Opinion
E079935
06-29-2023
In re R.R. et al., Persons Coming Under the Juvenile Court Law. v. L.R., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
The Haynes Law Firm and Crista M. Haynes, for Defendant and Appellant. Tom Bunton, County Counsel, Kristina M. Robb, and Jessica Morgan, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Nos. J284889 & J284890, Erin K. Alexander, Judge. Affirmed.
The Haynes Law Firm and Crista M. Haynes, for Defendant and Appellant.
Tom Bunton, County Counsel, Kristina M. Robb, and Jessica Morgan, Deputy County Counsel for Plaintiff and Respondent.
OPINION
RAPHAEL J.
Defendant and appellant L.R. (mother) raises two issues following the termination of her parental rights over her two minor children. First, she contends that the juvenile court erred in finding the allegation in a supplemental petition true. Second, she contends that, despite the juvenile court's finding to the contrary, the beneficial parental relationship exception applies. We do not consider the first issue because it was not timely raised. We agree with the juvenile court as to the second issue. Accordingly, we affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
In April 2020, plaintiff and respondent San Bernardino County Children and Family Services (CFS) filed a dependency petition (§ 300) for two of mother's children: E.R. (born 2014) and R.R. (born 2019). In part, the petition alleged that their father physically abused E.R. and that both children were at risk for further abuse due to mother's failure to protect.
A petition was filed for a half-sibling as well, but because that child is not a subject of this appeal, our factual background focuses on only E.R. and R.R., discussing the half-sibling as necessary for context.
Before the court ruled on jurisdiction, two amended petitions were filed, one in June 2020 and the other in September 2020. The September 2020 petition in particular alleged that father repeatedly sexually abused E.R. and R.R.'s half-sibling. Father was arrested and charged with lewd and lascivious conduct with a child under 14 and annoying or molesting a child under 18. At the combined jurisdiction and disposition hearing on the petitions, the juvenile court found various allegations true, removed the children from the parents' custody, ordered family reunification services for mother, and denied services for the father. At the six month review hearing in July 2021, the juvenile court returned E.R. and R.R. to mother's custody but cautioned mother not to allow any unauthorized contact between father and the children, noting that failing to do so "could lead to a new removal."
Mother did not heed the warning. Four months after the children returned to mother, CFS filed a supplemental petition (§ 387). In the detention report, CFS stated that mother had informed them "she would not continue her relationship with the father and would be filing for divorce immediately" and that "[t]hroughout the entirety of the case, the mother has denied any communication with the father or any contact between the children and the father." CFS discovered, however, that mother had been "lying to the department and has continued her relationship with the father" and that "mother has had frequent communication with the father while incarcerated." Additionally, "mother made statements indicating she does not believe the true findings of sexual abuse and physical abuse by father," and mother instructed E.R. "not to say anything." CFS contended mother's conduct showed "a clear lack of protective capacity" and placed E.R. and R.R. at substantial risk of abuse and neglect. In February 2022, following a contested jurisdictional and dispositional hearing on the supplemental petition, the juvenile court found that the previous disposition was not effective in protecting the children, ordered the children removed from mother, and, because mother was at that point "well beyond the statutory time frames," the court set a section 366.26 hearing.
Prior to the section 366.26 hearing, CFS recommended that both parents' parental rights be terminated with a permanent plan of adoption. Its report stated that E.R. and R.R. "have developed a strong attachment and bond with their foster parents and look to them as their parental figure[s]," even though "mother has continued to visit the children" and her visits were characterized as "appropriate."
The father is not a party to this appeal.
At the section 366.26 hearing in September 2022, mother contended that the permanent plan of adoption for E.R. and R.R. would be detrimental to them, noting "statements by the children where [E.R.] has asked when he was able to come home." Mother also noted that she had "consistently been seeing the children up to eight hours every week." The juvenile court nevertheless found that the beneficial parental relationship exception did not apply, stating: "I am going to find that over the life of the case she's had consistent visits but I don't find that the relationship is a substantial positive emotional attachment, the type that would - the children would continue to benefit from having." It continued: "[T]he children have been placed in the [foster] home, since November of 2020, so going on two years. Although [mother] maintains her visitation the children are described to have a strong attachment and bond with the foster parents and it's indicated that they look to them as their parental figures that the current [foster parents] love and care for the children and have demonstrated an ability to care for them long-term and wish to adopt them to provide permanency. [¶] Again, I'll note that [E.R.] is older but there's no indication of any detriment after visits. There's no indication in the report or evidence before the Court that the children are opposed to adoption in any way, looks like they're secure in their current placement and there's no evidence of detriment to the children. I have no doubt that it's detrimental to [mother] to lose parental rights but there's no evidence of detriment to the children. And I'll note even if there's some detriment, that would be far outweighed by the 16-plus years of permanency for [R.R.] and the 12-plus years for [E.R.]." It then found that the children are likely to be adopted, concluded there was no substantial evidence for the exception to apply, and terminated both parents' parental rights to E.R. and R.R.
II. DISCUSSION
Mother challenges the termination of her parental rights to E.R. and R.R. on two grounds-first, that the jurisdictional finding on the November 2021 section 387 supplemental petition lacked substantial evidence, and second, that the juvenile court should have found that the beneficial parental relationship exception applies. We reject the jurisdictional claim as untimely and agree with the juvenile court that the beneficial parental relationship exception did not apply.
A. Supplemental Petition Jurisdictional Finding
"A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." (§ 395, subd. (a)(1).) "The dispositional order is the 'judgment'. . . and all subsequent orders are appealable." (In re S.B. (2009) 46 Cal.4th 529, 532.)
The same is true for supplemental petitions under section 387: although the jurisdictional findings on a supplemental petition are nonappealable, the dispositional order on a supplemental petition is appealable as a judgment, and the jurisdictional issue may be raised on an appeal from the dispositional order. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1201; In re Christopher B. (1996) 43 Cal.App.4th 551, 556, fn. 2.)
An appeal from a juvenile court order generally must be filed within 60 days of the order. (Cal. Rules of Court, rule 8.406(a).) "This is a jurisdictional deadline, meaning that courts lack the power to extend it, regardless of whether failure to meet the deadline was 'wilful [sic] or inadvertent,' 'reasonable or unreasonable,' or rooted in 'good faith or not.'" (In re A.R. (2021) 11 Cal.5th 234, 246.)
Thus, to challenge the supplemental petition's jurisdictional findings, mother had to appeal from the dispositional order on that petition, which the juvenile court issued in February 2022. Such an appeal could be filed no later than April 2022. (Cal. Rules of Court, rule 8.406(a).) Mother did not meet that deadline, so the dispositional order and jurisdictional findings on the supplemental petition are now final and may not be challenged. (See In re S.B., supra, 46 Cal.4th at p. 532 ["'"A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order"'"].) We therefore reject mother's jurisdictional claim as untimely.
Additionally, mother's notice of appeal makes no reference to the November 2021 supplemental petition, only the September 2022 order terminating parental rights.
B. Beneficial Parental Relationship Exception
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care." (Id. at p. 53.) "Whenever 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.'" (Ibid.)
To avoid termination of parental rights, a parent must prove one or more statutory exceptions apply. (In re Caden C. (2021) 11 Cal.5th 614, 631.) "One of the exceptions, the beneficial parental relationship exception, applies when (1) 'the parent has regularly visited with the child'; (2) 'the child would benefit from continuing the relationship'; and (3) 'terminating the relationship would be detrimental to the child.'" (In re M.V. (2023) 87 Cal.App.5th 1155, 1183.)
"The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (In re Caden C., supra, 11 Cal.5th at p. 632.)
Second, "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." (In re Caden C., supra, 11 Cal.5th at p. 636.) "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.)
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption." (In re Caden C., supra, 11 Cal.5th at p. 633.) "When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent." (Id. at pp. 633-634.)
"We review the court's findings using a hybrid approach: for the first two elements, which require factual findings (parental visitation and the child's emotional attachment), we apply the substantial evidence standard of review." (In re M.V., supra, 87 Cal.App.5th at p. 1184.) But where the juvenile court found the parent failed to carry his or her burden of proof, the question is more properly stated not in terms of substantial evidence, but rather "whether the [appellant parent's] evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on another ground by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) We apply the abuse of discretion standard to the juvenile court's "weighing of the relative harms and benefits of terminating parental rights" for the third element (In re M.V., supra, 87 Cal.App.5th at p. 1184), but the substantial evidence standard applies for any factual determinations made here as well. (In re Caden C., supra, 11 Cal.5th at p. 640.) "[T]he ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his [or her] parent-is discretionary and properly reviewed for abuse of discretion." (Ibid.) We will not reverse the juvenile court's order as an abuse of discretion unless the court made an arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Here, the record reveals no abuse of discretion. In finding that there was no substantial evidence that E.R. and R.R. have a substantial, positive, emotional attachment to mother or that terminating mother's parental rights would be detrimental to them, the juvenile court noted that they have been in the adoptive parents' care for nearly two years. Because R.R. was only three years old at the time, she spent a majority of her life living in someone other than mother's care. Indeed, at that age, even a year is a substantial portion of the children's lives. Additionally, the court found "no evidence of detriment to the children" because they are "secure in their current placement" and "[t]here's no indication in the [section 366.26] report or evidence before the Court that the children are opposed to adoption in any way."
The record is unclear as to exactly how long E.R. and R.R. had resided in the prospective adoptive parents' home. CFS's section 366.26 report states that they have been placed there only since November of 2021, not November of 2020 as the juvenile court stated. Other parts of the record, however, suggest that E.R. and R.R. also resided in the same home from their initial detention in April 2020 to their return to mother in July 2021. If that is the case, then by the section 366.26 hearing in September 2022, E.R. and R.R. would have spent a total of approximately 25 months, or a little more than two years, living with the prospective adoptive parents, albeit interrupted by some time in mother's care.
Mother has not shown uncontradicted evidence was "'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding'" in her favor. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) In fact, mother did not put forth much evidence at all. Mother did not submit any of her own evidence before the hearing but instead simply argued that E.R. "has asked when he was able to come home" and that she had "consistently been seeing the children up to eight hours every week on Saturdays." (See § 366.26, subd. (b) [court "shall receive other evidence that the parties may present" at the hearing].) She did not cite any evidence in the record that shows E.R. made any such statements. Similarly, on appeal, none of mother's factual claims are backed by any citations to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) Mother has asserted that she "ha[s] cooperated with court-ordered services," that the children "enjoy spending time with" her, and that she "takes full responsibility for her actions of not being truthful with the social worker." Even taking these assertions to be true, however, reversal would not be warranted, as they do not compel the conclusion that the children would suffer detriment if mother's parental rights were terminated. The cases she relies on in contending otherwise are distinguishable in that those cases cited to significantly more evidence than mother has put forth here. (See, e.g., In re E.T. (2018) 31 Cal.App.5th 68, 76-77; In re S.B. (2008) 164 Cal.App.4th 289, 298; In re Amber M. (2002) 103 Cal.App.4th 681, 689-690.)
Accordingly, we find no abuse of discretion in the juvenile court's decision to not apply the beneficial parental relationship exception.
III. DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., CODRINGTON, J.