Opinion
H043855
02-23-2017
In re N.C., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. J.O., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. Nos. DP002900, DP002901)
I. INTRODUCTION
J.O. is the mother of the two children at issue in this juvenile dependency matter, in which the juvenile court terminated the mother's parental rights at a Welfare and Institutions Code section 366.26 selection and implementation hearing.
All further statutory references are to the Welfare and Institutions Code. --------
On appeal, the mother challenges the termination of her parental rights, contending the juvenile court erred by determining that the benefits of adoption outweighed the preservation of the beneficial relationship between herself and the children. (See § 366.26, subd. (c)(1)(B)(i).) For reasons that we will explain, we will affirm the juvenile court's orders.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Proceedings
This court previously reviewed the proceedings in this case, from the filing of the initial dependency petition through the termination of the mother's reunification services at the 12-month review hearing, in an opinion issued after the mother filed a petition for extraordinary writ. (J.O. v. Superior Court (May 17, 2016, H043392) [nonpub. opn.].) This court has taken judicial notice of the prior writ proceeding. We briefly set forth those facts.
On April 14, 2014, the Santa Cruz County Human Services Department (the Department) filed petitions under section 300, subdivisions (b) [failure to protect] and (g) [no provision for support], alleging that 22-month old N.C. and nine-month old I.C. came within the jurisdiction of the juvenile court. The petitions alleged that the father, J.C., was in jail, and that the mother's substance abuse had been impacting her ability to care for the children. The mother had been arrested on April 1, 2014, for child endangerment and driving under the influence. The children had been in the car. The mother had consumed beer and whiskey before driving with the children, and her car had "skidded across the road, spun around, and then was facing the wrong way on the road."
The children were placed with maternal relatives when the mother was taken to jail, but they were returned to the mother after her release.
At the jurisdiction and disposition hearing held on June 26, 2014, the juvenile court sustained the petitions and ordered the children to remain with the mother on family maintenance services. The mother's case plan included staying sober, participating in counseling, participating in parenting classes, finding safe housing, drug and alcohol testing, completing a drug and alcohol assessment, and participating in any recommended drug and alcohol services. The case plan required the mother to not live with the maternal grandmother.
At the six-month review hearing held on December 18, 2014, the juvenile court ordered continued family maintenance services for the mother. There had been no new incidents of child abuse or neglect, but the mother had participated in counseling inconsistently, had not started a parenting class, was still living with the maternal grandmother, had not followed through with her referral to outpatient treatment, and had not done any drug testing.
On April 14, 2015, the juvenile court sustained a section 387 petition filed by the Department after the children had been found home alone, with the house in disarray following a fight, and with vodka and marijuana within the children's reach. The juvenile court ordered the children removed from the mother's care and ordered family reunification services, including supervised visitation for the mother.
At the six-month review hearing held on September 8, 2015, the juvenile court continued reunification services for the mother, who had pending criminal charges but who had completed an outpatient intake and had been visiting with the children regularly. The children were two and three years old, and they had been living with the paternal great aunt.
At the contested 12-month review hearing held on March 25, 2016, the juvenile court found that returning the children to the mother's physical custody would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. The juvenile court also found no substantial probability of return if reunification services were extended to 18 months. The juvenile court set a section 366.26 selection and implementation hearing for June 28, 2016.
The mother filed a petition for extraordinary writ, contending the juvenile court should have granted her "more time to show" that she "can maintain and sustain" sobriety and provide for her children. This court denied the mother's petition.
B. Section 366.26 Report
The Department filed a section 366.26 report on June 28, 2016, recommending adoption as the permanent plan for both children.
The children remained placed with a paternal relative who was "committed to providing them with a forever home." The children both appeared to be happy in the home and were "attached to their prospective adoptive parents."
The report reviewed the mother's supervised visitation with the children since February 2015. Initially, the mother had "challenges tending to her children's needs." During visits, she would put on make-up, use her phone, argue with the supervisor, speak harshly to the children, and verbalize her dislike of changing the children's diapers. However, the mother was able to work through those issues and take direction from the supervisor during subsequent visits. She began to play with the children, lower her voice when the children were fighting, and model positive behaviors. This led to visits being held at a park, where some safety concerns arose because I.C. would sometimes wander off.
During visits in October 2015, the mother was attentive to the children, engaged them in play, changed their diapers, provided them with snacks, and made sure they held her hands when walking to and from the car. Visits were then moved to the Capitola Mall, where the mother "continued to show an ability to meet the needs of both children." In November 2015, the mother's visits were moved to "loosely supervised."
Visits in January 2016 went well, including a visit during which the mother safely rode with both children on the bus to the Capitola Mall. However, in February 2016, the mother smelled of alcohol during a visit, and in April 2016, the mother failed to show up for two visits.
In the section 366.26 report, the social worker noted that the mother had a supervised visit with the children on May 3, 2015, at a park. The mother brought snacks and gifts for the children, gave both of the children attention, and kept them close to her at all times.
The social worker opined that the mother had made "progress with her parenting and ability to supervise her children" but pointed out that the mother had not provided for the children's daily needs and had not demonstrated she could remain sober. The social worker described the mother's relationship with the children as a "visiting relationship" and opined that it would not be detrimental to the children if the mother's parental rights were terminated.
On June 28, 2016, the juvenile court set the matter for a contested hearing on August 3, 2016.
C. The Mother's Section 388 Petition
On July 18, 2016, the mother filed a section 388 petition, asking the juvenile court to reinstitute reunification services. The mother asserted she had continued to work on the problems leading to the dependency. She had pursued enrollment in an "intense outpatient treatment program" and was on a wait list. She had been attending AA meetings and working with her sponsor. She was working full time. She believed it was in her children's best interest to reunify, because they missed her and were attached to her.
The juvenile court denied the mother's section 388 petition without a hearing, finding that the mother did not state new evidence or a change of circumstances and that a change in the order was not in the children's best interest.
D. Testimony and Arguments at the Section 366 .26 Hearing
The juvenile court held a selection and implementation hearing on August 3, 2016. N.C. was three years old and I.C. was four years old at the time of the hearing.
The mother testified about her visits with the children. She would read with them, draw with them, play with them, and talk to them. Both children called her "mom." The children knew that she was their mother. They ran to her, asked her to hold them, and expressed that they missed her. At the end of visits, the children wanted to come with her or asked her to come visit them.
The mother understood that the children were being given "what they need" by the foster parents, but the mother had previously taken care of the children by herself and wanted the children back with her.
Counsel for the Department argued that although the mother had consistently visited the children, the benefit of continuing the relationship did not outweigh the benefits of adoption. The Department acknowledged that there was "some strength to the relationship" between the mother and N.C., the older child, who had spent more time in the mother's care than I.C. The Department did not believe there was any parent-child relationship between the mother and I.C.
The Department believed that it would be harmful to both children if they were not adopted. The Department noted that the mother had not been cooperative with the children's transition to the foster parents, pointing to visitation logs in which the mother was quoted as saying that she was going to see the children "all the time" and that she did not care "what's good for them." The Department believed that the children both needed a permanent placement where the foster parents did not have to worry about the mother's "interference."
Counsel for the children agreed with counsel for the Department's characterization of the relationships between the children and the mother. He agreed that N.C. still had "some connection" with the mother but that I.C. "never had a chance" to develop a close relationship with her. Counsel for the children also agreed that the relationship between N.C. and the mother did not outweigh "the stability and best interest" of the children in being in a permanent adoptive home.
The mother argued that the beneficial parent-child exception applied. She asserted that the visitation logs reflected she was "a very appropriate, caring mother who keeps her children safe in all situations" and contained "abundant information" showing that her visits with the children had a positive effect on the children. She referenced a May 2016 visit, as to which the children had expressed happiness about "going to see their mommy" and had appeared happy to be with the mother. She noted that the children and the mother "give each other hugs and kisses."
The mother asserted that the children had spent significant time in her care and that even if the children no longer had a "primary attachment" to her, they did have a "substantial, positive, and emotional" attachment to her, such that termination of the relationship would be detrimental to them.
E. Juvenile Court's Findings
The juvenile court acknowledged that the mother's visits showed that she was loving towards the children and that the mother had consistently visited with the children. However, the juvenile court found that the mother had not shown that the benefit of the children maintaining a relationship with the mother outweighed the benefit of adoption. The juvenile court expressed concern about the mother's lack of engagement in services, her ongoing substance abuse issues, and her anger management issues. The juvenile court found that the mother's relationship with the children was detrimental to the children, citing the evidence of the mother's intoxication at a visit and the mother's comments about how she was "going to do what she wants to do."
The juvenile court terminated parental rights and selected adoption as the children's permanent plan. The mother has now appealed from those orders.
III. DISCUSSION
The mother contends the juvenile court erred by determining that the benefits of adoption outweighed the preservation of the beneficial relationship between herself and the child.
A. Legal Background
The California Supreme Court has stated that "[t]he objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) "When the child is removed from the home, the court first attempts, for a specified period of time, to reunify the family. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) Where reunification efforts have failed, " 'the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan. [Citation.]' " (Ibid.)
"The court has four choices at the permanency planning hearing. In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption . . . ; (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).)" (Celine R., supra, 31 Cal.4th at p. 53.) "When the juvenile court finds that the child is adoptable, it must terminate parental rights unless it finds one of four specified circumstances in which termination would be detrimental (§ 366.26, subd. (c)(1)(A)-(D))." (In re Brittany C. (1999) 76 Cal.App.4th 847, 852 (Brittany C.).) "The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (Celine R., supra, at p. 53.)
The parent/child relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). Under that statutory provision, parental rights cannot be terminated where the juvenile court "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).) The requirement of benefit from continuing the relationship means that "the 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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
B. Standard of Review
This court has determined that there is a two-part standard of review for a juvenile court's ruling regarding the application of the parent/child relationship exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).)
First, "[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. Thus, . . . a challenge to a juvenile court's finding that there is no beneficial relationship amounts to a contention that the 'undisputed facts lead to only one conclusion.' [Citation.] Unless the undisputed facts established the existence of a beneficial parental . . . relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed." (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
"The other component of . . . the parental relationship exception . . . is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile 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. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Bailey J., supra, 189 Cal.App.4th at p. 1315; accord, In re C.B. (2010) 190 Cal.App.4th 102, 123.)
C. Analysis
As noted above, under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be terminated where the juvenile court "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."
Here, the juvenile court did not make a finding as to whether the mother had met her burden of showing a beneficial relationship, i.e., the first component of the exception. The juvenile court made findings only as to the second component: whether the mother had shown that the benefit of maintaining a relationship with the children outweighed the benefits of adoption. We will therefore review the juvenile court's findings as to the second component only.
The mother contends that "her relationship with the girls is of such value that it should be saved." She points to evidence showing her parental relationship with the children during visits, such as when she held the children's hands while walking them to and from the car, engaged the children in play, fed the children, changed their diapers, and safely brought the children on a bus ride to a mall. The mother also points to her own testimony at the selection and implementation hearing, in which she asserted that the children still considered her their mother, said they miss her, and said they want her to hold them. Finally, the mother points out that she cared for the children for a "significant period of time on her own."
The Department contends there was no evidence that the children would be "greatly harmed" by terminating the mother's parental rights, and thus that the juvenile court did not abuse its discretion by finding that the benefits of continuing the relationship did not outweigh the benefits of adoption. (See Autumn H., supra, 27 Cal.App.4th at p. 575; see also Brittany C., supra, 76 Cal.App.4th at p. 853 [a parent must show "great" harm, not merely "some" harm, from termination of the parent-child relationship].)
After a careful review of the record, we agree with the Department and the position taken by counsel for the children at the section 366.26 hearing: that the juvenile court could reasonably find the benefits of the relationship between the mother and the children did not outweigh the benefits of adoption. The record shows the mother loved the children and that her visits with the children were loving and mostly positive. However, the record does not indicate that "great" harm would result from the termination of parental rights. (See Brittany C., supra, 76 Cal.App.4th at p. 853.) The children had each spent nearly half of their lives out of the mother's custody. The visitation logs do not show that the children experienced any emotional detriment when separating from the mother at the end of visits. The children were "attached to their prospective adoptive parents." The social worker described the mother's relationship with the children as a "visiting relationship" and opined that it would not be detrimental to the children if the mother's parental rights were terminated. (Compare In re Amber M. (2002) 103 Cal.App.4th 681, 690 [oldest child shared " 'a primary attachment' " to the mother, middle child had difficulty separating from the mother, youngest child was "very strongly attached" to the mother, and bonding study found possible detriment from severance of oldest child's relationship with the mother].)
In placing great weight on the benefit of permanency, the juvenile court acted in accord with the well-established legislative preference for adoption over less permanent placements, such as guardianship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) "The Legislature has decreed . . . that guardianship is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (Ibid.)
We reiterate that the record shows the mother clearly loves her children and that the children enjoyed their visits with the mother. However, after a close review of the facts of this case, the juvenile court did not abuse its discretion by determining that any detrimental impact of terminating the parent-child relationship did not outweigh the benefit to the children of adoption. (See Bailey J., supra, 189 Cal.App.4th at p. 1315.)
IV. DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.