Opinion
D076474
02-07-2020
In re R.B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.B., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Kristen M. Ojeil, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4232) APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
M.B. (Mother) appeals a judgment terminating her parental rights to her minor child, R.B., 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 selection of a permanent plan of adoption and termination of her parental rights. Based on our reasoning below, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2017, R.B. was born. In January 2018, the San Diego County Health and Human Services Agency (Agency) filed a Welfare and Institutions Code section 300, subdivision (b) petition on behalf of R.B., alleging that he suffered, or there was a substantial risk that he would suffer, serious physical harm or illness as result of his parents' failure or inability to supervise or protect him adequately. The petition alleged, inter alia, that Mother and R.B.'s father, E.B. (Father), periodically exposed R.B. to violent confrontations between them and that both parents had tested positive for methamphetamines.
All statutory references are to the Welfare and Institutions Code.
At the detention hearing, the court found Agency had made a prima facie showing on the petition and ordered R.B. detained. At the contested jurisdiction and disposition hearing, the court found the petition's allegations to be true, declared R.B. a dependent of the court, and ordered that he be placed in the home of a relative and that Mother and Father receive reunification services.
In its six-month status review report, Agency stated that Mother had been incarcerated in May for identity theft and, while incarcerated, had video visits with R.B. It also stated that Mother and Father had previously been arrested for distributing and possessing methamphetamines. It stated that although Mother had consistently visited with R.B., she had not participated in any of her reunification services and showed little or no behavioral changes regarding the protective issues. At the September six-month review hearing, the court continued R.B. as a dependent and ordered that Mother and Father continue to receive reunification services.
Agency previously reported that Mother had been arrested in January for fraud, in February for possessing a stolen vehicle and committing a felony while out on bail, and in March for having false identification, possessing a check in an amount over $950 with the intent to defraud, and being a felon in possession of tear gas.
In its 12-month status review report, Agency stated that Mother had been arrested in February 2019 for a parole violation and was currently incarcerated. It stated that Mother had not engaged in reunification services, inconsistently visited with R.B., and continued to test positive for methamphetamines. Father likewise continued in his criminal activity and drug use and did not visit R.B. Agency recommended that the court terminate the parents' reunification services and set a section 366.26 selection and implementation hearing. In an addendum report, Agency stated that Mother had failed to follow through on its referrals for substance abuse treatment and domestic violence services and had not remained in contact with it. At the April 12-month review hearing, the court ordered that reunification services for Mother and Father be terminated and it set a section 366.26 selection and implementation hearing for R.B.
In its section 366.26 report, Agency stated that Mother inconsistently visited R.B. during his dependency, citing her repeated incarcerations and residential drug treatment programs. During one visit while Mother was incarcerated, R.B. went into her arms and they played together. Mother interacted well with him. At the end of the visit, R.B. separated from Mother and happily returned to his caregiver. During a subsequent visit while Mother was in a residential drug treatment program, R.B. easily went to her and she picked him up with a hug. They went for a walk and watched birds and later colored with pencils. At the end of their visit, R.B. showed no signs of distress. During weekly visits with Mother thereafter, R.B. would go to her, but was generally quiet. Mother got down on the floor and played with him. At the end of their visits, R.B. was excited to see his caregivers and called his female caregiver "mama." Agency stated that R.B. was specifically and generally adoptable. R.B. was placed with relative caregivers who would like to adopt him. Agency opined that neither Mother nor Father had a parental relationship with R.B. Both parents had limited interaction with R.B. due to their incarcerations. Despite good interactions between Mother and R.B., Agency stated that she had "not been able to establish a basic relationship with [R.B.]." R.B. looked to his caregivers and not his parents for his needs to be met. Agency opined that the benefits of adoption to R.B. outweighed the relationship he had with either parent. Accordingly, Agency recommended that the court terminate Mother's and Father's parental rights and select adoption as R.B.'s permanent plan.
At the section 366.26 selection and implementation hearing in August, neither parent presented any evidence and Mother's counsel argued that the beneficial parent-child relationship exception to adoption applied to preclude termination of her parental rights. Considering the documents admitted in evidence and arguments of counsel, the court found that R.B. was likely to be adopted and no exception to the preference for adoption and termination of parental rights applied. Accordingly, the court terminated Mother's and Father's parental rights and selected adoption as R.B.'s permanent plan. Mother timely filed a notice of appeal challenging the judgment.
Father did not file a notice of appeal.
DISCUSSION
I
Beneficial Parent-Child Relationship Exception Generally
Under California's juvenile dependency scheme, "[o]nce reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The purpose of a section 366.26 hearing is to determine and implement the appropriate permanent plan for a dependent child. (Ibid.) 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 interest. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
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." (In re 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.) 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 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, 468; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) 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. (In re 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.) "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." (In re 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.
Although the court did not expressly address the question of whether Mother maintained regular visitation and contact with R.B. within the meaning of section 366.26, subdivision (c)(1)(B)(i), and the record shows she had, at best, intermittent visitation with him, we assume arguendo that she maintained regular visitation and contact with him. Nevertheless, because the court found that the beneficial parent-child relationship exception did not apply in this case, we conclude the court implicitly found that Mother had not met her burden to show that she had a beneficial parent-child relationship with R.B. or that the benefits to R.B. 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.
Mother does not challenge the court's finding that R.B. is adoptable. Accordingly, we do not discuss that finding and the evidence supporting it.
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 beneficial parent-child relationship with R.B. At the time of the section 366.26 hearing, then two-year-old R.B. had spent only the first five months of his life in Mother's care. Due to Mother's repeated incarcerations and residential drug treatment programs, she inconsistently visited R.B. during his dependency. Furthermore, based on Agency's observations of those visits, Mother did not have a beneficial parent-child relationship with R.B. Although during visits Mother interacted well with R.B., he easily separated from Mother at the end of the visits and R.B. was excited to see his caregivers and called his female caregiver "mama." Agency opined that Mother did not have a parental relationship with R.B. Despite good interactions between Mother and R.B., Agency stated that she had "not been able to establish a basic relationship with [R.B.]." R.B. looked to his caregivers and not Mother for his needs to be met. Applying the applicable standard of review, we conclude the above evidence shows there is substantial evidence to support a finding that Mother did not have a parent-child relationship, much less a beneficial parent-child relationship, with R.B. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In particular, the court could properly find that Mother did not meet her burden to show the emotional attachment between her and R.B. was of a parental nature rather than one of a friendly visitor or friendly nonparent relative. (In re Angel B., supra, 97 Cal.App.4th at p. 468; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)
Second, based on our review of the record, we further conclude the court did not abuse its discretion by finding that the benefits to R.B. of continuing his relationship with Mother did not outweigh the benefits to him of a permanent placement in an adoptive home. In its section 366.26 report, Agency stated, as discussed above, that Mother did not have a beneficial parent-child relationship with R.B. and, based thereon, opined that the benefits of adoption to R.B. outweighed the benefits to him of relationship he had with Mother. Agency, in effect, opined that because no beneficial parent-child relationship existed between Mother and R.B., it would not be detrimental to him to terminate her parental rights. R.B. was doing well in his caregivers' home and called the female caregiver "mama." Given the lack of a significant parent-child relationship between Mother and R.B. and Mother's history of drug abuse and criminal offenses, the court reasonably could find that the benefits to R.B. of a permanent placement in an adoptive home outweighed the benefits of continuing his relationship with Mother. (Cf. In re 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 beneficial parent-child relationship exception to adoption did not apply. (Ibid.; In re Anthony B., supra, 239 Cal.App.4th at pp. 394-395.) In particular, the court reasonably could find that the severance of Mother's relationship with R.B. would not deprive him of a substantial, positive emotional attachment such that he would be greatly harmed. (In re Anthony B., at pp. 394-397.)
To the extent Mother cites evidence and inferences therefrom that would have supported contrary findings by the court, she misconstrues and/or misapplies the applicable standards of review. (In re J.C., supra, 226 Cal.App.4th at pp. 530-531.) In particular, Mother argues she had a loving relationship with R.B., as shown by the nature of her visits with him. However, Mother's cited evidence does not show that there is insufficient evidence to support the court's finding that Mother did not have a beneficial parent-child relationship with R.B. or that the court abused its discretion by finding that the benefit to R.B. of continuing his relationship with her would not outweigh the benefit to him of a permanent home with adoptive parents.
Furthermore, In re E.T. (2018) 31 Cal.App.5th 68, cited by Mother, is factually inapposite to this case and does not persuade us to reach a contrary conclusion. In that case, the mother self-reported her drug relapse, voluntarily placed her children with their godparents, and promptly entered into a drug treatment program. (Id. at pp. 77-78.) The appellate court concluded the juvenile court erred by removing the children from her care and denying her reunification services. (Ibid.) Also, we note that In re E.T. may have misconstrued or misapplied the correct standard for the beneficial parent-child relationship exception, phrasing that standard at one point as "whether the children benefit from Mother's presence in their lives, not whether they could eventually be happy without her." (Id. at p. 77.) Accordingly, despite some factual similarities between that case and the instant case, we are not persuaded by In re E.T.'s reasoning that the juvenile court in this case erred by concluding the beneficial parent-child relationship exception did not apply and selecting adoption as R.B.'s permanent plan.
Finally, Mother argues the court abused its discretion by selecting adoption, instead of guardianship or long-term foster care, as R.B.'s permanent plan. She argues that because R.B.'s caregivers were open to both guardianship as well as adoption, the court should have instead selected a permanent plan of guardianship or long-term foster care and thereby preserved R.B.'s loving relationship with her. However, 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 interest. (In re Heather B., supra, 9 Cal.App.4th at p. 546; In re Autumn H., supra, 27 Cal.App.4th at p. 574.) Based on our review of the record in this case, we conclude the court did not abuse its discretion by finding there were no countervailing circumstances or other evidence showing adoption was not in R.B.'s best interest. Accordingly, the court properly selected adoption as R.B.'s permanent plan and terminated Mother's parental rights. (Cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 ["it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement"].)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. DATO, J.