Opinion
2d Juv. No. B297998 C/w B301155
05-01-2020
In re E.W. et al., Persons Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES Plaintiff and Respondent, v. S.W., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal for Defendant and Appellant. Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5. (Super. Ct. Nos. 18JV00081 & 18JV00082)
(Santa Barbara County)
S.W., the biological mother of two boys, E.W. and C.W., appeals a juvenile court order terminating her parental rights (Welf. & Inst. Code, § 366.26), entered after the trial court found that the beneficial parent-child relationship exception did not apply (§ 366.26, subd. (c)(1)(B)(i)). We affirm.
All statutory references are to the Welfare & Institutions Code unless otherwise stated.
Facts and Procedural History
On February 16, 2018, 16-month-old C.W. was admitted to the Cottage Hospital Pediatric Intensive Care Unit for Carbamazepine poisoning, a drug used to treat bipolar disorder. The pills belonged to appellant's boyfriend, Peter A., and were left next to the couch where appellant and C.W. slept. Two weeks earlier, appellant obtained a criminal protective order against Peter based on his domestic violence. Peter, however, showed up at the hospital with appellant to visit C.W. and threatened hospital staff. Hospital staff asked him to leave and called security.
Santa Barbara County Child Welfare Services (CWS) filed a dependency petition for failure to protect and no provision for support. (§ 300, subds. (b)(1) & (g).) The petition stated that appellant had been arrested for child abuse likely to cause great bodily injury or death and resisting arrest. (Pen. Code, §§ 273a, subd. (a)), 148, subd. (a)(1).) Appellant suffered from cognitive delay problems, unaddressed mental issues, and had a history of domestic violence. There were prior referrals for neglect, emotional abuse, and failure to provide for the children. Little had changed. Appellant's house had trash, dog feces, urine, and pills on the floor, along with used diapers, used women's hygiene products and a moldy baby bottle in the baby crib. The boys were being treated for speech delays and failure to thrive. Their pediatrician reported that appellant was not following the case plan and was either cognitively delayed or under the influence when she brought the boys to the office.
The trial court sustained the petition, ordering reunification services and supervised visits. At the six month review hearing, CWS reported that appellant was not following the case plan and still seeing Peter. Appellant was six months pregnant with his child (a pregnancy conceived by rape) and claimed that Peter manipulated her into marrying him. "'I never intended on being with him, I didn't even like him, especially when I found out he [Peter] was schizophrenic.'" It was a concern and endangered the children. Peter had a lengthy criminal history that included domestic violence, multiple batteries, assault with a deadly weapon, terrorist threats, resisting arrest, a drug related DUI, vandalism, and probation violations. Appellant lacked insight on how to keep the children safe, was not implementing effective parenting skills, and lied to her therapist about her on-going relationship with Peter.
The trial court terminated services and set the matter for a permanent placement hearing. (§ 366.26.) CWS identified the paternal uncle and his partner as prospective adoptive parents.
On the eve of the section 366.26 hearing, appellant filed a section 388 petition to reinstate services and reunite with the children. CWS opposed the petition on the ground that appellant could not safely parent the children and had to moved to Canada. Appellant said that her marriage with Peter was annulled but claimed the paperwork was delayed. Appellant had purchased two books on parenting and said she was "100 percent improved" as a parent. Appellant was "self-learning" to avoid domestic violence relationships but had not seen a therapist in the last six months or attended parenting classes after services were terminated. CWS reported that appellant struggled to manage the children and the children were, at times, reluctant to visit appellant and did not ask about appellant.
The trial court denied the section 388 petition and terminated parental rights, freeing the boys for adoption. (§ 366.26.)
Appellant appealed from the section 388 order denying her petition to reinstate services and reunify with the children, but has abandoned the appeal. (B297998.) --------
Beneficial Parent-Child Relationship
Appellant argues that the trial court erred in finding that the parent-child beneficial relationship exception to adoption did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We review for substantial evidence on whether a beneficial relationship exists, and for abuse of discretion on whether the relationship is so important that it trumps adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.) To establish the parent-child beneficial relationship exception, appellant must show she maintained regular contact and visitation, and the children will benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is a two prong test. "'The exception applies only where the [trial] court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.' [Citation.]" (In re Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.) Because a parent's claim to such an exception is evaluated in light of the Legislature's preference for adoption, it is only in exceptional cases that a court will chose a permanent plan other than adoption. (In re Scott B. (2010) 188 Cal.App.4th 452, 469.)
Although appellant met the visitation prong, the evidence shows that the parent-child relationship is qualitatively insufficient to outweigh the benefits of adoption. (See, e.g., In re J.C., supra, 226 Cal.App.4th at p. 532.) "Satisfying the second prong requires the parent to prove that 'severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] . . . .' [Citation.] Evidence that the parent has maintained '"frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
The trial court found that appellant's relationship "appears to be more like a friendly visitor relationship . . . , play dates with a loving adult, who frequently brings new toys to the visits." There was no credible evidence that the boys enjoyed the visits, were upset when appellant said goodbye, or asked about appellant between visits. Social workers monitored the visits and reported that appellant did not exert parental control and struggled to manage the children. The boys were attached to their caregivers and to the uncle. No social worker, therapist, or caregiver reported that severing the parent-child relationship would be detrimental to the boys. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.) Appellant's bonding expert, Alfredo Crespo, Ph.D., conceded that severing the relationship would only have a short-term impact, due to the lack of contact between the boys and appellant for more than a year. Dr. Crespo's testimony, however, was tainted by the fact that appellant lied to him about her relationship with Peter. Appellant told the doctor that she had no contact with Peter since "last September [2018] . . . when I had the insights . . . into his illness, for one; he is a schizophrenic with severe mental illness . . . ."
Appellant asks that we reweigh the evidence and substitute our judgment for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) That is not our function. The question is not whether the trial court could have found that the beneficial parental relationship applied, but whether it abused its discretion in finding otherwise. Once reunification efforts have been found unsuccessful, the state has a compelling interest in providing stable homes for children who have been removed from parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) A parent's failure to reunify with his or her child is strong evidence that continuing the parent-child relationship would not be beneficial. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1302-1304.) Appellant compounded the parenting problem by not following the case plan, reuniting with Peter, marrying him after he raped and impregnated her, and then lying about seeing Peter. Family members warned appellant that Peter was "'a psychopathic schizophrenic.'"
Based on the boys' age and needs, the trial court reasonably concluded that the boys' long-term emotional and developmental interests would be better served by the permanency of adoption. It was a "'quintessentially'" discretionary decision but not a close call. (In re Bailey J., supra, 189 Cal.App.4th at p. 1315.) "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
The judgment (order terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
TANGEMAN, J.
Jean M. Dandona, Judge
Superior Court County of Santa Barbara
Megan Turkat Schirn, under appointment by the Court of Appeal for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy Counsel for Plaintiff and Respondent.