Opinion
E073599
01-30-2020
In re A.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.P., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J276486 & J276487) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Mitchell L. Norton, Deputy County Counsel, for Plaintiff and Respondent.
E.P. (mother) appeals from the termination of her parental rights to two of her children, M.S. and A.S., arguing the juvenile court erred by failing to apply the parental bond exception to termination under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). We conclude the juvenile court did not abuse its discretion by declining to apply the exception because its findings are supported by substantial evidence. We therefore affirm.
All further statutory references are to the Welfare and Institutions Code.
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention.
On June 7, 2018, the San Bernardino County Children and Family Services (CFS) received a referral stating that A.S. (age 1) had been left in the care of a 12-year-old babysitter, for an extended period of time, with no diapers or food in the home. The babysitter said that father had returned, but then left again "to get diapers," and mother had "returned after the father," but "after a while left in the family vehicle." Law enforcement was unable to contact either parent, "and as of June 8, 2018 neither parent [had] made contact with CFS, law enforcement or the maternal grandparents." The social worker spoke with the maternal grandparents (the grandparents) who conveyed that father receives disability payments around the first of the month and then disappears for "a few days to weeks and returns with no money and no provisions for the children." The grandparents stated that mother has four other children—A.G. (age 11), K.G. (age 10), E.G. (age 9), and M.S. (age 3)—who were visiting with family at the time. The grandparents believed both parents use methamphetamine, and stated that mother and A.S. had tested positive for methamphetamine at the time of A.S.'s birth.
A.S. and M.S.'s father is not a party to this appeal and will only be referenced as needed.
On June 11, 2018, CFS filed dependency petitions under section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support) on behalf of A.S. and M.S. CFS alleged mother's substance abuse problem impaired her ability to care for the children, they were exposed to domestic violence between the parents, and the parents' whereabouts were unknown. On June 12, 2018, the juvenile court found prima facie evidence to remove the children from the parents' care and ordered supervised visitation.
Originally, petitions were filed as to all the children. However, A.G., K.G. and E.G. do not share the same father as M.S. and A.S. Since A.G., K.G. and E.G. were returned to their father's custody, only M.S. and A.S. are the subject of this appeal.
B. Jurisdiction and Disposition.
In the jurisdiction/disposition report filed June 28, 2018, CFS identified substance abuse, domestic violence, and the failure to provide adequate care, supervision and protection for the children as the reasons for intervention. Mother had not made herself available for an interview. Mother's older children reported that they had seen marijuana in mother's room, and they described domestic violence between mother and M.S. and A.S.'s father. The social worker left a message directing mother to drug test, but she did not appear until five days later. CFS submitted a police report, dated November 8, 2017, that indicated M.S. and A.S.'s father had been arrested and charged with committing a battery on mother. The jurisdiction/disposition report stated, "safety concerns and a detriment to the children" remain an issue if the children were returned to mother because she "exposed [them] to acts of violence and has neglected their basic needs."
At the jurisdiction/disposition hearing on July 3, 2018, the juvenile court sustained the allegations in the petition, declared the children dependents of the court, removed them from their parents' custody, and ordered reunification services and supervised weekly visitation.
C. Six-month Review Report and Hearing.
In the six-month status review report filed December 20, 2018, CFS recommended the juvenile court terminate reunification services and set a section 366.26 hearing. According to the social worker, mother had started services on or about July 28, 2018; however, by October 10, she had been terminated from an outpatient program "due to non-attendance." Since then, mother had sold her mobilehome, moved in with her brother, "had to leave her brother's home," and was now "homeless and not working." She continued to engage in a relationship with M.S. and A.S.'s father, even though it put her children at risk. Given mother's "long history with substance abuse and domestic violence affecting her children," the social worker opined, "It is not clear that even if [mother] continues her services and becomes sober that she would be able to provide adequate care for her children."
Mother exercised her right to visit M.S. and A.S. during September 2018, spending quality time with them and giving them baths. However, she stopped showing up and missed over three months of visits. According to the social worker, mother "was involved in her children's well-being in the beginning of her case and it appears that changed when [M.S. and A.S.'s father] was released from jail." CFS recommended mother's supervised visitation be reduced to once a month and if she arrived late, did not visit after one month, or failed to support M.S. and A.S. during her visits, that "the visits should be suspended to prevent continued disruption to the children." On or about December 13, 2018, mother was arrested for theft. On January 3, 2019, the juvenile court continued the six-month review hearing and set a contested hearing on termination of reunification services.
On January 29, 2019, CFS informed the juvenile court that mother had been terminated from an outpatient substance abuse program on November 5, 2018, and she had not contacted CFS requesting new services. The social worker was unsuccessful in her several attempts (including reaching out to the maternal family for assistance) to contact mother. CFS continued to recommend that the court terminate reunification services and set a section 366.26 hearing.
At the contested six-month review hearing on January 31, 2019, mother asked the juvenile court to continue her reunification services since she had reenrolled in her programs. In response, CFS noted that mother had only just reenrolled in a program, but "as recently as January 22nd [had] failed to [drug] test." Additionally, CFS pointed out that mother had not visited M.S. and A.S. The court made the following findings: (1) one of the children was under three years of age on the date of their initial removal, (2) both parents had failed to participate regularly and make substantive progress in their court ordered case plans, (3) returning the children to the parents would create a substantial risk of detriment to their safety or physical/emotional well-being, (4) reasonable services had been provided, (5) the parents' extent of progress as to those services had been minimal, and (6) there was not a substantial probability the children would be returned to the parents within the statutory time frames. The court terminated reunification services and set a section 366.26 hearing with a permanent plan of adoption.
D. Section 366.26 Hearing.
In the section 366.26 report filed May 21, 2019, CFS requested a continuance of the hearing in order to complete an adoption assessment on the grandparents. M.S. and A.S. were both living with the grandparents, who wanted to adopt them. CFS reported that on April 15, 2019, it had received a referral that claimed the grandparents were allowing the parents to spend the night and live with the children. The maternal grandmother denied the allegation, but the children stated the parents lived with them. According to the grandparents, mother had been actively participating in visitation and attending the children's medical and counseling appointments since February 2019. The juvenile court continued the section 366.26 hearing to August 29, 2019.
On August 8, 2019, mother filed a section 388 petition seeking to reinstate reunification services and to increase visitation. She stated she had "entered St. John of God Health Care Services on June 12, 2019," and had attended various programs, including Co-dependents Anonymous (CODA), relapse prevention, anger management, domestic violence and parenting classes, and an employment and living skills course. She added that when she had randomly drug tested, she "always tested clean." Mother claimed that she had visited M.S. and A.S. weekly after their removal, missed "a few visits," and that the "connection with us is very strong; they always ask for me to go home with them." She attached letters from her case manager (dated Aug. 8, 2019) and mental health therapist (dated Aug. 6, 2019), along with a meeting attendance sheet, which showed she had attended various meetings from June 30 through August 7, 2019. The juvenile court denied the section 388 petition, without a hearing, on the grounds mother failed to show new evidence or a change of circumstances, and the proposed change of order did not promote the best interest of the children.
In the section 366.26 addendum report filed August 19, 2019, the social worker reported that there was no evidence the parents had been living with the grandparents, and mother's monthly visits with M.S. and A.S. at her residential facility went without any incidents. CFS maintained its recommendation of termination of parental rights and adoption by the grandparents.
On August 29, 2019, at the section 366.26 hearing, mother objected to termination of her parental rights. She testified that M.S. and A.S. had lived with her until their removal in June 2018, she had visited them every month, she took them to see turtles in a pond, they hugged and kissed her, they did not want to leave at the end of the visits, and they wanted to know when she was coming home. She opined that termination of her parental rights would harm the children in "every way, their education, their health, everything." She requested the juvenile court select legal guardianship and not terminate parental rights pursuant to the parental bond exception. Rejecting mother's request, the court determined mother had "failed to show that there is a beneficial parental relationship that exists and that severing that relationship would result in great harm to the children." Finding adoption to be in the best interests of M.S. and A.S., the court terminated all parental rights and selected adoption as the permanent plan.
II. DISCUSSION
Mother argues the juvenile court erred by terminating her parental rights because the parental bond exception applied. We disagree.
When the court finds that "it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" unless at least one of several statutory exceptions applies. (§ 366.26, subd. (c)(1); see, e.g., In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) As relevant here, the parental bond exception provides that a court can forego terminating parental rights if it "finds a compelling reason for determining that termination would be detrimental to the child" because (1) "[t]he parent[] ha[s] maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) This exception "to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.'" (Celine R., at p. 53; accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1343.)
We review the juvenile court's findings on the existence of the beneficial parental relationship for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) 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; see In re J.S. (2017) 10 Cal.App.5th 1071, 1080 [applying hybrid standard to sibling bond exception].)
"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, others have reviewed it for substantial evidence, and still others have combined the two and taken a hybrid approach, as we do. (Ibid.) Our Supreme Court granted review of the issue and will therefore resolve "what standard governs appellate review of the [parental bond] exception to adoption." (In re Caden C. (S255839, July 24, 2019) 2019 Cal. Lexis 5373.)
The parent bears the burden of showing that the parental bond exception applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) "A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] 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 Breanna S. (2017) 8 Cal.App.5th 636, 646.) In determining whether the exception applies, "the 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
Here, the juvenile court determined the exception did not apply because mother "failed to show that there is a beneficial parental relationship that exists and that severing that relationship would result in great harm to the children." Substantial evidence supports that determination, and the court therefore did not abuse its discretion by refusing to apply the parental bond exception. The evidence shows that mother was initially consistent in visiting M.S. and A.S. until father was released from jail, and she was consistent in visiting as the section 366.26 hearing approached; however, mother never progressed beyond supervised visits with the children. Nonetheless, the evidence suggests that mother may have had contact with the children outside the knowledge of CFS since the children claimed that mother was living with them in the grandparents' house.
Even if mother had shown that she regularly visited M.S. and A.S. and was active in attending their medical and counseling appointments and in their caretaking, including bath time and bedtime, she has not demonstrated that her relationship with the children had reached the level at which the exception would apply. There is no evidence the children suffered greatly when they had to part from mother, or that they suffered greatly in her absence. Furthermore, the juvenile court could reasonably conclude that it was the grandparents who occupied the parental role in the children's lives. By the time of the section 366.26 hearing, the children had been out of mother's custody for almost 15 months, living with the grandparents, who had been tending to all of their daily needs. In contrast to the volatile life mother had subjected the children to, the grandparents provided a secure and stable home.
Mother primarily relies on two cases to support her argument for applying the parental benefit exception: In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) and In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). According to mother, although the mother in Amber M. was not successful in having her children returned to her care after participating in reunification services, "participation in these services still has benefit. It shows a commitment to the children and it shows the parent is making an effort to better themselves for the sake of their child. This will only increase the benefit the child would receive by continuing the relationship with a parent who continues to work on themselves as a person." Mother adds that the S.B. court "confirmed that day-to-day contact between parent and child was not required to trigger the applicability of the exception, but rather the nature and quality of the relationship between parent and child was the determinative factor in applying the exception." We are not persuaded by mother's argument.
Neither Amber M., nor S.B., stands for the proposition that a parent's effort to reunify, coupled with regular, pleasant, and affectionate visits, compels a finding that termination of parental rights would be detrimental to the child. Although both cases mentioned the parent's effort and devotion, they were not the foundation in either decision. Rather, in each case, there was uncontroverted third-party evidence, including expert opinion, of a significant emotional bond between the parent and the children and the potential for detrimental harm to the children upon severing that bond. (Amber M., supra, 103 Cal.App.4th at pp. 689-690; S.B., supra, 164 Cal.App.4th at pp. 295-296, 298.) Here, mother presented no such evidence.
Mother failed to demonstrate at the section 366.26 hearing that she occupied a true parental role with her children, which resulted in a significant, positive emotional attachment of them to her. She did not show that the juvenile court abused its discretion in rejecting the application of the parental benefit exception to his case. There simply is no evidence M.S. and A.S. would be "greatly harmed" by the termination of their natural parent-child relationship with mother. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) We therefore conclude the juvenile court properly found the parent-child relationship exception to adoption did not apply.
III. DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MENETREZ
J.