Opinion
E069446
04-25-2018
In re Z.J., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.W. et al., Defendants and Appellants.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.J. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant T.W. Michelle D. Blakemore, County Counsel, and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J249605) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant D.J. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant T.W. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants D.J. (mother) and T.W. (father) challenge the juvenile court's order terminating their parental rights with respect to their biological daughter, Z.J. (child). Mother contends that the juvenile court erred by failing to apply the beneficial parental relationship exception to termination of parental rights of Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). Father joins in mother's arguments.
Further undesignated statutory references are to the Welfare and Institutions Code.
We find no error, and affirm the juvenile court's judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
This is the second appeal arising from this dependency. In our opinion ruling on the previous appeal (In re Z.J. (May 25, 2016, E064590) [nonpub. opn.]) we described the factual background of the matter as follows:
"The child came to the attention of plaintiff and appellant San Bernardino County Children and Family Services (CFS) in May 2013, when she was one month old. She was admitted to the hospital for a clavicle injury; examination revealed multiple fractures, including healing fractures to her left clavicle and her 'left posterior 6th rib,' as well as older metaphyseal fractures of the distal end of both femurs. According to a forensic pediatrician who examined the child, the fractures appeared, at least in part, to have been inflicted nonaccidentally. Mother was the child's primary caretaker; though she lived with her father and two brothers, she reported that she did not leave the child in their care. The father of the child was not a member of the household and had no contact with the child.
"CFS took the child into protective custody on May 23, 2013, placing her with a family member. On May 28, 2013, CFS filed a section 300 petition, alleging serious physical harm (§ 300, subd. (a)), failure to protect (id. subd. (b)), severe physical abuse to a child under five (id. subd. (e)), and no provision for support by the alleged father (id., subd. (g))[fn. omitted]. On May 29, 2013, the trial court detained the child and removed her from her parents. Pursuant to section 361.5, subdivisions (b) or (e), the trial court found that 'no reunification services may apply' for mother. The court ordered mother to have visitation of once a week for two hours, supervised by CFS.
"In the jurisdiction/disposition report, filed June 14, 2013, CFS noted that mother initially stated that she believed the child's injuries were caused by the doctor at the time of delivery. She also gave several inconsistent statements to police, eventually admitting to one instance where she had been 'irritated,' and likely caused the injuries to the child's legs by using excessive force in trying to dress her.
"The report included information from the forensic pediatrician who examined the child, confirming that pulling on or dragging the child by her legs could have caused the femur injuries; the cause of the child's other injuries remained unknown. The doctor opined that a broken clavicle during delivery was 'plausible,' but the rib injury was not consistent with an injury occurring during delivery; a cracked rib was possible, but not a complete fracture, which is what the child had suffered.
"In the jurisdiction/disposition report, the social worker also observed that mother was affectionate with the child and attentive to her during the one visit that had then taken place since removal. The social worker was concerned, however, by mother's 'rough' handling of the child's legs while changing her, noting that mother 'seemed oblivious to how she was handling the child.' The social worker 'cautioned [mother] to be careful of the child's legs and she responded "she's fine."' When the social worker reminded mother that she was being observed because the child had been injured, and the child's legs were still sensitive and not casted, mother responded '"they didn't cast them because they were already healing."' The social worker 'explained that this fact does not negate [mother] from being cautious with the handling of the baby's legs.' At a hearing on June 19, 2013, the trial court authorized CFS not to allow mother to change the child's diapers during visits if she continued to handle the child in an inappropriately rough manner.
"At the contested jurisdictional/dispositional hearing on September 13, 2013, mother was present, but in custody; she was incarcerated on July 3, 2013, and would not be released until December 19, 2013[fn. omitted]. The trial court found that the child came within section 300, subdivisions (a), (b) and (e). The trial court ordered reunification services for the child's father, but denied them to mother, pursuant to section 361.5, subdivision (b)(5)[fn. omitted].
"In subsequent status reports, CFS informed the trial court that, after her release from incarceration, mother visited with the child consistently, on a weekly basis and under CFS supervision, as allowed under the trial court's visitation orders; CFS described no further incidents of rough handling of the child by mother. The child apparently had suffered no long-lasting effects from her injuries. Meanwhile, reunification efforts with the child's father were unsuccessful, for a variety of reasons irrelevant to the present appeal, leading to the termination of his services on January 29, 2015, and the setting of a section 366.26 permanency planning hearing for May 29, 2015.
"In a section 366.26 report, filed on May 27, 2015, CFS recommended that the section 366.26 hearing be continued. Since being removed from mother's custody, the child spent one month placed with a relative caretaker, then was placed in nonrelative foster care. Though the social worker viewed the child as adoptable, CFS had not identified an 'appropriate and approved adoptive family for placement.' The trial court accepted that recommendation, continuing the section 366.26 hearing to September 28, 2015.
"On August 18, 2015, mother filed her section 388 petition, requesting the child be placed in her care under a family maintenance plan, or in the alternative that she receive family reunification services. Mother had completed a 52-week child abuse prevention program and had participated in individual counseling. She stated that she has 'maintained a consistent presence in the child's life' and asserted that she and the child are 'bonded to one another.' Additionally, she claimed she 'has taken responsibility for her actions in this case, and has diligently attended services in order to become a better parent.' The trial court summarily denied the petition, finding the requested changes not to be in the child's best interest. The trial court further noted that the child 'was removed at a very young age and has never lived [with] mother since. Mother has not occupied a parental role.'
"At the continued section 366.26 hearing on September 28, 2015, CFS reported that it still had not found a permanent home for the child; a nonrelative family that had been a possibility had 'changed their mind last minute.' CFS asked for a further continuance to allow it to find the child an appropriate adoptive home, and requested the court reduce mother's visits from weekly to two times per month to help facilitate the process of the child 'attach[ing] to someone else.' The trial court granted CFS's requests, both with respect to a continuance, and curtailing mother's visitation." (In re Z.J., supra, E064590.)
Our previous opinion affirmed the trial court's rulings rejecting mother's section 388 petition and curtailing her visitation rights. (In re Z.J., supra, E064590.)
Subsequently, the child was moved through a series of foster home placements. Finally, in August 2016, she was moved to her current placement, her sixth since removal. She continued to receive extra services to address behavioral and attachment issues. But she adjusted well to living in her new placement, her behavior improved, and the foster parents wished to adopt her. In a section 366.26 report filed March 30, 2017, the social worker observed that the child called the prospective adoptive parents "mom" and "dad," and "appears to see them as her parental figures." The social worker further commented that the child "appears to go to [the prospective adoptive parents] easily and seeks them out for affirmation when she has done something well. She is eager to give them affection and join them in normal chores around the . . . home."
In the meantime, mother continued to visit with the child monthly, though she had to cancel several visits, and was late for several others. During one visit, the social worker observed that mother had the child practice saying mother's first and last names. In a subsequent visit, the child referred to mother by her first name; mother "quickly corrected" her.
CFS recommended that the trial court find that the child was likely to be adopted, and that it terminate mother's and father's parental rights. After several continuances, a contested section 366.26 hearing was held on October 27, 2017. Father waived his presence at the hearing; he was incarcerated out of state. Mother was present, and testified that the child "knows that the people that she stays with are not her real parents, and I'm her real parent." She testified that she tried to have a parent-child relationship with the child, among other things by reading to the child, and talking to her about school, and about "praying" and her religious beliefs. Mother claimed that the child frequently cried at the end of visits, and did not want to be separated from her. On cross-examination, mother acknowledged that the child had been removed from her custody when the child was one month old, in 2013, and that mother had never had unsupervised contact with her since then. When asked the question ". . . she's never resided with you?" mother responded: "Correct."
The juvenile court adopted CFS's recommendation, finding that the child was likely to be adopted, and ordering that mother's and father's parental rights be terminated. In doing so, the court explicitly found that mother and father had not established the beneficial parental relationship exception to termination of parental rights. It commented, in relevant part, that the child had been removed at a young age, had "never lived with mother," that mother "has always had supervised contact," and that mother "hasn't occupied a parental role in the minor's life." The juvenile court further commented that "it simply hasn't been shown to me that it would cause the minor significant harm to terminate parental rights, especially in light of or in contrast to the permanency of adoption and the security that that provides."
As noted above, the child was removed from mother's custody at one month old. The trial court misspoke while making its ruling, stating that she was removed at "a year old." --------
III. DISCUSSION
Mother contends the juvenile court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of parental rights. Father joins in mother's arguments. We find no error.
A. Legal Background.
After reunification services are denied or terminated, "'the focus shifts to the needs of the child for permanency and stability.'" (In re Celine R. (2003) 31 Cal.4th 45, 52.) "'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.'" (Id. at p. 53; see § 366.26, subd. (c)(1).) "'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.'" (Celine R., supra, at p. 53.) A statutory exception to the general rule requiring the court to choose adoption exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he 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).)
"'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] A beneficial relationship 'is one that "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 Marcelo B. (2012) 209 Cal.App.4th 635, 643.) The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some "'emotional bond'" with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) "To 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.) In other words, the parent must show he or she occupies a "'"parental role" in the child's life.'" (K.P., supra, at p. 621.)
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.) A juvenile court's finding that the beneficial parental relationship exception does not apply is reviewed in part under the substantial evidence standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial parental relationship exists, is reviewed for substantial evidence, while the court's determination that the relationship does not constitute a "compelling reason" (In re Celine R., supra, 31 Cal.4th at p. 53) for finding that termination of parental rights would be detrimental is reviewed for abuse of discretion. (Bailey J., supra, at pp. 1314-1315; In re K.P., supra, 203 Cal.App.4th at p. 621.) A juvenile court's ruling on whether there is a "compelling reason" is reviewed for abuse of discretion because the court must "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption." (Bailey J., supra, at p. 1315, italics omitted.) More specifically, a challenge to a court's failure to find a beneficial relationship amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed. (Bailey J., supra, at p. 1314.)
B. Analysis
The juvenile court's finding that mother and child did not share a parent-child bond sufficient to trigger the beneficial parent-child relationship exception is supported by substantial evidence. It is undisputed that the child was removed from mother's custody in 2013, when the child was one month old. Although mother's visitation with the child was fairly consistent, and generally positive in nature, she never progressed in reunification efforts sufficiently to obtain unsupervised visitation. Although mother testified that the child often cried at the end of visitation, and did not want to be separated from mother, that testimony was not corroborated by the social worker's report, and the trial court was entitled to disbelieve it. At most, the record requires the conclusion that mother had relatively "frequent and loving contact or pleasant visits" with the child, which has repeatedly been found insufficient to support application of the exception. (In re C.F. (2011) 193 Cal.App.4th 549, 557.)
Moreover, the juvenile court did not abuse its discretion by determining that any harm the child might suffer from the severing of her relationship with mother is outweighed by the benefits of adoption. The child has been shuffled between six placements in five years, since her removal from mother's care, and she has suffered from behavioral and attachment issues. She urgently requires permanence and stability. All indications are that her prospective adoptive parents are prepared to provide that permanence and stability. Even if the record could support a contrary conclusion—a questionable proposition, but one which mother urges on appeal—the juvenile court's finding was well within the bounds of reason, and therefore we will not disturb it.
Mother takes issue with the trial court's comment that the child "never lived with mother," pointing out that she and the child lived together with family members for the month in 2013 between the child's birth and her removal, and arguing that the trial court's "finding" lacks the support of substantial evidence. She also insists, however, that her own testimony that the child never "resided" with her can be "reconciled" with the undisputed facts, as meaning that "she never lived by herself with her daughter." She makes no reasoned argument why the trial court's similar comment, apparently reflecting mother's own testimony of only minutes earlier, should not be given the same interpretation. (See People v. Brown (2014) 59 Cal.4th 86, 106 ["'In reviewing a challenge to the sufficiency of the evidence . . . we "examine the whole record in the light most favorable to the judgment . . . ."'"].) The trial court was well aware that the child was removed from mother's care as a young child, not at birth. Mother has not demonstrated that the trial court's factual findings lack the support of substantial evidence, or that its exercise of discretion rested on an unsupported factual basis.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P.J. FIELDS
J.