Opinion
E068132
09-01-2017
In re M.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. Mi.G., Defendant and Appellant.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J262062) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
M.G. was removed from her mother but placed with her father shortly after she was born with a positive toxicology screen for drugs. Approximately three months after placement with her father and his wife, a supplemental petition (Welf. & Inst. Code, § 387) was filed and the minor was removed from father's custody due to his mental health problems and failure to cooperate with San Bernardino County's Children and Family Services (CFS), respecting the family maintenance plan. Father was given reunification services but those services were terminated at the six-month status review hearing, and father's parental rights were subsequently terminated. Father appealed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
On appeal, father contends that the juvenile court erred in finding that termination of parental rights would not be detrimental to the child based on the absence of a beneficial parent-child relationship, within the meaning of section 366.26, subdivision (c)(1)(B(i). We affirm.
BACKGROUND
In September 2015, M.G. was born, testing positive for methamphetamine, as did her mother. Mother was not married to father, and had two other children who had been placed with other relatives by CFS, after being removed from her custody due to her substance abuse. Father, Mi.G., was married, had three children living with him and his wife, and several other children (for a total of 10, including M.G.), but he had never been involved with CFS, although he had a mental health diagnosis of paranoid schizophrenia, for which he took medication.
A dependency petition was filed on September 15, 2015, alleging that M.G. was a person described by section 300, subdivision (b), based on mother's substance abuse, criminal history and domestic violence history, as well as father's alleged criminal and substance abuse history. It was further alleged that mother had failed to reunify with the minor's half-siblings, I.H., A.H., and K.M., and had not adequately addressed and mitigated the concerns leading to the removal of the half-siblings. At the detention hearing, M.G. was removed from mother's custody upon a prima facie finding that the child would come within the provisions of section 300. The court ordered that the child remain in the custody of father on the condition that mother not reside in the home or have unsupervised contact with the child.
On October 6, 2015, an amended petition was filed adding a nearly identical allegation of father's substance abuse, although the jurisdiction report recounts the allegations of the amended petition as including an allegation that father has a mental health condition of paranoid schizophrenia which could possibly negatively impact his ability to care for the child. The jurisdiction report indicated father had a criminal history involving gang membership and the sale of "crack" as well as methamphetamines, but he had no criminal involvement since 2014. He had a medical marijuana card for his marijuana use, and had been diagnosed with paranoid schizophrenia two years earlier, for which he was receiving treatment.
On October 14, 2015, County Counsel requested that the juvenile court take judicial notice of the dependency files of the minor's half-siblings, showing that reunification services had been terminated following findings that the parents had failed to regularly participate in services. On October 29, 2015, at the jurisdiction hearing, the court made true findings as to all allegations, declared the child a dependent, removed custody of the child from mother and denied reunification services for her pursuant to section 361.5, subdivision (b)(1). The court maintained custody of the child with father under a family maintenance plan.
Less than three months after the disposition, on December 16, 2015, CFS filed a supplemental petition pursuant to section 387, alleging that the previous disposition had been ineffective in protecting the child due to father's ongoing mental health problems, coupled with his failure to comply with the case plan. The detention report indicated that father had failed to drug test as ordered in September 2015, and had tested positive for marijuana and benzodiazepines the following month.
Additionally, at each of the two monthly contacts by the social worker, father was agitated and yelled in a defensive manner when the social worker inquired about his compliance with his mental health treatment and services. At the detention hearing, the court made a prima facie finding that the previous disposition had been ineffective, removed the child from father, and directed the social worker to assess father's wife as a possible non-relative extended family member (NREFM) placement.
In preparation for the jurisdiction hearing on the supplemental petition, the social worker attempted to interview father's wife, but father would not let the social worker speak to his wife alone. Nevertheless, the social worker learned that father's wife had no desire to take the place of the mother and demonstrated she was not committed to the same level of protectiveness for M.G. as she had for the other children in the home. Mediation was ordered, and the father agreed that, in return for reunification services, he would submit on the supplemental petition as amended to read that due to his ongoing mental health condition and inconsistent compliance with the case plan and to cooperate with CFS, the minor was placed at risk. At the hearing, the court followed the recommendations of the mediation report, found that the minor came within the provisions of section 387, removed custody from father, approved the reunification plan, and ordered father to participate in services.
Prior to the six-month status review hearing (§ 366.21, subd. (e)) conducted in September 2016, CFS recommended termination of reunification services due to father's lack of cooperation with CFS and failure to follow through with his mental health treatment. Although father did finish parenting classes, he missed 7 out of 11 scheduled drug tests and he did not keep appointments with his psychiatrist. Father had been granted visits two times per week, with the potential for liberalized visits, but visits had never been increased or liberalized due to father's missed drug tests and mental health appointments. One recent visit had to be terminated early due to father's noncompliance with policies and his minimal engagement with the child. Thus, after hearing testimony and considering evidence presented at the hearing, the juvenile court terminated services and scheduled a hearing pursuant to section 366.26.
The report prepared for the section 366.26 hearing recommended termination of parental rights. Mother's whereabouts were unknown and she had not had any contact with the minor, although she had contacted the social worker in October 2016 to inquire about reunification services. Father had visited with the child with mixed results: six visits were completed with no issues noted, a few were missed due to court hearings or a job interview, one visit was canceled due to father's illness, and another visit was negatively impacted by the father arguing with his wife during the visit.
On March 15, 2017, the court conducted the selection and implementation hearing pursuant to section 366.26. At the hearing, the social worker testified that father visited twice per week for two hours each, and that the majority of the visits between father and child were appropriate. However, of the 14 visits that occurred at the visitation center, father either did not show up or was distracted and inappropriate for seven of them. The social worker stated that the visitation coach indicated there appeared to be a bond between father and the child, although the child was nonverbal. The child exhibited no signs of distress after the visits ended.
Father also testified at the hearing, informing the court that at visits, he parented the child, playing, reading, singing songs, talking, changing diapers, feeding her, and putting her to sleep. During those visits, the child came to him for comfort and called him "daddy." At the beginning of visits, the child would run towards him, and at the end of visits, sometimes she cried, while other times she did not, depending on her mood. Father requested that the court consider a less permanent plan than terminating parental rights, and that the court order continuing visits.
At the conclusion of the hearing, the court indicated it had no doubt father loved his daughter and desired to parent her, but that the bond between them was not so great that it would be detrimental to the child to the point where it outweighed the permanency of adoption. The court concluded adoption was the appropriate permanent plan, found the child was adoptable, and terminated parental rights. Father appealed.
DISCUSSION
The sole issue presented on this appeal is whether the juvenile court erred in finding that the beneficial parent-child relationship exception to adoptability did not apply. Father argues that he has a parental relationship with his child that was continued and developed by regular visitation. We disagree.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on the [adoption] assessment and any other relevant evidence, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption, unless one of several statutory exceptions applies. Once the court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). (In re Zachary G. (1999) 77 Cal.App.4th 799, 809, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) We must affirm a trial court's rejection of the exceptions if the ruling is supported by substantial evidence. (In re Zachary G., supra, at p. 809.)
One such exception applies when the court finds a compelling reason for determining that termination would be detrimental to the child because the parents have maintained regular visitation and contact with the child, and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) This exception applies only when the relationship with a natural parent 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A parent's "frequent and loving contact" with the child is not enough to sustain a finding that the exception would apply, when the parents have "not occupied a parental role in relation to them at any time during their lives." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The determination of whether a beneficial parent-child relationship exists is reviewed for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
To establish that the parents have occupied a "parental role," it is not necessary for a parent to show day-to-day contact and interaction, or a "primary attachment" to the parent. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re Casey D. (1999) 70 Cal.App.4th 38, 51.) As the court observed in In re S.B, if that were the standard, the rule would swallow the exception. (In re S.B., supra, at p. 299.) Instead, the court determines whether the parent has maintained a parental relationship, or an emotionally significant relationship, with the child, through consistent contact and visitation. (In re S.B., supra, at pp. 298, 300-301.)
Thus,"[t]o overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466, citing In re Lorenzo C. (1997) 54 Cal.App.4th 1332, 1342.) "The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B., supra, at p. 467, fn. omitted; see also, In re Bailey J., supra, 189 Cal.App.4th at p. 1315.)
In making its determination, "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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) "'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 Brandon C. (1999) 71 Cal.App.4th 1530, 1534, citing Autumn H., supra, 27 Cal.App.4th at p. 575.)
In this case, while father testified about his parenting activities during visits, and that the child referred to him as "daddy," his testimony did not establish a compelling reason to determine that termination would be detrimental to the child. First, it appears that father missed many visits held at the visitation center or acted inappropriately, affecting the first prong of the court's determination. As to the second prong, the testimony revealed father's feelings for his child, but did not reflect much about her bond with him, or the effect that termination of the relationship would have on her. The only evidence of a parent-child bond was described by the visitation coach, and even that evidence did not demonstrate that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (In re Angel B., supra, 97 Cal.App.4th at p. 466, italics added.)
In his reply brief, father emphasizes that he acted in a parental role during visits, citing In re Grace P. (2017) 8 Cal.App.5th 605, 613. There the court in Grace P. noted that the second prong involves a more qualitative and nuanced analysis that cannot be assessed by merely looking at whether an event, such as visitation, occurred. We agree with the statement, but the nuances here do not favor father where, by history, he only had custody of the child for three months before removal was necessary, he behaved inappropriately at some visits, missing many visits at the visitation center, and he failed to cooperate with his mental health treatment. In determining whether there is a substantial, positive emotional attachment such that a child would be greatly harmed, the trial court cannot ignore evidence showing that termination of parental rights is necessary for the stability and protection of the child.
Thus, even though we accept as true father's testimony that the child was happy to see him and that sometimes she was sad at the end of a visit, such evidence does not establish that severance of the parental relationship would be detrimental to her. The juvenile court did not err in finding that the beneficial parent-child relationship exception had not been established.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.