Opinion
H044595
03-15-2018
In re J.B., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. T.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-15-JD023209)
In this dependency action, mother appeals from the juvenile court's order terminating her parental rights and ordering a permanent plan of adoption. She argues that she established the beneficial relationship exception to adoption and that the juvenile court erred by implicitly finding inapplicable the relative caregiver exception to adoption. Finding no error, we will affirm.
I. BACKGROUND
J.B. was born in October 2014. His older half-brother had been a dependent of the juvenile court due to mother's persistent substance abuse, and that proceeding concluded in 2015 with a paternal relative becoming legal guardian for the 13-year-old. Mother agreed to informal supervision services to address substance abuse when she was pregnant with J.B., but a dependency petition was filed six months after his birth because mother continued to use methamphetamine despite substance abuse treatment. In June 2015, J.B. was declared a dependent of the court based on sustained allegations that mother was unable to protect him as a result of her substance abuse and unstable mental health. J.B. was removed from mother's care and placed in the licensed foster home of a man who, having served as a court appointed special advocate for the half-brother, had known J.B. since birth.
Mother successfully completed a five-week residential treatment program for substance abuse in August 2015. She moved to transitional housing and participated in unsupervised visits with J.B. at a friend's home. Except for one acknowledged relapse, as of December 2015 mother had maintained her sobriety. She had moved into the home of her friend, where she had unsupervised overnight visits with J.B., and later extended overnight visits. J.B. was returned to mother's care with family maintenance services at the six-month review hearing in December 2015. But nine days later mother placed J.B. in respite care with the foster father because she had lost her housing. She had also relapsed, and was arrested twice in early 2016 for possessing and being under the influence of methamphetamine.
The social worker filed a supplemental petition under Welfare and Institutions Code section 387 to have J.B. removed from mother's custody, and mother signed a voluntary agreement returning J.B. to foster care. The supplemental petition was sustained in March 2016, and the court ordered that J.B. remain in foster care and mother receive additional family reunification services. Mother continued to struggle with her sobriety and homelessness. Although she denied drug use, over the next few months several of her drug tests showed diluted or abnormal urine samples, and twice she tested positive for methamphetamine. Mother continued supervised visits with J.B. two times per week, and the social worker allowed unsupervised visits when mother's drug tests were negative.
An arrest warrant issued for mother when she failed to appear at a hearing in her criminal cases in August 2016. Mother told the social worker that she would not be attending the 12-month review hearing because of the outstanding warrant; she anticipated serving six months in jail and needed some time before turning herself in. In mother's absence, the 12-month review was submitted on the social worker's report documenting mother's continued drug use. Family reunification services were terminated, and the matter was set for a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for J.B. (Further statutory references and undesignated subdivisions are to Welfare and Institutions Code section 366.26.) Supervised visits continued until mother was arrested in late October 2016.
Soon after mother's arrest, J.B. was placed with a confidential foster mother who had met J.B. while serving as a respite provider for the foster father. She had an approved adoption home study and was committed to the permanent plan of adoption. Mother enrolled in a parenting class which facilitated visits while she was in custody. Starting in late December, J.B. was transported to the jail for weekly visits with mother. Mother continued semi-weekly visit with J.B. in supervised settings after her release in March 2017.
A contested hearing under section 366.26 was held in April 2017. The social worker's reports were admitted in evidence, and the court heard testimony from mother, the foster father, and the social worker. Mother did not contest J.B.'s adoptability under section 366.26, subdivision (c)(1), but she asserted that the beneficial relationship exception to adoption applied (§ 366.26, subd. (c)(1)(B)), and requested that a legal guardianship be established. The juvenile court found that mother's relationship with J.B. at the time did not "rise[] to the level of the parental role that the courts and the [L]egislature envision," and that terminating mother's parental rights would not be detrimental to J.B. Agreeing with J.B. and respondent, the juvenile court concluded that the relationship formed between J.B. and mother did not outweigh or overcome the need for permanency. The court terminated mother's parental rights, and ordered adoption as a permanent placement plan under section 366.26, subdivision (b)(1). This appeal followed.
The parental rights of the alleged father (the man identified by mother as J.B.'s biological father) were also terminated.
II. DISCUSSION
A. BENEFICIAL RELATIONSHIP EXCEPTION
After reunification services are terminated, the juvenile court "shall terminate parental rights and order the child placed for adoption" if it determines by clear and convincing evidence that the child likely will be adopted. (§ 366.26, subd. (c)(1); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 ["Adoption, where possible, is the permanent plan preferred by the Legislature"].) An exception to adoption exists when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because a parent has "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 proponent of the exception must show that "the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination," and that the parental relationship " ' "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 Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
This court has elucidated a two-pronged standard of review applicable to the beneficial relationship exception. The existence of a beneficial parental relationship is a factual component of the exception (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314), and the proponent of a failure of proof challenge must show that "the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Finding a compelling reason to apply the exception is a discretionary decision "which calls on the trial court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (In re Bailey J., at p. 1315.)
The juvenile court noted during summation that it would not be deciding the case "on visitation"; it is unclear whether, in pronouncing its ruling, the recognition of an "attachment and a real relationship" between J.B. and mother was a finding of the existence of a beneficial parental relationship. We will assume for purposes of this appeal that mother has established the factual components of the beneficial relationship exception, and we will limit our review to whether, under subdivision (c)(1)(B), the juvenile court abused its discretion in determining that J.B.'s relationship with mother did not provide a compelling reason to apply the exception.
Mother argues that significant benefits inured to J.B. from their relationship so that its termination would be detrimental, pointing to J.B. calling her "mama" (and therefore not viewing his caretaker as his mother) and his crying at the end of their visits. But mother has not demonstrated that the relationship is a compelling reason to forego adoption. Indeed, mother presents no evidence showing how severing the relationship would be detrimental to J.B., particularly when weighed against the benefit to J.B. of a permanent home.
J.B. was removed from mother's care after only eight months, he had no particular needs that only mother could meet, and his needs were being fully met by a prospective adoptive parent. The social worker reported that J.B. "has a strong bond with his confidential foster mother and her family. He recognizes her as his caregiver and he goes to her for his needs. All of his physical, psychological, social, emotional, and daily needs are being met in his placement. [J.B.] is settled into his routine and structure in the home and has thrived. [J.B.] is able to have stability, permanency, and a consistent parental figure in his life. The confidential foster parent is committed to the permanent plan of adoption and is ready to be an adoptive placement." Even though J.B. had regular visits with mother which were always positive, the juvenile court's determination that the relationship did not overcome the benefit of a permanent parent, on this record, was not an abuse of discretion.
Mother argues that there was scant evidence that J.B. would benefit from adoption, given that the foster father with whom J.B. had initially been placed was also able to provide J.B. with a secure stable home, and that the social worker had identified a legal guardianship by the foster father as "a concurrent plan and the most appropriate permanent plan" because it would allow J.B. to be co-parented by mother. While the social worker's reports prepared for the March and August 2016 hearings had identified a legal guardianship by the foster father as the "concurrent planning goal," that guardianship was not characterized as "the most appropriate permanent plan," as mother asserts. The social worker testified that the foster father had been approached about adoption after reunification services were terminated, but the foster father was unwilling to offer permanency. J.B. was then placed with a confidential foster parent who was committed to the permanent plan of adoption. The social worker further explained that the benefits of an adoption—permanent parents to meet J.B.'s social, psychological and day-to-day needs—outweighed the benefits of a guardianship which would allow J.B. to continue visits with mother for the duration of his minority. The foster father also testified that he had initially been willing to serve as J.B.'s guardian "if [mother] needed some additional time, [a] year or two, whatever it took to get her situation corrected," but that adopting an infant at his age (approaching 70) would not be right.
B. THE RELATIVE CAREGIVER EXCEPTION
The Legislature has provided an exception to the termination of parental rights when "[t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A).)
Mother asks us to decide the legal question whether a non-relative extended family member (NREFM) should be included as a relative under this exception. We agree with respondent that the issue is not properly before this court. Mother has the burden of establishing exceptions to adoption under subdivision (c)(1) (In re I.W., supra, 180 Cal.App.4th at p. 1527), and she failed to advance the relative caregiver exception to the juvenile court. The juvenile court was therefore not presented with the issue and has committed no error by failing to address the exception.
Even if mother had raised the exception, it would be unnecessary for us to reach the legal question she poses because she has not demonstrated that the exception otherwise applies here. Specifically, mother has failed to establish that that the foster father is a NREFM or that he is willing to provide J.B. with a permanent home through legal guardianship. Although the social worker's reports at times referred to J.B.'s placement with the foster father as an NREFM placement, the social worker offered undisputed testimony that the foster father's relationship with J.B. was not that of an NREFM. And the foster father testified that he could not offer a permanent, adoptive home for J.B. because of his advanced age.
The social worker explained that the foster father had a NREFM relationship with J.B's sibling, but that relationship did not extend to J.B., and J.B.'s placement with the foster father was a foster placement, not a NREFM placement. --------
III. DISPOSITION
The order is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Premo, Acting P. J. /s/_________ Greenwood, J.