Opinion
A148294
04-04-2017
In re MYA O., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. JV84134)
G.D. (Mother), mother of two-year-old Mya O., appeals from the juvenile court's orders terminating her parental rights and ordering adoption as the permanent plan, pursuant to Welfare and Institutions Code section 366.26. Mother contends these orders must be reversed because the court's finding that she failed to establish the applicability of the beneficial parent-child relationship exception to adoption was not supported by substantial evidence. We shall affirm the juvenile court's orders.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On November 25, 2014, the San Mateo County Human Services Agency (Agency) filed an original petition alleging that Mya came within the provisions of section 300, subdivisions (a) and (b), in that that she was at substantial risk of suffering serious harm as a result of a domestic dispute between the parents. In particular, the petition alleged that on November 18, Mother and presumed father Oscar O. (Father) were observed arguing loudly at a shopping mall while in the presence of Mya, who was then four months old. While Father was holding Mya, Mother threw Mya's car seat out of the window and drove off. Father then left Mya with two strangers who had witnessed the dispute, telling them he had to go to work. Subsequently, on November 24, Mother, who was intoxicated, contacted Father and threatened to " 'kill or harm' " Mya, Father, and members of Father's family.
Because Father is not a party to this appeal, the primary focus in this opinion will be on facts related to Mother and Mya.
In a detention report filed on November 26, 2014, the social worker reported that Mother had signed a voluntary placement agreement under which Mya was placed with the paternal aunt (aunt), with Mother's visits supervised by the aunt or paternal grandmother. The paternal grandmother described a prior domestic violence incident she witnessed between Mother and Father, during which Mother was " 'out of control' " and " 'violent.' " She was throwing Father's belongings out of the house. She kicked Father while he was holding Mya, and Father " 'gently tried to kick her to make her stop.' " Mother called the police and was arrested. The paternal grandmother believed that Mother is a " 'good mother' " but has a " 'very strong temper.' " The aunt told the social worker that Mother and Father " 'are both really great parents' " but that they " 'have really strong tempers.' "
During a meeting with Mother at the home she shared with Father, Mother told the social worker she worked in housekeeping and Father was a limousine driver. She and Father fought every time he smoked marijuana; she is concerned about his addiction to marijuana and alcohol. She said she left Mya with Father at the mall because he took Mya and would not give her back. She gave him the car seat and told him to bring Mya home that night. When he did not come home that night, she called police. Mother denied threatening to hurt or kill Mya, Father, or paternal relatives.
Father told social workers that he had left Mya with people he had known for only a few hours because he had a strong feeling that they were good people, and he had to get to work at his new job. He said that he and Mother were not married, but had been together for two years. They fought about every other day, arguing about money, Father spending time with Mother and Mya, and his marijuana use, for which he had a marijuana card. Father also said that he had a three-year-old son with another woman. He described the arguments between him and Mother as " 'very ugly.' " He was adamant that he did not hit her, but sometimes grabbed and hugged her to calm her down. Father also said that Mother got drunk on November 24, and threatened to " 'kill Mya and get pregnant by someone else so Mya can be reborn.' " She also threatened the paternal grandmother, the aunt, Father, and Father's son. She was " 'into witchcraft' "and had said that " 'she started last night' and 'she is going to finish it.' "
The Agency recommended that Mya be detained with the aunt, who had "demonstrated an existing bond" with Mya. The parents had expressed a strong attachment to Mya and a desire to care for her, but "continued to argue with each other and place blame," instead of focusing on Mya's safety.
At the November 26, 2014 detention hearing, the court ordered Mya detained. The court further ordered that both parents be tested immediately for drugs and that Mother undergo a mental health evaluation.
In a jurisdiction/disposition report filed on January 9, 2015, the social worker's assessment was that the parents had "a conflictual relationship that has resulted in frequent verbal and physical altercations." Father had indicated that Mother's mental health issues were a danger to him and Mya, while Mother had stated that Father's marijuana use and financial irresponsibility were problems. The social worker also observed that the parents had strong feelings toward each other, sometimes positive and sometimes negative. They both cared deeply and showed great affection for Mya. They were both employed and resourceful and, "[i]ndividually, they are each thoughtful and friendly."
Mother had repeatedly tested negative for alcohol and drugs in December 2014, and had participated in a psychological evaluation on December 31. The evaluator reported that Mother " 'has a psychological structure that is somewhat functional, but under stress and because of great disappointment, she becomes irrational and explosive, and she may miss at times connections to what is relevant in reality.' " The evaluator diagnosed Mother with acute distress disorder, borderline personality disorder with obsessive compulsive and narcissistic features, and relationship problems. It was recommended that she participate in therapy and domestic violence workshops, and that visits with Mya remain supervised.
Mya was healthy and appeared to be developmentally on target. The social worker described her as "a good natured and calm baby." Mya was still placed with the aunt, and Mother had regularly visited with her. During visits, Mother cared for Mya appropriately and Mya appeared comfortable and happy in Mother's presence.
The Agency recommended that the petition be sustained, that Mya be declared a dependent child of the court and remain in out of home placement, and that the parents participate in reunification services.
On January 14, 2015, the court ordered that Mother have no contact with the aunt, the paternal grandmother, or Father. The court also reduced Mother's visits with Mya to twice weekly.
In a January 30, 2015 report, the social worker reported that Mother had engaged in services and visitation, but that there had been one instance of contact between the parents since the no contact order had been issued. The Agency requested that a continued temporary restraining order (TRO) be issued through the April 9 jurisdiction/disposition hearing. On February 2, the court issued the TRO against Mother as requested.
In an addendum report filed on April 6, 2015, the social worker reported that Mother had attended four therapy sessions, three parenting classes, and two anger management classes. She had continued to participate in supervised visits with Mya, during which she took "loving, appropriate care of the child." However, since the February 2 TRO hearing, "both parents chose to lie to the [social worker] and the Agency, and violate the restraining order by engaging in contact and cohabitation for at least two weeks. This led to conflict that resulted in multiple physical altercations." To Mother's credit, she had sought her therapist's help regarding the domestic violence, and followed the therapist's and social worker's directions to report it to police. Mother's conduct, in continuing contact with Father and lying to the Agency, demonstrated that "she was not ready to choose an action that prioritized the return of her daughter over her engaging in a codependent relationship with the father."
The aunt and her fiancé were taking "excellent care of" Mya, who continued to make appropriate developmental progress.
The Agency continued to recommend family reunification services and further recommended that a permanent restraining order be issued restraining Mother from the aunt, paternal grandmother, and Mya, and that a TRO be issued restraining Father from Mother.
At the April 9, 2015 jurisdiction/disposition hearing, the parents submitted on an amended petition, which had deleted the original allegation related to Mother's threats to harm the child and others under subdivision (a) of section 300, and a related allegation under subdivision (b). There were added allegations under subdivision (b) regarding the parents' ongoing history of domestic violence, which placed Mya at substantial risk of physical and emotional harm. The court sustained the amended petition. The court then declared Mya a dependent of the court, found Father to be the presumed Father, and ordered reunification services and visitation for both parents. The court also ordered Mother to have no contact with the aunt or paternal grandmother, and continued the TRO between the parents for three months.
In an interim review report filed on July 10, 2015, the social worker reported that Mother was participating and had made progress in her reunification services, including individual therapy, parenting education, and domestic violence/anger management classes. Father had also begun to participate in services. Since the last reporting period, the parents had generally respected the TRO and had restrained from domestic violence. Father had admitted to one verbal dispute with Mother via telephone regarding his finances. Neither parent believed that the restraining order was necessary anymore.
Mya was a "healthy and happy baby" who was thriving in the aunt's care. She enjoyed her frequent visits with her parents and "display[ed] a secure attachment to both."
At the July 15, 2015 interim review hearing, the court continued Mya as a dependent of the court and set the matter for a six-month review on September 30.
In the six-month status review report filed on September 18, 2015, the social worker reported that Mother had completed court ordered reunification services. She also continued to maintain full-time employment as a housekeeper at a hotel and to visit with Mya twice a week. Mya seemed happy and comfortable in Mother's presence. Father had not engaged in services, though he had maintained positive visitation with Mya.
The parents had continued to engage in acts of domestic violence. Father left a voicemail for the social worker, telling her that Mother had threatened him and verbally abused him, and that they continued to have verbal and physical altercations. The paternal grandmother told the social worker that the parents saw each other daily and that she had seen the Mother verbally abuse Father. Father had also told the paternal grandmother about an incident in which Mother had blamed him for Mya being removed and placed with the aunt; she scratched him and grabbed him by the Adam's apple and would not let go. Father denied to the social worker that this incident had actually occurred. Mother told the social worker that she and Father had reconciled, but that he made up stories and that he " 'is the one that is crazy.' "
The social worker concluded that, although Mother "has completed services, her ongoing domestic disputes with the father suggest that she has not benefited from services or made substantial progress. . . . [¶] . . . [¶] The parents do not seem to understand or grasp the magnitude of their behaviors and the adverse consequences their actions have on Mya's safety and well-being. The parents are unreliable reporters of information and appear more concerned with each other than reunifying with their child."
The social worker described one-year-old Mya as a very happy baby who "remains in a safe environment with consistent caregivers who love her and are able to meet her needs. The paternal aunt is committed to providing the child with the permanency that she deserves at this young age."
The Agency recommended that reunification services be terminated for both parents and that the matter be set for a section 366.26 hearing.
On September 30, 2015, the court granted the request of the aunt and uncle (the aunt's fiancé) for de facto parent status.
In a December 9, 2015 addendum report, the social worker reported that Mother continued to be engaged in individual therapy and had made significant progress in decreasing her anxiety symptoms as well as in her ability to reflect and understand the importance of Mya's safety.
In a combined second addendum/12-month review report filed on January 8, 2016, the social worker reported that the aunt and paternal grandmother had advised her that the parents continued to live together at Mother's residence, despite the parents' insistence that they were no longer together. Mother's current landlord had told the Agency that the parents engaged in a domestic violence incident in October or November 2015. The landlord had reported that Father stayed with Mother several nights a week and that they had "engaged in numerous heated verbal arguments," including one in which she observed Father repeatedly hit Mother. When the landlord threatened to call police, both parents begged her not to.
The Agency continued to recommend termination of reunification services and the setting of a section 366.26 hearing.
At the 12-month review hearing, which took place on January 14, 2016, after finding that Mya could not be safely returned to the parents' custody and that both parents' progress in alleviating the causes of Mya's removal had been minimal, the court terminated reunification services and set the matter for a section 366.26 hearing.
On January 27, 2016, Mother filed a notice of intent to file a petition for extraordinary writ, and on February 5, 2016, Father filed a notice of intent to file a petition for extraordinary writ. On March 8, 2016, we ordered the filing of the record stricken due to both parents' failure to timely file a petition.
In the section 366.26 report filed on April 14, 2016, the social worker related that in February, Father had informed the Agency that he was moving to Colorado for work. On March 23, the social worker heard from the aunt that Father had moved and wanted to cancel future visits with Mya. The social worker was unable to reach Father to confirm his whereabouts.
Mother continued to participate in weekly supervised visits with Mya. The social worker described Mother as "animated and playful with the child during visits. The child recognizes the mother, reaches out to her and holds on to the mother during visits. The mother focuses on the child and is affectionate with her . . . ." However, on March 6, Father had told the social work supervisor that Mother had been calling the mother of Father's son "and telling her that her child was a 'bastard' and a 'son of a bitch.' "
The adoption social worker reported that Mya was now a happy 20-month-old, who was attached to the aunt and the aunt's fiancé. She was deemed adoptable due to her "young age, development, and ability to bond with her paternal aunt and her fiancé[]," who were committed to adopting her and were in the process of completing an adoption home study. Mya had been in their home since November 26, 2014, and she sought them out for nurturance and reassurance. They stated that they love Mya and that her wellbeing was their "first priority." They also said that "Mya is a family member and they may consider contact with the birth parents if it is in Mya's best interest."
In the report, the social worker mistakenly stated that Mya had been placed in the home of the aunt and her fiancé on July 24, 2015. At the subsequent section 366.26 hearing, counsel for the Agency corrected that date to November 26, 2014.
The Agency recommended that the parental rights of both parents be terminated so that Mya could be freed for adoption.
The section 366.26 hearing took place on April 26, 2016. The new social worker, who had been on the case for one month, testified that Mother visited with Mya once a week. He had supervised a visit during which Mother was appropriate and caring. She brought food and Mya was happy to see her. The social worker had heard no reports of anything negative about any of Mother's visits with Mya. Father was no longer living at Mother's home; he had called the social worker the previous week and given him a new address.
The adoption social worker testified that he had concluded Mya was adoptable due to "[h]er age, her relationship with the caregiver, her health, and her developmental state." She had been thriving with the current caregivers and there were no concerns about their ability to care for her. He had taken into account Mya's relationship with Mother, which was positive, but believed that "one hour a week is hardly any time to care for a child that age. Caring for a child is really more slower time; it needs more care than one hour a week."
Mother testified at the hearing, and described the quality of the visits she had with Mya: "We always play. I protect her and I take care of her and I show her different things." When asked if she acted like a parent during visits, she responded, "Always. I always act like her mother because I am her mother." Mother acknowledged that her visits with Mya had always been supervised.
At the conclusion of the section 366.26 hearing, the court stated that it could not find that it would be detrimental to Mya to terminate Mother's parental rights. The court therefore adopted the Agency's recommendations, found by clear and convincing evidence that it was likely that Mya would be adopted, and terminated the parental rights of Mother and Father.
On May 3, 2016, Mother filed a notice of appeal.
DISCUSSION
Mother contends the juvenile court's finding that she failed to establish the applicability of the beneficial parent-child relationship exception to adoption was not supported by substantial evidence.
When the court finds that a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds by clear and convincing evidence, pursuant to one of the statutorily-specified exceptions, "compelling reason[s] for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The parent has the burden of proving detriment under any of these exceptions. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).)
At issue here is the beneficial-parent child relationship exception, which applies if the juvenile court finds by clear and convincing evidence that 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).)
Appellate courts have differed on the correct standard of review for determining the applicability of a statutory exception to termination of parental rights. (Compare, e.g. In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [applying substantial evidence standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [applying abuse of discretion standard]; In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [applying substantial evidence standard to whether beneficial parent-child relationship exists and applying abuse of discretion standard to whether that relationship provides a compelling reason to apply exception].) Although the "practical differences" among these various standards of review "are not significant" (Jasmine D., at p. 1351), we believe that use of the hybrid standard of review, which incorporates both the substantial evidence and the abuse of discretion standards, is appropriate when reviewing juvenile court determinations regarding the statutory exceptions to adoption. (See In re J.C. (2014) 226 Cal.App.4th 503, 530-531; In re K.P., at pp. 621-622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
In the present case, the Agency does not dispute that Mother satisfied the first prong of section 366.26, subdivision (c)(1)(B)(i), in that she maintained consistent and positive visitation with Mya. The Agency does, however, dispute that Mother satisfied the second prong of section 366.26, subdivision (c)(1)(B)(i): that a continued relationship with Mother benefits Mya to such a degree that termination of parental rights would be detrimental to her.
In C.F., supra, 193 Cal.App.4th 549, the appellate court "interpreted the phrase 'benefit from continuing the relationship' in section 366.26, subdivision (c)(1)(B)(i) to refer to a 'parent-child' relationship 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 other words, the 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.' [Citation.]
"A parent must show more than frequent and loving contact or pleasant visits. [Citations.] 'Interaction between natural parent and child will always confer some incidental benefit to the child. . . .' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment between child and parent. [Citations.] Further, to establish the section 366.2, subdivision (c)(1)(B)(i) exception the parent must show the child would suffer detriment if his or her relationship with the parent were terminated. [Citation.]" (C.F., supra, 193 Cal.App.4th at p. 555, quoting Autumn H., supra, 27 Cal.App.4th at p. 575, fn. omitted.)
"Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) "Application of this exception is decided on [a] case-by-case basis and a court takes into account such factors as the minor's age, the portion of the minor's life spent in the parent's custody, whether interaction between parent and child is positive or negative, and the child's particular needs." (In re Scott B. (2010) 188 Cal.App.4th 452, 471 (Scott B.), citing Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Mother contends she does occupy a parental role in Mya's life. She notes that she visited with Mya as much as she was permitted, that the visits were positive and loving, and that Mya was always happy to see her. Mother argues that this evidence demonstrates that she has "an emotionally significant relationship" with Mya that is parental in nature, and that it would therefore be detrimental to Mya to terminate that relationship. (In re S.B. (2008) 164 Cal.App.4th 289, 298 (S.B.).) Mother also points out that, where a parent is not the child's primary caretaker, a child still may benefit from continuing the relationship even though the parent has not occupied a daily parental role in the child's life. (See id. at p. 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
The record reflects that Mya lived with Mother for only the first four and a half months of her life before she was placed with the aunt in November 2014. By the time of the section 366.26 hearing in April 2016, Mya, who was then 21 months old, had been out of Mother's custody for approximately 17 months. The evidence thus shows that while Mya enjoys a positive relationship with Mother, Mother has played only a limited role in her life. Indeed, Mother never progressed beyond supervised visits. (See Scott B., supra, 188 Cal.App.4th at p. 471; compare In re Brandon C., supra, 71 Cal.App.4th at pp. 1536-1538 [where Mother had consistently visited children for three years and grandmother/prospective adoptive parent was in ill health and believed children had a good relationship with parents that should continue, juvenile court did not abuse its discretion in ordering guardianship instead of adoption].)
The evidence further shows that Mya's primary bond is with her aunt and her aunt's fiancé, with whom she has lived for most of her life. They have made Mya their priority, providing her with stability, comfort, and care, which has enabled her to thrive. (See Scott B., supra, 188 Cal.App.4th at p. 471; compare In re Amber M. (2002) 103 Cal.App.4th 681, 689-690 [where (1) bonding study showed that children shared primary attachment with Mother, (2) CASA disagreed with Agency's adoption recommendation due to bond and love between mother and children, and (3) mother had done "virtually all that was asked of her to regain custody," court improperly terminated her parental rights].) While there is no doubt that Mya has gained "an incidental benefit" from her positive relationship with Mother, it is the aunt and her fiancé who occupy the parental role for this young child. (C.F., supra, 193 Cal.App.4th at p. 555.)
We do note that these prospective adoptive parents, who are relatives of Father, have expressed openness to Mya having contact with her birth parents if such contact is in her best interest.
This case is distinguishable from S.B., supra, 164 Cal.App.4th at pp. 298-299, cited by Mother, in which the appellate court found that while the child may not have had a primary parental relationship with the father, the evidence showed that she had lived with father for the first three years of her life and continued to display a strong attachment to him for the first year after removal. This evidence supported the conclusion the father had "continued the significant parent-child relationship despite the lack of day-to-day contact with [the child] after she was removed from his care."
In C.F., supra, 193 Cal.App.4th at pages 558-559, the same appellate court that decided S.B. "emphasize[d] that S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact." --------
In conclusion, the love Mother has for Mya and the enjoyment they both derived from their visits are apparent. Nonetheless, in light of the evidence set forth, ante, we conclude substantial evidence supports the juvenile court's determination that a beneficial parent-child relationship does not exist, pursuant to section 366.2, subdivision (c)(1)(B)(i). Nor has Mother shown that " 'severing the natural parent/child relationship would deprive [Mya] of a substantial, positive emotional attachment such that [Mya] would be greatly harmed . . . .' " (C.F., supra, 193 Cal.App.4th at p. 555.) Hence, the court did not abuse its discretion when it found that the relationship between Mother and Mya does not provide a compelling reason to apply the beneficial parent-child relationship exception to adoption. (See In re K.P., supra, 203 Cal.App.4th at pp. 621-622.) This is simply not the kind of "extraordinary case" in which "preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.