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San Diego Cnty. Health & Human Servs. Agency v. M.A. (In re B.G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2020
No. D076429 (Cal. Ct. App. Jan. 23, 2020)

Opinion

D076429

01-23-2020

In re B.G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.A., Defendant and Appellant.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and J. Jeffrey Bitticks, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ13360B) APPEAL from a judgment of the Superior Court of San Diego County, Bonnie M. Dumanis, Judge. Affirmed. Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and J. Jeffrey Bitticks, Deputy County Counsel, for Plaintiff and Respondent.

M.A. (Mother) appeals a judgment terminating her parental rights to her minor child, B.G., and selecting adoption as his permanent plan. On appeal, she contends the juvenile court erred by finding the beneficial parent-child relationship exception did not apply to preclude a permanent plan of adoption for B.G. and termination of her parental rights. Based on our reasoning below, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2017, B.G. was born. In November, the San Diego County Health and Human Services Agency (Agency) filed a Welfare and Institutions Code section 300, subdivision (b) petition on behalf of B.G., alleging that he was exposed to domestic violence between Mother and E.A., B.G.'s father (Father), in violation of a criminal protective order. During the incident, Father threatened to break Mother's nose, causing her to fear for her life and flee his vehicle, and Father absconded with B.G. and his brother, E.A.J., who was then almost two years old.

All statutory references are to the Welfare and Institutions Code.

In its detention report, Agency stated that Mother and Father had a three-year history of domestic violence, which had resulted in the removal of E.A.J. from their care in March 2017. At the detention hearing, the court found Agency had made a prima facie showing on the petition and ordered B.G. detained.

At the January 2018 jurisdiction and disposition hearing, the court found the petition's allegations to be true, declared B.G. a dependent of the court, and ordered that he be placed in the home of a relative and that Mother receive reunification services. The court subsequently ordered that Father also receive reunification services.

At the six-month review hearing in August, Agency reported that Mother's and Father's participation in reunification services were inconsistent. Mother's visits with B.G. were consistent and appropriate. During this period, Mother apparently had moved from Long Beach to San Ysidro, then to downtown San Diego, and finally to Rosarito, Mexico. A relative reported that Mother and Father had continued their relationship throughout the review period. The court ordered that Mother continue to receive reunification services, but terminated services for Father.

At the 12-month review hearing in March 2019, Agency reported that B.G. was doing well in his relative placement. E.A.J. was also placed with that relative. Although Mother had completed a domestic violence program, she had not completed her parenting classes. A relative reported that Mother and Father had continued their relationship. Agency recommended that the court terminate Mother's and Father's reunification services and set a section 366.26 permanency hearing for B.G. B.G.'s counsel agreed with Agency's recommendations. The court ordered that reunification services for Mother and Father be terminated and it set a section 366.26 selection and implementation hearing for B.G.

In its section 366.26 report, Agency stated that Mother regularly had supervised visits with B.G. twice a week. During those visits, Mother demonstrated a parental role and knowledge of B.G.'s development and responded appropriately to him. During visits, B.G. referred to Mother as "mama" or "ma." B.G. was excited to see Mother during their visits, but he did not appear to be distressed when the visits ended. After his visits with Mother, B.G. would enter his caregivers' home looking for "mom" and "dad." An Agency social worker had observed B.G. and E.A.J. looking for each other when one was not around. Mother had given birth to a third son in March 2019 and he remained in her care. Agency opined that B.G. was generally and specifically adoptable. His caregivers were willing to adopt B.G. and E.A.J.

Agency recommended that the court terminate the parents' reunification services and select a permanent plan of adoption for B.G. Agency opined that Mother's relationship with B.G. did not rise to the level of a parent-child relationship. Although Mother had appropriate visits with B.G., he had not been in her care for 18 months and relied on his caregivers to meet his physical and emotional needs. On separation from Mother after visits, B.G. did not become distressed. In contrast, on separation from his caregivers, B.G. became distressed as shown by his crying, screaming, and kicking. Although Mother had shown an ability to meet B.G.'s needs during visits, that was not an indication that a parent-child relationship existed. Because no parent-child relationship existed between Mother and B.G., Agency believed it would not be detrimental to him to terminate Mother's parental rights.

In an addendum report, Agency continued to recommend that the court select a permanent plan of adoption for B.G. Agency opined that B.G. did not have a significant parent-child relationship with Mother that would outweigh the benefits to him of adoption by his caregivers. Mother had completed her parenting classes and stated she had recently attended six domestic violence support group meetings.

In August 2019, Mother filed a section 388 petition for an order modifying the March 2019 order that terminated her reunification services and set the section 366.26 hearing. She alleged that since the March 2019 hearing she had completed her parenting classes, was no longer in a relationship with Father, and had learned the necessary tools to address and prevent domestic violence. She requested that B.G. be placed with her or, alternatively, that her services be reinstated and that B.G. be transitioned into her care.

At a hearing on August 28 and 29, 2019, the court found Mother had made a prima facie showing of changed circumstances in support of her section 388 petition and then conducted an evidentiary hearing on both the section 388 petition and the selection and implementation of a permanent plan for B.G. under section 366.26. Mother testified that she had not seen Father since November 2017 and that he was not the father of her third son. Rosa Pamatz, an Agency social worker, testified that in her opinion Mother and B.G. did not share a parent-child bond. Mother's relationship with B.G. was more like that of a relative who was involved in the child's life. B.G. did not exhibit any separation anxiety at the end of his visits with Mother. B.G. shared a sibling bond with his older brother, E.A.J., with whom he lived in their caregivers' home. B.G. referred to his caregivers as "mom" and "dad" and was very excited to see them after his visits with Mother. B.G. looked to his caregivers to fulfill the parental roles in his life.

After considering the evidence and arguments of counsel, the court denied Mother's section 388 petition. The court then found under section 366.26 that B.G. was adoptable and his parents' parental rights therefore should be terminated and a permanent plan of adoption be selected unless they carried their burden to show the beneficial parent-child relationship exception applied. Although the court found that Mother had shown she had maintained regular visitation and contact with B.G., it concluded she had not shown she had a beneficial parent-child relationship with him or that the benefits to B.G. of continuing his relationship with Mother outweighed the benefits to him of the permanency of adoption. In particular, the court found that B.G. was attached to Mother "like an aunt or uncle or somebody [whom] you would visit, and he recognizes you" but that Mother did not have a parental relationship with B.G. Accordingly, the court found the beneficial parent-child relationship exception did not apply, terminated Mother's and Father's parental rights to B.G., and selected adoption as B.G.'s permanent plan. Mother timely filed a notice of appeal challenging the judgment.

Father did not appeal the judgment.

DISCUSSION

I

Beneficial Parent-Child Relationship Exception Generally

The purpose of a section 366.26 hearing is to determine and implement the appropriate permanent plan for a dependent child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court can choose among three permanent plans: adoption, legal guardianship, and long-term foster care. (§ 366.26, subd. (b).) When a child is adoptable, termination of parental rights and adoption is the preferred permanent plan unless there are countervailing circumstances or adoption is not in the child's best interests. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn H.).)

At a section 366.26 hearing, it is the parent's burden to show an exception to termination of parental rights. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Erik P. (2002) 104 Cal.App.4th 395, 401.) One exception is when termination of those rights 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).) The court must find both: (1) the existence of a beneficial parent-child relationship; and (2) that relationship between the parent and child "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." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Alternatively stated, the beneficial parent-child relationship exception "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395 (Anthony B.).) In making the determination of whether the beneficial parent-child relationship exception applies, the juvenile 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." (Id. at p. 397) Because interaction between a child and his or her parent will generally confer some incidental benefit to the child, the parent must prove the child will benefit to such a degree as to overcome the preference for adoption. (Ibid.) For the beneficial parent-child relationship exception to apply, the parent must show, inter alia, that the emotional attachment between the child and the parent is of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.); In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 (Beatrice M.).) Some of the factors the juvenile court should consider when determining whether the parent-child 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. (Angel B., at p. 467.)

On appeal, we apply both substantial evidence and abuse of discretion standards in reviewing a juvenile court's determination that the beneficial parent-child relationship exception does not apply. (In re J.C. (2014) 226 Cal.App.4th 503, 530-531 (J.C.).) "We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child. (Anthony B., supra, 239 Cal.App.4th at p. 395.) Under the substantial evidence standard, we review the evidence, and make all reasonable inferences therefrom, favorably to support the judgment. (Id. at pp. 395-396.) Under the abuse of discretion standard of review, we determine whether the juvenile court's decision exceeded the bounds of reason, and, in so doing, we cannot substitute our view for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

II

The Court Properly Found the Beneficial Parent-Child Relationship

Exception Did Not Apply in This Case

Mother contends the juvenile court erred in finding that the beneficial parent-child relationship exception did not apply. As we explain, the court did not err.

Because Mother does not challenge on appeal the court's denial of her section 388 petition, we need not, and do not, address that portion of the judgment.

As Mother notes, at the section 366.26 hearing, the court found that she had maintained regular visitation and contact with B.G. Our review of the record supports, and Agency does not dispute, that finding. Accordingly, there is substantial evidence to support the initial requirement of the beneficial parent-child relationship exception that Mother "maintained regular visitation and contact with the child." (§ 366.26, subd. (c)(1)(B)(i).)

Although the court found Mother maintained regular visitation and contact with B.G., it further found she had not met her burden to show that she had a parent-child relationship with him or that the benefits to B.G. of continuing that relationship outweighed the benefits to him of a permanent placement in an adoptive home. Contrary to Mother's assertion, we conclude the court did not err in making those findings. First, based on our review of the record, we conclude there is substantial evidence to support the court's finding that Mother did not have a parent-child relationship with B.G. In particular, the court stated that B.G. was attached to Mother like a relative whom he recognized but that Mother did not have a parental relationship with him. The record includes Agency's reports and testimony by Pamatz, its social worker, regarding the nature of the relationship between Mother and B.G. Although Mother showed a parental role during visits and B.G. referred to her as "mama" or "ma" and was excited to see her, he did not appear to be distressed when the visits ended. In contrast, on separation from his caregivers, B.G. became distressed as shown by his crying, screaming, and kicking. After his visits with Mother, B.G. would enter his caregivers' home looking for "mom" and "dad." B.G. had not been in Mother's care for over 18 months and relied on his caregivers to meet his physical and emotional needs. Agency stated that although Mother had shown an ability to meet B.G.'s needs during visits, that was not an indication that a parent-child relationship existed. Accordingly, Agency opined that Mother's relationship with B.G. did not rise to the level of a parent-child relationship. Pamatz likewise testified that in her opinion Mother and B.G. did not share a parent-child bond, but that Mother's relationship with B.G. was more like that of a relative who was involved in the child's life. B.G. did not exhibit any separation anxiety at the end of his visits with Mother and referred to his caregivers as "mom" and "dad" and was very excited to see them after his visits with Mother. B.G. looked to his caregivers, instead of Mother, to fulfill the parental roles in his life. Based on the above evidence, we conclude there is substantial evidence to support the court's finding that Mother did not have a parent-child relationship with B.G. Therefore, the court properly found that Mother did not meet her burden to show the emotional attachment between her and B.G. was of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (Angel B., supra, 97 Cal.App.4th at p. 467; Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)

Mother does not challenge the court's finding that B.G. is adoptable. Accordingly, we do not discuss that finding and the evidence supporting it.

We further conclude the court did not abuse its discretion by finding that the benefits of continuing his relationship with Mother did not outweigh the benefits to him of a permanent placement in an adoptive home. Agency's section 366.26 report stated that because no parent-child relationship existed between Mother and B.G., it would not be detrimental to him to terminate Mother's parental rights. In particular, Agency opined that B.G. did not have a significant parent-child relationship with Mother that would outweigh the benefits to him of adoption by his caregivers. Agency reported that B.G. had not been in Mother's care for 18 months and relied on his caregivers to meet his physical and emotional needs. B.G. was thriving is in his caregivers' home and had a close sibling bond with E.A.J., who was also in the home. Given the lack of a significant parent-child relationship between Mother and B.G., the court reasonably could conclude that the benefits to B.G. of a permanent placement in an adoptive home outweighed the benefits of continuing his relationship with Mother. (Cf. Autumn H., supra, 27 Cal.App.4th at p. 575 [beneficial parent-child relationship exception applies only if relationship between parent and child "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"].) Accordingly, we conclude the court did not abuse its discretion by finding the benefits of continuing his relationship with Mother did not outweigh the benefits to him of a permanent placement in an adoptive home and therefore the beneficial parent-child relationship exception to adoption did not apply.

To the extent Mother cites evidence or inferences therefrom that would support a contrary conclusion, she misconstrues and/or misapplies the applicable hybrid standard of review. (See, J.C., supra, 226 Cal.App.4th at pp. 530-531; Anthony B., supra, 239 Cal.App.4th at pp. 395-396.) In particular, contrary to Mother's assertion, the court did not abuse its discretion by implicitly finding termination of her relationship with B.G. would not deprive him of a substantial, positive emotional attachment such that he would be greatly harmed. (Anthony B., at pp. 394-395.)

DISPOSITION

The judgment is affirmed.

IRION, J. WE CONCUR: O'ROURKE, Acting P. J. AARON, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. M.A. (In re B.G.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 23, 2020
No. D076429 (Cal. Ct. App. Jan. 23, 2020)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. M.A. (In re B.G.)

Case Details

Full title:In re B.G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 23, 2020

Citations

No. D076429 (Cal. Ct. App. Jan. 23, 2020)