Opinion
2d Juv. B327228
11-15-2023
In re M.H., a Person Coming Under the Juvenile Court Law. v. D.H., Defendant and Appellant. SANTA BARBARA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant D.H. Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Senior Deputy County Counsel, for Plaintiff and Respondent Santa Barbara County Department of Social Services.
NOT TO BE PUBLISHED
Gustavo E. Lavayen, Judge Superior Court County of Santa Barbara (Super. Ct. No. 21JV00122) (Santa Barbara County)
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant D.H.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein, Senior Deputy County Counsel, for Plaintiff and Respondent Santa Barbara County Department of Social Services.
CODY, J.
D.H. (mother) appeals the juvenile court's order terminating parental rights to her daughter, M.H. (Welf. &Inst. Code, § 366.26.) She contends the court erred when it found the parental-benefit exception did not apply. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
Santa Barbara County Child Welfare Services (CWS) detained then-four-year-old M.H. in March of 2021 because of mother's documented struggles with substance abuse and domestic violence. The juvenile court declared M.H. a dependent of the court and placed her with a licensed resource family. CWS recommended bypassing reunification services. The parties settled at the jurisdiction and disposition hearing. CWS agreed to strike certain allegations in its section 300 petition and to provide visitation pending the section 366.26 hearing. Mother agreed to waive her rights. The court did not order reunification services.
CWS initially recommended terminating parental rights and selecting adoption. Mother opposed the recommendation and requested the juvenile court change the previous order bypassing reunification services (§ 388). She cited her strong bond with M.H., her post-detention progress in substance abuse programs, and CWS's inability to find a permanent home for M.H. The juvenile court granted mother's request and set a twelve-month review hearing for March of 2022. Mother continued to progress and began visiting M.H. without supervision. As a result, she received an additional six months of reunification services at the twelve-month review.
Mother then relapsed. She missed mandatory drug tests, twelve-step meetings, and domestic violence therapy sessions. The shelter where mother lived "exited" her for violating curfew and visitor rules. CWS reimposed supervision requirements during her visits with M.H. At the eighteen-month review hearing, CWS again recommended terminating services. Mother agreed to submit on the issue in exchange for additional supervised visitation. CWS's section 366.26 report recommended terminating her parental rights and selecting a permanent plan of adoption. Mother submitted an offer of proof requesting a hearing to contest termination pursuant to the parental-benefit exception. (§ 366.26, subd. (c)(1)(B)(i).)
The juvenile court held the contested hearing in March of 2023. The parties stipulated M.H. was adoptable. After taking evidence, the juvenile court found M.H. was likely to be adopted and that mother had not proven the parental-benefit exception applied. It terminated her parental rights.
DISCUSSION
The Parental-Benefit Exception
Mother contends the juvenile court erred in finding the parental-benefit exception to adoption did not apply. She requests we reverse and vacate the order terminating parental rights and direct the juvenile court to enter a permanent plan other than adoption, such as legal guardianship. We affirm.
"'"At a permanency plan hearing, the [juvenile] court may order one of three alternatives: adoption, guardianship or longterm foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans." [Citation.]'" (In re Katherine J. (2022) 75 Cal.App.5th 303, 316, quoting In re B.D. (2021) 66 Cal.App.5th 1218, 1224.) If the juvenile court finds the child adoptable it must terminate parental rights unless one of six statutory exceptions applies. (§ 366.26, subd. (c)(1)(B).) The parental-benefit exception is among these. It allows the court to consider a plan other than adoption if it "finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he 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).)
A parent invoking the exception must establish three elements by a preponderance of the evidence: (1) "regular visitation and contact" between the parent and child; (2) "a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (In re Caden C. (2021) 11 Cal.5th 614, 636 (Caden C.).) The focus of the inquiry is the child's best interests. (Id. at p. 632.) We review the first two elements of the exception for substantial evidence and the third element for abuse of discretion. (Id. at pp. 639-641.)
Regular Visitation and Contact with the Child
CWS conceded that mother maintained regular visitation and contact with M.H. We need not address this issue.
Substantial, Positive, Emotional Attachment to the Parent
Courts consider "a slew of factors" when deciding whether a child would benefit from continuing a relationship with their parent. (Caden C., supra, 11 Cal.5th at p. 632.) These include such things as "'[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Ibid., quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents." (Ibid.) "Doing so properly focuses the inquiry on the child, even as courts must remain mindful that rarely do '[p]arent-child relationships' conform to an entirely consistent pattern." (Ibid., quoting In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) "'To overcome the preference for adoption and avoid termination of the natural parent's [parental] rights, the parent must show 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.'" (In re G.H. (2022) 84 Cal.App.5th 15, 25, quoting In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "Friendly or affectionate visits are not enough." (Ibid.)
Five witnesses testified at the contested section 366.26 hearing about mother's relationship with M.H. Mother's briefing focuses on two of these witnesses: Sally Hankins, M.H.'s Court Appointed Special Advocate (CASA); and David Stevens, the social worker assigned to M.H.'s case. Hankins served as M.H's CASA since March of 2021. She spent over 300 hours with M.H. and observed her and mother interact during that time. Hankins believed legal guardianship would be in M.H.'s best interest because it would allow her to maintain a "strong bond" with mother while living in a stable, permanent home. Social worker Stevens, however, believed the bond was more akin to a friendship than a parent-child relationship. He acknowledged M.H. loved mother deeply but he viewed their bond as "unhealthy." Stevens expressed concern that mother continued to expose herself to domestic violence and believed the instability in her life would be detrimental to M.H.
Mother describes Hankins's testimony as "overwhelming evidence" that M.H. "had a very strong bond with her mother and [that] it would benefit her to maintain that connection and visitation." She contends the juvenile court erred by instead relying on Stevens's testimony, which she describes as "neither reasonable, credible, or of solid value." Mother notes Stevens was assigned to the case only three months before the hearing and, in contrast to Hankins, had "minimal observations" of mother's visits with M.H. She contends his opinions are further undermined by his failure to consult with M.H.'s therapist which she argues "was extremely important, if not pivotal information that was readily available." Finally, she argues the court inappropriately compared M.H.'s relationships with her resource family and her mother. (See In re S.B. (2008) 164 Cal.App.4th 289, 299 [parent-benefit exception does not require showing the child has a "'primary attachment'" to the parent rather than other caregivers].) We disagree with all of mother's contentions.
Stevens's short tenure on M.H.'s case did not preclude the juvenile court from finding his testimony credible. He testified knowledgeably about M.H.'s case history and referred frequently to service logs and case notes prepared by his predecessors. He conducted four home visits with M.H.'s resource family, observed three exchanges with mother, and observed an hour-long visit between M.H. and mother only weeks before the contested hearing in March of 2023. Stevens discussed the adoption process with M.H. in age-appropriate terms on three occasions. He participated in a Child Family Team Meeting in January of 2023 with Hankins, the resource mother, and M.H.'s longtime therapist at which they discussed, among other things, Hankins's legal guardianship recommendation. Further, Stevens's description of mother as a "loving playmate" was echoed by Brenda Romo, the case aid who attended mother's visits for the first 18 months of M.H.'s detention.
We decline to speculate whether additional input from M.H's therapist would have supported the application of the parental-benefit exception. She raised no concern regarding the proposed plan of adoption at the Child Family Team Meeting. Mother could have called the therapist as a witness at the contested hearing, but did not. It was not CWS's responsibility to elicit evidence on mother's behalf. (See In re J.D. (2021) 70 Cal.App.5th 833, 861 ["[I]t was not the agency's burden to disprove the existence of the beneficial relationship exception- the burden of proof on this issue was squarely on mother"].)
The juvenile court appropriately compared M.H.'s relationships with her mother and resource family. Determining whether M.H. would benefit from continuing her relationship with mother required the court to consider how that relationship would affect M.H. going forward. (See In re B.D. (2021) 66 Cal.App.5th 1218, 1230 ["A positive attachment between parent and child is necessarily one that . . . provides the child with a sense of security and stability"].) Mother's potential disruption of M.H.'s developing bond with her resource family was directly related to this inquiry. "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Detriment to the Child
"When [the juvenile court] weighs whether termination would be detrimental, . . . the question is just whether losing the relationship with the parent would harm the child to an extent not outweighed, on balance, by the security of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 634.) "[T]he court faces the complex task of disentangling the consequences of removing those burdens along with the benefits of the relationship." (Ibid.) Mother contends the juvenile court "made no attempt" to perform this disentangling. She argues again that the court improperly compared mother to M.H.'s resource family, particularly by highlighting mother's ongoing struggle with domestic violence. We conclude otherwise.
"A parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the exception." (Caden C., supra, 11 Cal.5th at p. 637.) Such issues, however, "could be directly relevant to a juvenile court's analysis in deciding whether termination would be detrimental." (Id. at p. 639.) They were relevant here. Mother's most recent domestic violence incident occurred only two weeks before the contested hearing. The court explained its concern as follows: "If the mother is engaging in ongoing conduct, specifically domestic violence conduct, the mother may or may not be there for the child, may not be in a position to continue a relationship with the child, which is further detrimental to the minor here. So that's certainly not an option. I think that while that can occur, if it were to occur, I think it would probably hurt [M.H.] more than help her."
The juvenile court did not view mother's domestic violence issue as a categorical bar to applying the exception. Rather, it was among several factors the court used to determine whether M.H. "would benefit from continuing a strong, positive, and affirming relationship, and [whether] it would be destabilizing to lose that relationship." (Caden C., supra, 11 Cal.5th at p. 634.) This included the fact that M.H. did not cry or display other "detrimental behavioral aspects" when the supervised visits with mother ended. It was well within the court's discretion to consider how future instances of domestic violence in mother's life might destabilize M.H.'s burgeoning relationship with the family who would serve as her permanent caregivers.
DISPOSITION
The judgment (order terminating parental rights and selecting adoption as the permanent plan) is affirmed.
We concur: GILBERT, P. J. YEGAN, J.