth of information in the reports on visitation, such as requesting the case logs, testifying herself, or having the individuals who supervised the visits testify. Mother's failure to do any of these forfeited any objection to the lack of information on visitation in the reports.
B. Failure to Raise Exception Below.
The department also contends mother forfeited the issue of the applicability of the exception by failing to raise it below. We agree.
"If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence. [Citation.] Allowing the [parent] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence. Therefore, the [parent] has [forfeited] his right to raise the exception. [Citation.]" (In re Erik P. (2002) 104 Cal.App.4th 395, 403 [sibling relationship exception]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252 [beneficial parent-child relationship exception]; see In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [relative caregiver exception]; see also In re Daisy D. (2006) 144 Cal.App.4th 287, 292 [sibling relationship exception].)
Here, mother never raised the beneficial parental relationship exception, nor did she produce any evidence to support it. Although the court later raised the issue itself or believed it was responding to mother having raised the issue, the court's reasoning was not based on any evidence produced nor argument made by mother's counsel. Thus, mother deprived the court of the critical facts and arguments necessary to make a record on the issue. Mother forfeited the issue by not raising it below.
C. Beneficial Relationship Exception.
Even assuming mother has preserved the issue for review, the court acted appropriately in denying its applicability.
"[T]he goal at the section 366.26 hearing is 'specifically . . . to select and implement a permanent plan for the child.' [Citations.] To guide the court in selecting the most suitable permanent arrangement, the statute lists plans in order of preference and provides a detailed procedure for choosing among them. [Citation.] According to that procedure, the court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan. [Citation.] As we have previously explained, '[t]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).)
"The exception at issue in this case is limited in scope. It applies where '[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.' [Citation.] From the statute, we readily discern three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631.) It is the parent who must prove all three elements by a preponderance of the evidence; the parent must "show a 'compelling reason for determining that termination would be detrimental to the child ....'" (Id. at p. 635.)
Here, the court impliedly found mother had met the first prong of the beneficial parental relationship exception, that mother had had regular visitation with the child. Thus, we address only the second and third prongs, beneficial relationship and detriment.
1. Beneficial Relationship
On the second element, "the parent must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) Courts "assess whether 'the child would benefit from continuing the relationship.' [Citation.] Again here, the focus is the child. And the relationship may be shaped by a slew of factors, such as '[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.'" (Id. at p. 632.) "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child ...." (Ibid.)
We review whether there is a beneficial relationship for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) "[I]n assessing visitation and the relationship between parent and child, the court must make a series of factual determinations. These may range from the specific features of the child's relationship with the parent and the harm that would come from losing those specific features to a higher-level conclusion of how harmful in total that loss would be. The court must also determine, for the particular child, how a prospective adoptive placement may offset and even counterbalance those harms. In so doing, it may make explicit or implicit findings ranging from specific benefits related to the child's specific characteristics up to a higher-level conclusion about the benefit of adoption all told. All these factual determinations are properly reviewed for substantial evidence." (Id. at p. 640.)
Substantial evidence supported the court's finding that the child did not have a beneficial relationship with mother. Here, mother had the burden of proving each child had "a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) However, mother never had custody of the child. The child was in the NICU for slightly more than the first month of her life. Mother left Nevada once discharged from the hospital and did not visit with the child.
The court found that mother had failed to show "a positive emotional attachment that would benefit the child." As noted above, mother could have testified as to any bond, or called those supervising visitation to testify; however, she did neither. Mother could have, but did not, request a bonding study, which may have helped her establish an evidentiary basis for determining there was such a bond. (Caden C., supra, 11 Cal.5th at p. 633, fn. 4 ["courts should seriously consider, where requested . . ., allowing for a bonding study"], italics added.) Thus, mother failed her burden of establishing a beneficial bond such that the court's order was supported by substantial evidence.
2. Detriment
"[I]n assessing whether termination would be detrimental, the trial court must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home. [Citation.] By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Caden C., supra, 11 Cal.5th at p. 632.) "Because terminating parental rights eliminates any legal basis for the parent or child to maintain the relationship, courts must assume that terminating parental rights terminates the relationship. [Citations.] What courts need to determine, therefore, is how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Id. at p. 633.) "[T]he question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Id. at p. 634.)
"[W]hether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion." (Caden C., supra, 11 Cal.5th at p. 640.) "A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.] But '" '[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" '" (Id. at p. 641.)
The court acted within its discretion in finding that termination of mother's parental rights would not be detrimental to the child. Here, as discussed ante, mother failed to establish a beneficial relationship between her and the children.
On the other hand, the child had been in the care of the paternal grandparents for over 13 months. The child appeared to be attached to them. The paternal grandmother took 12 weeks of family leave to be with the child, during which she felt they became "very close." The child appeared secure and comfortable in the home. She referred to the paternal grandparents as" 'Mom' and 'Papa.'" The social worker reported that paternal grandmother stated of the child," 'I love her and she loves me. We have a great relationship.'" " 'She follows me around the house.' "
The child regularly visited with a sibling who lived nearby. The paternal grandmother said she wanted to adopt the child," 'Because I love her and she's my little girl. She deserves to be in a stable and consistent home. She needs to be in an environment where she can grow and thrive.'" The paternal grandfather stated," 'She's meant to be with family. She deserves a good life.'"
Mother failed to make a compelling showing that the loss of the child's relationship with her would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home with the prospective adoptive parents. Thus, the court acted within its discretion in determining the circumstances were not exceptional, such that the termination of mother's parental rights would not be detrimental to the child.
III. DISPOSITION
The judgment is affirmed.
We concur: MILLER, J. FIELDS, J.