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In re D.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 15, 2020
E073506 (Cal. Ct. App. Jan. 15, 2020)

Opinion

E073506

01-15-2020

In re D.M. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.M., Defendant and Appellant.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J270061 & J270062) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

Defendant and appellant R.M. (Mother) appeals the termination of her parental rights to L.M. (a boy; born Nov. 2012) and D.M. (a girl, born July 2014; collectively, the children) at a Welfare and Institutions Code section 366.26 hearing. Mother contends the juvenile court erred by (1) refusing to grant her section 388 petition; and (2) failing to apply the beneficial parent/child relationship exception of section 366.26, subdivision (c)(1)(B)(i).

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTUAL AND PROCEDURAL HISTORY

A. DETENTION

On March 17, 2017, San Bernardino County Children and Family Services (Department) filed a section 300 petition (petition) against Mother, who was 20 years old at the time of the filing of the petition and was born in Mexico. L.M. was four years old and D.M. was two years old. The children were detained in a foster home. It was alleged under section 300, subdivisions (b), and (g), failure to protect and no provision for support, that Mother left them without provision for care and support on or about March 15, 2017, when she was arrested for drug trafficking.

Mother named O.V. and A.L. as potential fathers of L.M. O.V. was deceased. She named E.N. as the father of D.M. All of the fathers lived in Mexico. A.L. did not respond to service through the Mexican Consulate. E.N. contacted the Department at the beginning of the case and indicated he wanted custody of D.M. but was not heard from again. --------

In support of the petition, the Department provided that it had received a referral that the children had been left without care because Mother had been arrested for transporting approximately 10 pounds of methamphetamine in her car while the children were with her. Mother explained she was following the car in front of her, which was to lead her to where she would drop off the drugs. Mother reported to the social worker that she was going to be paid $200 for transporting the methamphetamine. Mother insisted this was the first time she transported drugs. The children were free from any marks or bruises, and appeared healthy.

Mother reported that she had no Indian ancestry. A detention hearing was held on the petition on March 20, 2017. Mother was still in custody. The children were detained from Mother and visitation was ordered, upon her release, for two times each week for one hour.

B. JURISDICTION/DISPOSITION

The jurisdiction/disposition report was filed on April 6, 2017. It was recommended by the Department that the children remain out of Mother's custody and that Mother be granted reunification services. The children had been placed in the foster home of Mr. A. and Ms. P. As of April 3, 2017, Mother was still incarcerated and could not be contacted during the reporting period.

Maternal grandmother (MGM) was interviewed. She stated that Mother had lived with the children in the United States for six months. The children were born in the United States. Mother moved back and forth between Mexico and the United States.

L.M. was interviewed. L.M. advised the social worker that Mother kept drugs in their car. His father and MGM helped Mother with the drugs. He described "red drugs," which were kept in the bathroom at their house. His father kept drugs in a suitcase in Mexico.

The Department was concerned about reunification given that Mother was still incarcerated and there was concern she would continue to traffic drugs once she was released. Ms. P. reported that the children were adjusting well to the foster home. They were sleeping and eating. They did not cry for Mother. No visitation had occurred due to Mother's incarceration.

An addendum to the report was filed on April 7, 2017. Mother apparently had been released and was living with her aunt. She reported she lived in both Mexico and the United States. Mother claimed that she only transported the methamphetamine because someone threatened her and her children if she did not deliver the drugs. This conflicted with what she told the police at the time of her arrest, that she was being paid to transport the drugs. Mother had no contact with either father of L.M. or D.M. Mother was notified that she must submit to drug testing as part of her case plan.

The juvenile court held the jurisdiction/disposition hearing on May 9, 2017. Mother submitted on the allegations of the petition based on the reports from the Department. The juvenile court found the allegations true under section 300, subdivisions (b), and (g). Mother was granted six months of reunification services. Mother had relocated to Santa Clarita during the reporting period.

C. STATUS REVIEW REPORTS

The Department submitted a six-month status review report and recommended that the children stay in the placement with the current caregivers and that family reunification services continue. The Department reported that the potential for Mother to reunify with the children was "guarded." Mother struggled to complete her case plan. Mother had pending felony criminal charges and the result in the case was uncertain. Mother had moved to Riverside and lived with her aunt.

Mother had completed parenting classes. Mother was participating in individual therapy. She attended six sessions. As of September 25, 2017, Mother had stopped attending her sessions; the last time the therapist saw Mother was August 4, 2017. At that last therapy session, Mother complained about transportation and she was offered a bus pass but she refused it. It was recommended that therapy be terminated due to her absences.

As of November 9, 2017, Mother had failed to begin substance abuse classes. Mother had six no-shows for drug testing in April, May, June and July 2017. Mother had seven negative drug tests in the months of June through October 2017. The Department was concerned that Mother was immature and did not realize the seriousness of the situation. She relied on family members to transport her to services and visitation.

As for visitation, on April 6, 2017, Mother brought D.M. a dress and she played games with the children. Mother became emotional when D.M. asked if the police were going to take her away again. On April 18, 2017, Ms. P. supervised the visit. She reported that Mother was attentive, caring and loving towards the children. On April 27, 2017, the children seemed happy to see Mother. Mother brought them toys to play with. On May 4, 2017, Mother read to the children. When D.M. got accidently injured during visitation, Mother acted appropriately in comforting her. Mother attended five visits during May 2017; seven visits in June 2017; and six visits in July 2017. The children were happy to see Mother and hugged her. Mother played with the children, read stories and they talked throughout the visits. Mother cried during one of the visits. During another visit, D.M. had a tantrum and Mother appropriately gave her a time out and talked to her. During another visit, L.M. had a tantrum and tried to hit Mother. Mother put him in timeout; she sat with him during the timeout. Mother decorated the visiting room for D.M.'s birthday and brought her a birthday cake. Mother brought gifts for the children. Mother missed two visits in June 2017 due to lack of transportation. In July 2017, the children started to fight during visits over toys. Mother appropriately worked with them to share.

In August 2017, visitations were held one time each week for two hours. Ms. P. supervised a visit on August 8, 2017. She expressed concern that Mother did not discipline the children and let them do whatever they wanted. She also was concerned that Mother was applying makeup to D.M.'s face. L.M. told Mother she should not put make up on D.M. and Mother told him to be quiet. The next visit on August 15, 2017, went well and the children were happy to see Mother. Ms. P. complained that Mother had a hard time ending the visits on time.

A social worker supervised a visit on August 29, 2017. Mother was 15 minutes late. L.M. immediately acted out and was defiant with Mother. They begged Mother for candy and started crying when she told them she did not have candy for them. D.M. acted like an infant to get Mother's attention. Mother missed a visit in September 2017. During another visit, Mother called other relatives to speak with the children even though she was told not to use her phone during visits.

The children were developing normally. They had been with the current caregivers since March 16, 2017.

A status review hearing was conducted on November 9, 2017. The juvenile court noted that Mother had made "moderate" progress on her case plan. She was given six months additional reunification services. The juvenile court ordered that an outpatient substance abuse program be part of the case plan.

On April 16, 2018, the Department filed its 12-month status review report. The Department recommended that the children remain in the home of the current caregivers and that Mother be granted six additional months of reunification services. Mother had completed most of her case plan.

Mother had been participating in group therapy and had taken responsibility for her actions. Mother understood that her unhealthy relationships impacted her children. The Department was recommending that Mother and the children participate in therapy together. Mother had been referred to an outpatient substance abuse program. During the reporting period, Mother had one no show for testing; she had three positive drug tests for cocaine and "Benzos"; and she had six negative drug tests. Mother denied using any substances and did not know why she had positive drug tests.

Mother lived in Riverside with her boyfriend, who was paying their rent. Mother was unable to obtain work because of her felony conviction and she was undocumented. She was on formal probation until March 2021. She still needed to serve 90 days in custody as a term of her probation.

As for visitation, Ms. P. had been supervising the visits but had a conflict with Mother so they were changed to supervised by Department staff. Ms. P. had complained that Mother was always on her telephone.

Visits in February 2018 went well. Mother played with the children or did homework with L.M. MGM accompanied one visit and Mother's boyfriend arrived at a visitation to bring the children food. In March 2018, Mother was late to one visit and it was canceled. During another visit, Mother brought appropriate snacks and played with the children. The children were developing normally. They were bonded to Ms. P.

Mother was granted six additional months of reunification services on April 25, 2018. She was allowed supervised, four-hour visits, two times each week. On June 6, 2018, the juvenile court granted unsupervised visits to Mother based on her engaging the children at visits and also being appropriate in disciplining the children.

In the 18-month status review report, the Department recommended that Mother's reunification services be terminated and the matter be set for a section 366.26 hearing. L.M. was five years old and D.M. was four years old. Mother had been incarcerated for violating her probation on July 24, 2018; she was released on August 31, 2018. The children were in still in the home of the current caregivers.

Mother and the children attended therapy together. Based on a report from May 29, 2018, the children were able to share that they missed Mother. Mother was able to apologize to them for not making good choices. Mother had several no shows for drug testing during the reporting period but also had negative tests.

The Department was concerned about Mother's housing. She waited until July 17, 2018, to rent an apartment and was then arrested. Mother had no visits with the children since July 24, 2018. Mother lived with her boyfriend; who had not submitted to LiveScan. The Department was concerned about her boyfriend because he appeared to be under the influence when he transported Mother for visitation and services.

L.M. had expressed that he did not want to be around Mother's boyfriend. L.M. had noticed that the boyfriend's eyes were bloodshot and had asked the social worker what was wrong with him.

Mother consistently attended visitation between May 1, 2018, and July 17, 2018, being late to only one visit, which had to be cancelled. The children were always happy to see Mother. Mother played with the children and helped L.M. with homework. The children got bored during the four-hour visits and would watch a movie on Mother's phone. One visit was cut short due to L.M. asking to go home. The children complained to the social worker that the visits were too long.

On August 23, 2018, the children asked why they had not been able to see Mother. MGM told the children Mother was in trouble and had to fix things before they could see her again. The children did not want to live with Mother's boyfriend.

An update was provided on November 26, 2018. Mother had several no shows for drug testing. Although visitation was ordered for four hours, many times the children wanted to end the visits after just two hours. On November 13, 2018, Mother reported that she was trying to obtain an apartment with her boyfriend. Mother was working cleaning houses.

A contested hearing was conducted on December 4, 2018. Mother was present and testified. Mother insisted that she ended her relationship with her boyfriend. Mother admitted that she had no show drug tests because she failed to call in. She was willing to change anything to reunify with her children. Mother had violated her probation by missing a court date and not completing her work-release program. Mother's counsel argued that the children should be returned to Mother because she had completed her case plan. She was moving to a new residence. Minors' counsel and the Department recommended termination. The Department argued Mother was given 18 months to reunify with the children and she had failed to reunite with them. She was about to receive unsupervised visits with the children when she committed the probation violation.

Mother's reunification services were terminated. The juvenile court indicated Mother had 18 months to reunify and failed to comply with the court's orders. Mother had only just broken up with her boyfriend the prior week and did not have stable housing. The matter was set for a section 366.26 hearing.

D. SECTION 366.26 REPORT AND SECTION 388 PETITION

The Department filed its section 366.26 report on March 18, 2019, which was almost to the day, two years after the petition was filed. It recommended a permanent plan of adoption. The children were developing normally. L.M. was attending kindergarten. The children were bonded to the current caregivers, who wanted to adopt them. Ms. P. loved them as if they were her own. Mr. A. and Ms. P. sought to provide a stable and loving home for the children. L.M. oftentimes told Mr. A. that he loved him. Mother had regularly attended visitation during the reporting period and visits went well.

On April 10, 2019, Mother filed a section 388 petition requesting that the children be placed with her under a family maintenance plan, or in the alternative, that reunification services be reinstated. Mother submitted a declaration. She had completed her case plan. She had completed her parenting class and therapy prior to the termination of services. She completed an outpatient substance abuse program on March 25, 2019, and had negative drug tests since December 2018. She had been employed since October 2018, and obtained an apartment in San Bernardino on April 22, 2019. She indicated that she and her children had a special bond. The children were always happy to see her and they wanted to go home with her. She took responsibility for all of her mistakes.

The Department recommended that the juvenile court deny the section 388 petition. Mother had advised the Department on April 5, 2019, that she lived in Santa Clarita with her boyfriend, who was the same boyfriend with whom she claimed to have broken up. On May 22, 2019, Mother reported that she no longer lived with her boyfriend and was living in an apartment in San Bernardino. Mother continued to be unstable in her housing.

E. COMBINED SECTION 366.26 AND SECTION 388 HEARING

Mother's counsel argued in favor of a section 388 hearing; Mother had completed her case plan, had stable housing, and had been consistent in visitation. There was no reason to deny the section 388 petition. She had shown changed circumstances. The Department and children's counsel argued that it was not in the best interests of the children to conduct a section 388 hearing; the petition should be denied. The juvenile court granted the hearing to be held with the section 366.36 proceedings.

Mother testified at the combined hearing held on August 12, 2019. She recounted all of the classes and counseling she had completed.

Mother insisted she and her boyfriend had not been together for one year. Mother claimed she had not been rearrested on her felony case but had surrendered herself to serve the time she was required by the terms of her plea. She did acknowledge she was in violation of her probation at the time. She had over one year of probation to still serve. She was employed cleaning houses. She had been living in the same location for five months. The children always asked if they were going to go home with her during visitation; they stopped asking about three months prior when Mother claimed the current caregivers told them about the adoption. The children became more distant.

Mother claimed it was in the children's best interest to be with her because she was true family. The children were very close to MGM. She admitted that L.M. always asked for their visits to end early. She lived with her ex-boyfriend from January 2018 to November 2018. She admitted she had used cocaine during the dependency proceedings.

MGM testified the children always hugged and kissed her at visits but in the prior three months they had not asked if they could go home with her and Mother. L.M. had changed in the prior three months always asking to leave visits early. MGM observed Mother appropriately discipline the children and make them complete their homework.

Jaquitta Brown, the social worker who prepared the Department's response to the section 388 petition testified. The Department had recommended denying the section 388 petition based on interviews with the children. L.M. had no issues or complaints about the time he lived with Mother prior to the petition being filed. L.M. did not like Mother's boyfriend. L.M. said he was mean to him and D.M. L.M. did not believe Mother that she was not with her boyfriend. On May 28, 2019, Mother told Brown that she was living with her boyfriend. Brown had visited Mother's apartment and it appeared safe. She did not recommend unsupervised visits due to L.M.'s concerns about Mother's boyfriend. Brown was concerned that L.M. did not feel safe being with Mother and did not trust her. L.M. was attached to the current caregivers. D.M. was shy and did not respond to Brown's questions. D.M. had told another social worker that Mother talked to her about Ms. P. while they went to the bathroom together during visits. L.M. told Brown he wanted to be adopted by Mr. A. and Ms. P. He would be sad that he would not see Mother any longer but he still wanted to be adopted.

Teresa Siok, the social worker who prepared the section 366.26 hearing report testified. She spoke with the children. D.M. did not respond to questions. L.M. wanted to be adopted. L.M. considered Ms. P. and Mr. A. to be his parents. In January 2019, Mother made inappropriate comments to the children promising them she was going to get them back in her care. She also asked them if the foster parents were inappropriately touching them.

Mother's counsel argued it was clear Mother had shown changed circumstances. Mother had made mistakes but had completely changed since December 2018. There was no evidence Mother was still with her boyfriend. It was in the best interests of the children to return to Mother's care. The children's counsel and the Department both argued that it was not in the best interests of the children to grant the section 388 petition.

The juvenile court denied the section 388 petition. The juvenile court first noted that Mother was given 18 months of reunification services and was unable to reunite with the children. Mother had a probation violation during the dependency proceedings. She clearly neglected the children by transporting a large amount of methamphetamine while the children were in her car. The juvenile court did find a change in circumstances.

As to best interest, Mother had consistently visited with the children but their relationship had changed in the prior three months. The children were no longer bonded to her in a "parental role type of fashion." The children had a stable home for two and one-half years with the current caregivers. L.M. did not trust Mother and wanted to be adopted. Permanency in the adoptive home was in their best interests. Mother could have reunified in the first six months of the case, but had failed to do so. The juvenile court did not find Mother's testimony credible as to when she broke up with her boyfriend, or even if she had.

The juvenile court then addressed the parental bond exception to adoption. It noted it was Mother's burden to show the exception applied. The juvenile court found that Mother had engaged in regular visitation. However, Mother did not occupy a parental role. The children had been out of her care for two and one-half years and had spent that time with the current caregivers, which became the prospective adoptive home. The children wanted to end visits early and the relationship had changed in the prior three months. L.M. was fearful of returning to Mother's care, which was evidence that Mother no longer occupied a parental role. Mother had not met her burden of showing the exception applied.

The parental rights of Mother were terminated. The children were freed for adoption.

DISCUSSION

A. SECTION 388 PETITION

Mother claims the juvenile court erred by denying her section 388 petition. She insists that she showed changed circumstances and should have been given custody of the children with a family maintenance program, or in the alternative, given additional reunification services.

"Under section 388, a parent may petition to change or set aside a prior order 'upon grounds of change of circumstance or new evidence.' [Citations.] The juvenile court shall order a hearing where 'it appears that the best interests of the child . . . may be promoted' by the new order. [Citation.] Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157, fn. omitted.) "A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. . . . While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests." (Ibid.)

"[A]fter reunification services have terminated, a parent's petition for either an order returning custody or reopening reunification efforts must establish how such a change will advance the child's need for permanency and stability." (In re J.C. (2014) 226 Cal.App.4th 503, 527.) " 'A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.' " (Ibid.)

"We review such rulings for abuse of discretion and may not disturb the decision of the trial court unless that court has exceeded the limits of judicial discretion by making an arbitrary, capricious, or patently absurd determination." (In re E.S. (2011) 196 Cal.App.4th 1329, 1335; see also In re B.D. (2008) 159 Cal.App.4th 1218, 1228.)

Here, the juvenile court conducted an extensive evidentiary hearing. Mother testified that she had completely changed her life. She had completed her classes, finished an outpatient drug treatment program and had been consistent in her visitation with the children. She had obtained stable housing and consistent employment. The juvenile court rightfully concluded that she had shown changed circumstances under the first prong of a section 388 petition.

However, this was not enough to grant the section 388 petition; the juvenile court did not abuse its discretion by finding it was not in the children's best interests to be placed back with Mother or to grant additional reunification services. The reason the children were originally detained was due to Mother transporting an excessive amount of methamphetamine in her car while they were present. Mother was placed on probation and committed a probation violation during the dependency proceedings. Mother had one more year on probation, and the juvenile court correctly considered this probation violation in denying the section 388 petition. The probation violation had impacted the relationship between Mother and the children, and her continued probation had the potential to impact the stability and permanency of the children if they were placed back in Mother's care.

Further, the juvenile court did not abuse its discretion by concluding that Mother no longer occupied a parental role in the children's lives. While it is indisputable that Mother consistently visited with the children, she failed to complete her services in the first six months and could not complete her services within the extended 18 months. Due to the length of the reunification services, the relationship between Mother and the children started to change. In August 2018, due to Mother's actions in violating her probation, she did not visit with the children for over one month. They expressed concern when they could not see her.

After Mother was released on the probation violation, she had four hour visits with the children two times each week, but the children got bored and L.M. wanted to end the visits early. Even Mother and MGM admitted that the relationship between Mother and the children had changed in the three months prior to the section 388 hearing. The children became distant. Although Mother had been consistent in her visitation, she was only with the children at most eight hours each week and the children became more bonded to Ms. P. and Mr. A. Mother's actions in failing to reunify with the children during the time given by the juvenile court impacted her relationship with the children. The juvenile court properly considered that it was not in the best interests of the children to return them to Mother's care as there was no longer a strong bond between Mother and the children.

Additionally, the juvenile court reasonably concluded that Mother's relationship with her boyfriend may have an impact on the children. Mother was not consistent in her statements about when she and her boyfriend had broken up. Mother told the social worker they were living together in May 2019. However, at the hearing conducted in August 2019, she stated she had not been with her boyfriend for one year. L.M. expressed concern that Mother was lying and that she was still with the boyfriend, whom L.M. did not like. L.M. also reported that the boyfriend was mean to both him and D.M. The fact that Mother may still be involved with her boyfriend could impact the stability in the children's lives.

Based on the foregoing, the juvenile court did not abuse its discretion by denying Mother's section 388 petition as it was not in the best interests of the children.

B. PARENTAL BOND EXCEPTION

Mother claims she had significant bonds with the children and that the juvenile court erred by failing to apply the parental bond exception of section 366.26, subdivision (c)(1)(B)(i).

" 'The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time.' [Citation.] When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family.' " (In re Celine R. (2003) 31 Cal.4th 45, 52.) After reunification services are denied or terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (Ibid.) Adoption is preferred once reunification services have been terminated and, "adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds "by clear and convincing evidence" it is likely the child will be adopted. There are several statutory exceptions. Under section 366.26, subdivision (c)(1)(B)(i), one such exception exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." A beneficial relationship is established if it " '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 Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)

The parent has the burden of proving the statutory exception applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (Ibid; see also In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)

"[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) " 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)

"In reviewing challenges to a trial court's decision as to the applicability of these exceptions, we will employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) "The first determination—most commonly whether a beneficial parental or sibling relationship exists, although section 366.26 does contain other exceptions—is, because of its factual nature, properly reviewed for substantial evidence. [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes 'a compelling reason for determining that termination would be detrimental to the child.' " (In re K.P. (2012) 203 Cal.App.4th 614, 622.) Based on the foregoing, the issue of whether a beneficial relationship exists is reviewed for substantial evidence and the decision of whether that relationship constitutes a compelling reason for termination being detrimental to the child is reviewed for an abuse of discretion. (Ibid.)

As stated ante, at the time of the section 366.26 hearing, the children had been out of Mother's custody for two and one-half years. During the time they were out of her custody, Mother consistently visited with the children. She appropriately disciplined the children and worked with them on their homework. The Department concedes that there was regular visitation.

As discussed, despite the strong relationship at the beginning of the dependency proceedings, the bond between the children and Mother had started to lessen by the time of the section 366.26 hearing. The children had become distant and L.M. wanted to end their visits early. The evidence strongly supported that there was not a strong positive relationship between Mother and the children at the time of the section 366.26 hearing. The juvenile court properly concluded that Mother did not occupy a parental role.

Further, L.M. expressed that she preferred to stay with Ms. P. and Mr. A. Even though he was going to be sad not to see Mother, he wanted the permanency of living in the home he had known for over two years. D.M. had been out of Mother's custody for half of her life, and there was not substantial evidence of a strong parental bond between her and Mother.

Finally, Mother had engaged in activities during the dependency proceedings that showed she could not provide the stability that adoption offered the children. Mother had a boyfriend who was mean to the children and L.M. did not want to live with him. She had used drugs, failed to find a stable home until the time of the section 366.26 hearing, and had violated her probation. There simply was no compelling reason in this case for determining that termination of Mother's parental rights would be detrimental to the children. (In re K.P., supra, 203 Cal.App.4th at p. 622.) As such, the juvenile court did not abuse its discretion by concluding that the parental bond exception did not apply.

DISPOSITION

The juvenile court's order terminating Mother's parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J. We concur: SLOUGH

J. FIELDS

J.


Summaries of

In re D.M.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 15, 2020
E073506 (Cal. Ct. App. Jan. 15, 2020)
Case details for

In re D.M.

Case Details

Full title:In re D.M. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 15, 2020

Citations

E073506 (Cal. Ct. App. Jan. 15, 2020)