Opinion
E074020
03-11-2020
In re R.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.P., Defendant and Appellant.
Jamie A. Moran, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J265231) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Jamie A. Moran, by appointment of the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
C.P. (mother) appeals from an order terminating parental rights to her now-five-year-old daughter R.P. (sometimes child). She contends that the juvenile court erred by declining to find that the "beneficial parental relationship" exception applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) This "may be the most unsuccessfully litigated issue in the history of law . . . ." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) It can have merit in an appropriate case; however, this is not such a case. Hence, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The mother was "profoundly" deaf. When she was four, she was placed in foster care. Later, she was adopted; when she was 12, however, she was removed from her adoptive home, due to sexual abuse, and placed in a series of group homes.
As of April 2016, the mother was 18. She was a nonminor dependent. The child was one, going on two. They were living together in the mother's group home.
In that month, Children and Family Services (CFS) received a report that the child's right elbow had been dislocated, possibly due to the mother "yanking" on her arm. It was also reported that the mother would have sex in the child's presence; the child would "hump[]" other children; the mother was always on her cell phone instead of caring for the child; the mother would go out for hours, leaving the child at the group home; and the mother would lock the child in a room, where the child would "scream uncontrollably."
When interviewed, the mother denied the allegations. However, she admitted smoking marijuana in the back seat of a car while the child was watching a movie on a cell phone in the front seat. She also admitted that the child had begun self-harming.
The mother refused to name any potential fathers.
CFS detained the child and filed a dependency petition regarding her. She was placed in foster care with a Mr. and Ms. B. In or before June 2016, the mother was terminated from her group home. She moved in with her sisters.
In July 2016, at the jurisdictional/dispositional hearing, the juvenile court found jurisdiction based on failure to protect. (§ 300, subd. (b).) It ordered reunification services for the mother.
This and all further statutory citations are to the Welfare and Institutions Code.
In August 2016, the child was removed from the B.'s, because they had used corporal punishment on her, and placed with a Mr. and Ms. D.
Sometime between September 2016 and April 2017, the mother moved in with a new boyfriend. In February 2018, during an extended visit, the mother punched her boyfriend in the child's presence. She then refused to return the child to the foster parents; she relented only when the boyfriend threatened to call the police. The child was left "traumatized, afraid and conflicted."
In June 2018, at the 24-month review hearing (§ 366.25), the juvenile court terminated reunification services and set a section 366.26 hearing.
In September 2018, the D.'s gave notice of termination of the placement, because the child was too clingy, which was negatively affecting their relationship with their other children.
In October 2018, at the section 366.26 hearing, the juvenile court adopted a permanent plan of foster care, with the goal of adoption.
In November 2018, the child was placed with prospective adoptive parents (name not in the record). However, they decided not to adopt, again because the child was too clingy.
In February 2019, the child was placed with different prospective adoptive parents, a Mr. and Ms. F. They had no other minor children.
In April 2019, at a post-permanency review hearing (§ 366.3, subd. (d)), the juvenile court once again set a section 366.26 hearing.
In October 2019, at the section 366.26 hearing, the juvenile court found that the child was adoptable. It also found that there was no applicable exception to termination. It therefore terminated parental rights.
II
THE BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION
A. Additional Factual Background.
The evidence admitted at the section 366.26 hearing consisted of three specified social worker's reports, plus the mother's oral testimony. We confine our consideration to this evidence (see § 366.26, subd. (b)), which showed the following.
The mother had supervised visitation. She had been visiting for four hours once a week. In April 2019, however, the juvenile court reduced this to four hours once a month.
She had been visiting "sporadically." According to visitation logs, in March 2019, five visits were scheduled. The mother cancelled four; at the fifth, she arrived late and left early.
In April 2019, three visits were scheduled. The mother was late to the first; the second conflicted with a court hearing, but she did not reschedule; and she rescheduled the third for May.
In May through October 2019, one visit per month was scheduled, for a total of six. At two visits, she arrived late and left early. She canceled (or failed to confirm) three visits. She attended only one visit in its entirety.
The mother, however, testified that she did not miss any visits before August 2019. She also claimed that she had "struggled with . . . transportation issues."
In August 2019 the mother moved to Texas, "looking for a job and [to] get an apartment . . ."; that was why she missed the September visit. By the time of the hearing, she had decided to return to California.
According to the mother, at the beginning of visits, the child would be shy, but only for 10 minutes or so. During visits, the mother taught the child sign language, read to her, talked to her, fed her, and gave her gifts. The child called the mother "Mom" and said she loved her. Sometimes, when told it was time to leave, the child appeared dejected. The mother felt that she and the child had "a significant bond."
CFS makes much of the fact that, when first asked whether she had a bond with the child, the mother replied, "What do you mean 'bond'?" It must be remembered, however, that she was testifying through a sign language interpreter. At times, the mother seemed to be having trouble with the interpretation process. Thus, there was room for misunderstanding. For example, the sign used for "bond" may have been ambiguous or incorrect.
According to the social worker's reports, however, the child called the mother by her first name. The mother "did not engage with [the child] during the visits." She did not take the initiative in caring for the child. During visits, she texted on her phone; she even fell asleep. The child would sit on the mother's lap watching movies on her cell phone.
As of August 2018, the child seemed conflicted about visits; sometimes she looked forward to them, and sometimes she said she did not want to go. She seemed to enjoy the visits, but she had a hard time readjusting to the then-foster mother. She was having regressive behaviors and tantrums, which, according to the social worker, were "related to the unpredictable transitions surrounding visitation." In one social worker's opinion, the child looked forward to visits only because she knew she would get gifts.
By July 2019, the child had indicated that "she does not value" the visits. After visits, she was "melancholy." She did not talk much about the mother. The visitation supervisor reported "a lack of emotional bond" between the child and the mother.
When the mother's attorney asked the mother why her parental rights should not be terminated, she answered, "Because I need my daughter." He then asked if termination of her parental rights would be detrimental to the child. She answered, "I don't know what she will feel. It's hard to predict that. It's hard to see that happening." Her attorney pressed on, asking, "Do you think it will be detrimental for her if you are not her mother in the future?" She answered, "I don't know what to say to that."
In response to still further questions along this line, the mother finally said that termination would be "harmful" to the child "[b]ecause she needs a relationship. I need a relationship with her too." She added, "[S]he is going to wonder where her mommy is."
By the date of the section 366.26 hearing, the child had been with the F.'s for eight months. She had adjusted well and appeared to have a "secure attachment" to them. Their home was "perfect" for her, in light of her clingy behavior, as she would be the only child. She was happy about being adopted by them. She said she wanted to live with them "forever."
B. Additional Procedural Background.
At the section 366.26 hearing, counsel for the mother argued that the beneficial parental relationship exception applied.
The juvenile court found that the mother had not maintained regular visitation and contact. It further found that she did not "occupy a parental role" and that "the benefits of adoption outweigh the benefits of maintaining the parent-child relationship." In the course of its ruling, it remarked that it did not "take [the mother's] testimony for 100 percent truth
C. Discussion.
"'At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child.' [Citation.] The court may order one of three alternatives: adoption, legal guardianship, or long-term foster care. [Citations.]" (In re D.O. (2016) 247 Cal.App.4th 166, 173.)
"'Adoption, where possible, is the permanent plan preferred by the Legislature.' [Citation.]" (In re D.O., supra, 247 Cal.App.4th at p. 173.) Thus, as a general rule, at a section 366.26 hearing, if the trial court finds that the child is adoptable, it must select adoption as the permanent plan and terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).)
However, there are several exceptions to this rule. (§ 366.26, subds. (c)(1)(A)-(B), (c)(2).) One such exception applies if "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Id., subd. (c)(1)(B)(i).)
"'"[B]enefit from continuing the . . . relationship"' means the parent-child relationship '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.' [Citation.]" (In re Collin E. (2018) 25 Cal.App.5th 647, 663.)
"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent. [Citations.] Further, . . . the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
"A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence. [Citation.]" (In re J.C. (2014) 226 Cal.App.4th 503, 529.)
"'We apply the substantial evidence standard of review to the factual issue of 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.' [Citation.]" (In re E.T. (2018) 31 Cal.App.5th 68, 76.)
In applying the substantial evidence standard, because the parent has the burden of proving a beneficial relationship, "our review is limited to determining whether the evidence compels a finding in favor of the parent . . . as a matter of law. [Citation.]" (In re Breanna S. (2017) 8 Cal.App.5th 636, 647.)
Here, the juvenile court found that the mother had not maintained regular visitation and contact. That finding is amply supported by the evidence. According to visitation logs, out of the 15 visits scheduled in the preceding eight months, she had attended only two full visits. She had arrived late and/or left early at four visits; she had canceled, failed to confirm, or rescheduled nine visits.
"'Sporadic visitation is insufficient to satisfy the first prong of the parent-child relationship exception to adoption.' [Citation.]" (In re Anthony B. (2015) 239 Cal.App.4th 389, 396.) But this was worse than sporadic — it was neglectful. If the child enjoyed visitation at all, it raised her hopes, then dashed them randomly and unpredictably.
The mother argues that she did visit regularly, citing reports from 2017 and 2018. Those reports, however, were not before the trial court. Moreover, as she admits, even during that period, she did miss some visits. In any event, the fact that her most recent visitation, throughout 2019, was irregular supported the trial court's finding. (In re Anthony B. supra, 239 Cal.App.4th at p. 396 ["While Father's visitation with Anthony was consistent and positive during a previous period of time, during the five months preceding the section 366.26 trial Father's visitation was, at best, sporadic. This does not amount to the regular contact and visitation intended by the Legislature."].)
The mother also complains that it was difficult for her to get transportation from San Bernardino to the visits in Temecula. However, it could be done, albeit with difficulty. There is no "difficulty" exception to the first prong.
The juvenile court also found insufficient benefit from continuing the relationship. This finding, too, is amply supported by the evidence. At visits, the mother did not take the initiative in caring for the child. Instead of engaging with the child, she texted, had the child watch movies on her cell phone, and even fell asleep (apparently more than once). The child had said that she did not value the visits. The visitation supervisor concluded, based on her observations, that mother and child did not have an emotional bond.
The mother's attorney tried to get her to testify that she was using videos to teach the child sign language, but she denied this.
When the mother was asked whether termination of parental rights would be detrimental to the child, she waffled. Despite her attorney's leading questions, she answered twice that she did not know, before agreeing at last that it would be detrimental. Moreover, her conclusion that it would be detrimental was based on little more than the fact of the parent-child relationship.
The trial court had given the mother's counsel permission to lead, due to the mother's apparent difficulties in testifying through the interpreter. (See fn. 2, ante.) --------
The juvenile court, however, had to weigh the benefit from that relationship against the benefit of a permanent relationship with the prospective adoptive parents. The child had displayed clingy behavior with previous foster parents, suggesting that she was in desperate need of stability. In the social worker's opinion, her current home was "perfect" in this respect. By the time of the hearing, she had become attached to the F.'s. The child said herself that she wanted to be adopted by the F.'s and to live with them "forever."
We therefore conclude that the juvenile court properly refused to apply the beneficial parental relationship exception.
III
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.