Opinion
C091008
05-27-2020
In re S.L., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.L., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STKJVDP20170000455)
R.L., mother of the minor (mother), appeals from the juvenile court's order terminating her parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366, 395; unless otherwise stated, statutory section references that follow are to the Welfare and Institutions Code.) She claims the court erred by finding the beneficial parental relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) She also claims the court should have ordered a permanent plan of legal guardianship. We affirm the juvenile court's orders.
FACTS AND PROCEDURAL HISTORY
The six-year-old minor came to the attention of the San Joaquin County Human Services Agency (Agency) in August 2017 when it was reported the minor and her 15-year-old sibling, I.L., were living in a home with no running water, electricity, or food. The home reportedly smelled bad due to the animals living inside. The children had to walk several blocks to their maternal great-aunt's home to use the bathroom and eat. I.L. was not regularly attending school. Mother was using methamphetamine and marijuana and allowed I.L. and his friends to use marijuana in the home as well. Mother often left the minors at home with no adult supervision.
On September 27, 2017, the Agency filed dependency petitions on behalf of the minor and I.L. pursuant to section 300, subdivisions (b), (g), and (j), alleging mother's failure to protect or provide regular care for the children due to mother's substance abuse problem, history of substantiated Child Protective Services (CPS) referrals beginning in May 2011, criminal record and history of domestic violence, and domestic violence in her current relationship with her boyfriend. It was also alleged that the minor's half-sibling, N.L., had been placed in a legal guardianship since infancy due to mother's inability to care for him, her substance abuse issues, and her history of substantiated CPS referrals. The petition noted mother received three months of voluntary family maintenance services in 2016 with respect to N.L.
The juvenile court ordered the minor detained on September 28, 2017, along with supervised visitation for mother. On November 2, 2017, the court sustained the allegations in the petition.
Mother reportedly first began using drugs as a teenager and was using marijuana and methamphetamine just days prior to the December 2017 interview. Mother reported a family history of substance abuse, noting the maternal grandmother used methamphetamine and they occasionally used together, but the maternal grandmother had reportedly been sober for a number of years.
The minor had some very minor emotional issues, primarily related to missing mother and disappointment when mother did not visit her. The minor stated she missed mother and would like to see her more, but she had spent considerable time with her nonrelated extended family member caretakers and was very comfortable living with them.
The Agency reported mother failed to engage with the social worker, missed court dates, and failed to follow through with the parameters for arranging visitation. While mother recently indicated a willingness to participate in services, she had yet to present herself for a drug court assessment. In the meantime, the minor, who was placed together with I.L., was found to be adoptable and her caretakers were open to adoption in the event mother failed to reunify.
At the January 10, 2018 uncontested dispositional hearing, the court found mother made no progress in her case plan and ordered removal of the minor and continued reunification services to mother.
The Agency advised the court, at the June 27, 2018 review hearing, that the social worker was unable to communicate with mother because mother would not respond to texts, telephone calls, voicemails, or social media. The Agency also informed the court that mother had not participated in the previously-ordered dependency drug court assessment. The court ordered an immediate assessment and gave the Agency discretion to increase visits for mother and grandmother.
According to the status review report filed July 12, 2018, the minor and I.L. remained in out-of-home placement together with their half-sibling, N.L., who was already in a legal guardianship with the caretakers. The minor adjusted well to her placement and had not exhibited any behavioral problems. She told the social worker she did not want to return to mother and wanted her current caretakers to adopt her.
Mother's visits were scheduled weekly for one hour. She was required to call and confirm her attendance by 11:00 a.m. the day prior to each visit. Since June 30, 2018, mother only attended 14 of 27 scheduled visits. Her failure to show up for visits caused the minor to become upset.
Mother reportedly failed to participate in her case plan, which included drug treatment, personal counseling, parenting classes, and finding adequate housing. She was assessed by a drug court compliance officer following the last hearing and was instructed to report to Family Ties residential drug treatment within 24 hours. Mother was admitted to Family Ties on June 28, 2018 and tested positive for methamphetamine, amphetamine, and marijuana. She left the program that same night and did not return. She was scheduled to attend drug court on July 20, 2018. Mother was referred to personal counseling and parenting classes but failed to participate in either service. She continued to live with family members in a home that had yet to be assessed. Mother also reported she was approximately six months pregnant and the Agency had concerns she was continuing to use drugs while pregnant.
The Agency recommended continued reunification services to mother, cautioning that she had made no progress after 10 months of services and continued to use illegal substances while pregnant and only had a couple months more to take advantage of her services.
At the July 18, 2018 status review hearing, the court was informed that mother had returned to Family Ties on July 11, 2018. The court admonished mother to "pick it up" and keep moving forward and ordered continued reunification services.
The Agency's September 11, 2018 status review report stated mother's visits had become more consistent since being at Family Ties. She was participating in parenting classes through Family Ties but had yet to participate in personal counseling. The minor and her siblings continued to do well in placement together. The minor was receiving counseling to address ongoing emotional issues primarily related to past trauma and reluctance to reunify with mother. The minor told the social worker, "I'm afraid to go home with my mom because they don't take care of me." The minor reported that while visits were going well, she experienced anxiety and continuing nightmares following visits with mother because she worried she would have to return home. Because mother made some effort to participate in her case plan while at Family Ties, the Agency recommended six additional months of services.
At the September 26, 2018 review hearing, mother and the Agency requested increased visitation. The minor's counsel expressed concern about increasing visits due to the minor's anxiety and hesitancy to participate but agreed so long as the visits were monitored. The court granted the Agency discretion to allow for increased visitation and unsupervised visitation in consultation with the minor's counsel.
The status review report filed March 18, 2019, stated mother completed five months of residential drug treatment at Family Ties and continued to participate in aftercare and drug court. She completed 14 of 20 counseling sessions and completed the parenting program while in treatment. However, after completing treatment at Family Ties, mother moved back to the maternal grandmother's home despite having been informed by the social worker that residing with family members who had extensive CPS and drug history would prevent her from reuniting with the minors. Mother stated she intended to find housing with her current boyfriend who was also the father of her newborn child. Mother's twice-weekly unsupervised visits with the minor were going well but had not transitioned to extended or overnight because of mother's election to reside at the maternal grandmother's home.
The minor's placement continued to be appropriate and the minor was doing well. She was stable in her placement and wanted to remain there. However, she remained fearful that she would continue to be neglected if returned to mother. She was adamant that she wanted to be adopted by her caregivers but did not want to lose contact with her biological family. On February 28, 2019, the minor stated, "I want to be adopted by [my current caretakers] and I do not want to be split up from my brother, but I still want to visit my mom." The minor's sibling, I.L., stated he wanted to return home to his mother "so he does not have to go to school and can smoke weed all day."
The Agency recommended termination of services, noting mother received 18 months of services but, due to her unstable housing, it was not possible to return the minor to mother's care within the allotted time.
On April 18, 2019, the court ordered that visitation between mother and the minor take place at the visitation center and prohibited both the maternal aunt and mother's boyfriend from attending. At the contested review hearing several days later, the parties discussed that community visits were temporarily halted as a result of three prior incidents involving verbal and physical altercations between mother's boyfriend and the maternal aunt during visits with the minor. The Agency informed the court that, following one incident, the minor indicated she was unsure she wanted to continue visits. Mother requested, and the Agency agreed to, the reinstatement of community visits with only mother and the maternal grandmother present. The court ordered one community visit per week and one visit at the visitation center per week to include only mother and the maternal grandmother, predicated on whether the minor felt safe to participate.
At the contested review hearing on June 6, 2019, the Agency stipulated that mother completed inpatient substance abuse treatment at Family Ties, was compliant with drug court, and had not recently tested positive for drugs. Mother testified she completed parenting education and counseling and attended four Alcoholics Anonymous/Narcotics Anonymous meetings a week. She acknowledged she did not begin substance abuse treatment until nine months after the minor was removed from her care. Mother also testified she visited the minor twice weekly.
Mother confirmed she was still living with the maternal grandmother. She acknowledged having been informed that, when she completed her drug treatment program at Family Ties, she could not reunify with the minor if she returned to the maternal grandmother's home. She testified that, even if the maternal grandmother did not have a criminal or CPS history, there was not enough room for the minors in the maternal grandmother's house. She was looking for a suitable place to live with her boyfriend, her newborn baby, and the minor and her siblings, but she did not currently have a suitable home for the minor and she did not know when one would be available.
Mother was unaware that her boyfriend had two DUI convictions from 2018, he had only recently stopped drinking, and he had never participated in any type of substance abuse treatment program. Mother acknowledged the minor did not want to reunify with mother and wanted to be adopted by her caretakers.
Social worker Debra Lewis testified mother's current housing was not appropriate because she lived with relatives with criminal drug histories, thus preventing visitation in the home as well as extended or overnight visits. Lewis testified that, around the time mother was finishing the Family Ties program, Lewis informed mother she would not be able to reunify with the minor if she moved back into the maternal grandmother's house. She provided mother with other housing options such as shelters, the housing authority unification program, and Section 8. However, mother said she and her boyfriend were still going to move back in with the maternal grandmother.
Lewis also confirmed mother's boyfriend had two DUI convictions, the most recent of which was March 12, 2018. When Lewis spoke with the boyfriend about the DUI convictions, he stated he stopped drinking but did not do what was required of him to rectify the problem and had yet to complete a driver's safety class. Despite that, Lewis was informed the boyfriend had been driving with mother's infant child after the most recent visit.
Lewis confirmed mother completed various aspects of her case plan and had not tested positive since completing the Family Ties program. Lewis testified that, while the minor said she liked visiting mother and wanted to maintain visitation, the minor also said she did not want to return home to mother.
At the conclusion of testimony, the Agency argued mother continued to use drugs during the first nine months of the case and failed to engage in services until long after the minor was detained. As a result, the minor was not yet ready to meaningfully engage in services with mother. The Agency argued that, while mother completed "everything asked of her" with respect to substance abuse treatment, the minor continued to need ongoing counseling to deal with her past trauma and her reluctance to reunify with mother. On the other hand, the minor loved her mother but had been asking for permanence via adoption by her caretakers since the inception of the case. The Agency further argued mother's choice to return to the maternal grandmother's home and her refusal to consider other available housing options further impeded her ability to reunify with the minor due to the safety concerns regarding the other occupants of the home and the fact that there was insufficient room for the minor and her siblings. The Agency also voiced its concerns about mother's boyfriend and whether it was safe for the minor to be around him. Minor's counsel agreed and noted the minor had "trust issues" with mother and did not want to return to mother's custody.
The court acknowledged mother's hard work over the past year since engaging in services, but noted she "wasted many months, nine, ten months" during which she continued to use drugs before engaging in services, all of which negatively impacted the minor. The court stated the issue of housing was critical, noting mother failed to avail herself of opportunities to utilize other housing resources provided by the Agency and further noting mother's housing issues hindered her ability to extended visits with the minor. The court also expressed concern that mother's boyfriend had substance abuse issues of his own and questioned whether he would be "the kind of support person you need to help you deal with your sobriety."
The court found return of the minor to mother would create a substantial risk of detriment to the minor's safety, protection, physical, and emotional well-being and there was no substantial probability the minor would be returned to mother within the required time. The court continued the minor in out-of-home placement, terminated mother's reunification services, and set the matter for a section 366.26 hearing.
The status review report filed September 12, 2019, stated the minor's bond with her caregivers for the past two years continued to grow and the minor seemed comforted in the knowledge that her current placement would be her "forever home." When asked if she wanted to be adopted by her caregivers, the minor stated she wanted to live with her caregivers forever and she felt safe and secure in her placement. The caregivers, who were retired and cared for the minor full-time, were becoming "profoundly attached to the minor" and wanted nothing more than to adopt her. They enjoyed bringing the minor on outings, including taking her swimming, shopping, and eating out. They continued to provide for her basic needs, including sufficient food, clothing, healthcare services, education, and emotional and physical security.
While mother's visits had been consistent, the Agency recommended visits begin to decrease as the case moved toward permanency. The Agency further recommended termination of parental rights and identification of adoption as the appropriate permanent plan.
The section 366.26 report filed September 18, 2019, reiterated the bond between the minor and her caregivers and the minor's desire to remain with and be adopted by her caregivers. The Agency concluded that termination of mother's parental rights would not pose a risk of detriment to the minor.
At the September 25, 2019 review hearing, the Agency requested, and mother did not oppose, a change in the visitation schedule to once weekly visits for two hours at the visitation center. The court ordered the requested modification.
The section 366.26 hearing commenced on November 19, 2019. No party presented evidence. The Agency requested termination of parental rights, arguing two years had passed since the minor was removed, the minor wanted to be adopted, and the caregivers were willing to provide visitation between the minor and her siblings. Minor's counsel also noted the duration of the case and argued the minor deserved a stable placement.
Mother's counsel opposed termination and asked the court to consider guardianship as the permanent plan, arguing there was no guarantee of continued visitation if parental rights were terminated. Counsel also argued mother's visitation had been unsupervised and consistent with no issues, and mother wanted to continue to be a part of the minor's life.
The court noted it was mother's burden to prove one of the exceptions to adoption applied and stated, "I've had no evidence today as to that." The court terminated parental rights, finding the minor would likely be adopted, termination of parental rights was in the minor's best interest and was not detrimental to the minor, and none of the exceptions under section 366.26, subdivision (c)(1) applied.
DISCUSSION
I
Beneficial Parental Relationship Exception
Mother contends the juvenile court erred when it found the beneficial parental relationship exception to adoption did not apply. Having failed to assert this exception in the juvenile court, she has forfeited the issue on appeal.
At the selection and implementation hearing, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
The juvenile court has no sua sponte duty to determine whether an exception to adoption applies. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Rather, the parent has the burden of affirmatively raising and proving that an exception applies. (Ibid.; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re C.F. (2011) 193 Cal.App.4th 549, 553; Cal. Rules of Court, rule 5.725(d)(2).)
Here, mother was present with counsel at the selection and implementation hearing. Counsel objected generally to termination and asked the court to consider guardianship as the permanent plan. Counsel also argued mother was having consistent visits with the minor and wanted to continue to do so, and that mother wanted to continue to be a part of the minor's life. However, there was no mention of the applicability of the beneficial parental relationship exception, the bond between mother and the minor, or any detriment that would incur from termination of mother's parental rights, nor is there anything in the record that can be said to constitute an effort to place the beneficial parental relationship exception at issue. Thus, mother has forfeited her claim by failing to assert it in the juvenile court. (In re Daisy D. (2006) 144 Cal.App.4th 287, 291-292; In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
The fact that the juvenile court made the oral finding that termination was in the minor's best interest and would not be detrimental to the minor, or the fact that the Agency's report may have included information regarding the history of contact between mother and the minor, does not excuse mother's forfeiture of her claim. The issue was not asserted in the juvenile court. As the juvenile court stated, it was mother's burden to prove one of the exceptions to adoption applied, but "I've had no evidence today as to that." Mother's failure to raise the exception prevented the Agency and the minor from having a full and fair opportunity to present evidence and litigate the issue at the hearing. We will not review the evidentiary support for the findings when the Agency and the minor were not provided a fair opportunity to present an adequate record in response. (See People v. Adam (1969) 1 Cal.App.3d 486, 489.)
II
Identification of Adoption as Permanent Plan
Mother also challenges the juvenile court's selection of adoption as the permanent plan for the minor, arguing guardianship would have provided the minor with the stability she needed while at the same time maintaining her vital relationship with mother. The claim lacks merit.
If the juvenile court finds, by clear and convincing evidence, a child will likely be adopted if parental rights are terminated, the parent then has the burden to show termination would be detrimental to the child under one of four specified exceptions. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1)(A), (D).) In the absence of such evidence, the juvenile court must terminate parental rights and free the child for adoption. (In re Matthew C. (1993) 6 Cal.4th 386, 392; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342-1343.)
Mother claims it was wrong to terminate her parental rights and order a plan of adoption "because of the relationship [the minor] had with mother and because there was an individual willing to serve as guardian." However, it is well-established that "the current dependency scheme clearly gives 'first priority to adoption as the most desirable permanent plan,' and guardianship will not be considered unless adoption has been rejected due to the applicability of statutory exceptions. [Citations.]" (In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1573.) As the juvenile court concluded, none of the exceptions pursuant to section 366.26, subdivision (c)(1) applied here.
The court did not err in selecting adoption as the permanent plan.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HULL, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
KRAUSE, J.