Opinion
F077348
11-09-2018
In re ADDISON K., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. AMANDA H. et al., Defendants and Appellants.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant Amanda H. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant Steven K. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 517485)
OPINION
THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant Amanda H. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant Steven K. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Poochigian, J. and Snauffer, J.
-ooOoo-
Appellant Amanda H. appeals from the juvenile court's orders terminating her parental rights as to her now two-year-old daughter, Addison K., under Welfare and Institutions Code section 366.26. Pursuant to California Rules of Court, rule 8.200(a)(5), Steven K., Addison's father, joins and adopts by reference the argument made by Amanda in her appeal of the same order. He contends that if this court reverses the termination of Amanda's parental rights, we must also reverse the termination of his own. Amanda argues the juvenile court erred by failing to find the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) applied to her. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL SUMMARY
Newborn Addison was removed from the custody of her parents by the Stanislaus County Community Services Agency (agency) in January 2016 after she and Amanda tested positive for methamphetamine. The parents have lengthy histories of drug use and child welfare intervention. Steven has an extensive criminal record, including a conviction for voluntary manslaughter for which he served a 12-year prison sentence. He was released in 2015.
The juvenile court exercised its dependency jurisdiction over Addison (§ 300, subd. (b)) and ordered the parents to participate in parenting, mental health and substance abuse services and weekly supervised visitation. The agency placed Addison in foster care.
By the six-month review hearing, scheduled in August 2016, Amanda was participating in all of her court-ordered services and testing negative for drugs. However, the agency questioned her parenting ability because she was harsh with her older children who accompanied her to visits with Addison and she was unable to control them. In addition, she appeared distant with Addison and not very interactive. Amanda also appeared to be "enmeshed and co-dependent" with Steven. Steven meanwhile tested positive for methamphetamine and was discharged from a substance abuse treatment facility because of his hostile and verbally aggressive behavior.
The agency recommended the juvenile court continue reunification services for Amanda in the hope that she would successfully reunify with Addison if given more time. The agency did not believe Steven could reunify based on his lack of progress and recommended the court terminate his services. The agency also informed the court that Addison was doing exceptionally well and bonding with her foster care parents who wanted to adopt her.
On August 24, 2016, the day before the six-month review hearing, Amanda and Steven married. The hearing was continued to September.
In September 2016, following a contested six-month review hearing, the juvenile court terminated Steven's reunification services and continued Amanda's to the 12-month review hearing in February 2017. The court found that Amanda made good progress but admonished her that continuing her relationship with Steven could prevent her from reunifying with Addison. The court added co-dependency to Amanda's counseling requirement and a mental health assessment to her case plan.
In January 2017, Amanda's attorney filed a modification petition under section 388, asking the juvenile court to return Addison to Amanda's custody. As changed circumstances, her attorney alleged that Amanda's final barrier to reunification, i.e., her relationship with Steven, was overcome when they separated on December 26, 2016, after Steven hit her, causing a black eye. They remained separated and Amanda maintained her sobriety, lived in safe housing and participated in her services plan.
The juvenile court denied Amanda's section 388 petition, finding her separation from Steven too recent to constitute a change in circumstances. The court explained, "[Amanda] knew her continued relationship could adversely impact reunification ...."
Amanda continued to make progress in her services plan. She completed a parenting class, participated in individual counseling to address domestic violence and co-dependency and consistently tested negative for drugs. However, she did not consistently attend Alcoholics/Narcotics Anonymous (AA/NA) meetings and was required to arrive an hour early for visits because she had a history of not showing up, cancelling or leaving early. In addition, the agency believed Amanda maintained a relationship with Steven, though she claimed otherwise. Consequently, the agency did not advance Amanda's visitation to community visits, afraid she would include Steven in the visit. The agency opined Amanda's progress was fair and recommended the juvenile court continue her services to the 18-month review hearing.
In February 2017, the juvenile court continued Amanda's reunification services to the 18-month review hearing scheduled for July 2017. On June 28, 2017, Amanda filed for divorce.
By the 18-month review hearing, Amanda had completed her case plan requirements except outpatient drug treatment through the First Step Perinatal Program (First Step) and the agency reported that she continued to make progress. However, the agency believed that she and Steven maintained a relationship. As evidence, the agency pointed to their intact marriage and constant contact. Amanda referred to Steven as her best friend and wanted to have joint visits. They also had the same address, even though they denied living together. The agency opined that it would be detrimental to return Addison to Amanda's custody and recommended the court terminate her reunification services.
Addison, meanwhile, had been moved from her foster parents because of allegations of physical abuse and neglect. The neglect allegation was substantiated. The agency placed Addison in a receiving home, awaiting placement in a new concurrent home.
On July 13, 2017, Amanda requested a contested hearing, which the juvenile court conducted on October 13, 2017. Prior to the hearing, the agency filed additional information with the court, including a police report that Steven was arrested on July 23rd for possession of methamphetamine and failure to register as a sex offender. Amanda was aware of his arrest because she was a passenger in his vehicle when the police pulled him over. She explained they attended the same AA/NA meeting and he gave her a ride home. She wanted to tell her social worker about the arrest but was afraid of how it would be perceived. She subsequently went to different meetings to avoid running into Steven.
On September 21, 2017, Addison, her new foster mother, Amanda and Steven attended a medical appointment for Addison at Oakland Children's Hospital. The following day, the foster mother contacted the social worker who summarized their conversation in a service log dated September 22, 2017. The foster mother stated Amanda called Steven "babe" throughout the day and they kissed each other goodbye at the end of the day. Amanda also planned to time her divorce hearing so she could withdraw the dissolution petition if she did not reunify with Addison.
Amanda made an offer of proof at the contested 18-month review hearing that she was scheduled to graduate from First Step the following week and planned to attend after care there. She had been sober for 635 days, consistently tested negative for drugs, attended three weekly AA/NA meetings and was on step eight of the 12-step program. She continued to reside with her grandmother, applied for a job and filed for divorce on June 28, 2017. She denied kissing Steven at the medical appointment or making her divorce contingent on whether she reunified with Addison. She continued to visit Addison twice a week; once at the agency and once at First Step. Her offer of proof was accepted by the parties.
The agency called Amanda as a witness after the juvenile court refused to consider the September 22 log notes. She denied discussing the divorce with the foster mother and remaining in an intact relationship with Steven. She loved Steven because they had Addison but believed their relationship was "toxic." Asked why she needed to divorce him, she stated, "Because CPS says that ... we have to because apparently he's a danger." Amanda, however, did not believe he was a danger. Nor was she concerned about his methamphetamine use or status as a sex offender registrant. She believed Addison was safe around Steven but would protect her by not allowing her around him.
Steven testified he began drug testing before his arrest in July and denied hitting Amanda or Addison. Asked whether he considered himself a danger to them, he answered, "Absolutely not." He received the petition for dissolution but had not filed a response. He did not know he was required to file one.
The juvenile court acknowledged Amanda's sustained sobriety, commenting that it was "a big deal." However, the court expressed concern about her inability to separate from Steven, given their shared history of substance abuse and Steven's continuing use. The court found it would be detrimental to return Addison to Amanda's custody and terminated reunification services. Noting Addison had never lived with either parent, the court reduced visitation to once monthly after two months of transition. The court set a section 366.26 hearing for February 13, 2018, to select a permanent plan.
Amanda and Steven challenged the juvenile court's detriment finding by writ petition (Cal. Rules of Court, rule 8.452), which we denied.
Amanda H. v. Superior Court (Feb. 2, 2018, F076465) [nonpub. opn.]; Steven K. v. Superior Court (Jan. 8, 2018, F076466) [nonpub. opn.]. --------
The agency filed a report for the section 366.26 hearing, recommending the juvenile court find Addison was likely to be adopted, terminate parental rights and approve a permanent plan of adoption with Addison's foster parents. Addison was thriving in her placement and her foster parents demonstrated genuine love and affection for her. She appeared very comfortable in their presence. She smiled when she was with them. She also went to them for comfort. The agency also reported that Amanda and Steven regularly visited Addison and their visits went well.
Prior to the hearing, Steven filed a modification petition under section 388, asking the juvenile court to return Addison to Amanda's custody. As changed circumstances, he declared that he completed intensive outpatient drug treatment in November 2017 and had been clean and sober since May 2017. He explained that the methamphetamine found in his car in July 2017 was in a backpack that was placed there without his knowledge by a neighbor. He submitted a declaration by the neighbor stating she placed the backpack in his car. As to why his proposed order served Addison's best interests, Steven stated that he and Amanda regularly visited Addison and had been a part of her life even though she did not live with them. They had always been protective of her and loved her.
On February 13, 2018, the juvenile court denied Steven's section 388 petition without setting a hearing after finding Steven failed to demonstrate a change of circumstances. Amanda's attorney made an offer of proof that she had been sober for two years as of January 17, 2018. She continued to attend two AA meetings each week and finished the 12-step program. She continued to reside with her grandmother and older daughter and had custody of her son every other weekend. She consistently visited Addison. At visits they colored, played and ate. Addison called her "Mom." She loves Addison and wanted to remain a part of her life and see her grow up. She knew that Addison experienced many changes in her life and she wanted to continue to be a consistent loving support for her. The court accepted Amanda's offer of proof. Steven testified he regularly visited Addison. She smiled when she saw him and reached out for him to pick her up. She called him "dadda" and was sad when the visits ended. He wanted the court to return her to him and Amanda because they represented the most consistency she had in her life. He was not the danger he was perceived to be and did not understand why he was perceived that way.
The juvenile court found that Amanda and Steven regularly visited Addison but failed to show terminating their parental rights would be detrimental to her. The court stated:
"[I]t appears that Addison is indeed doing well in her current placement, that she is thriving, and I will trust that she finally is in an appropriate and good placement after all this time and after all the upheaval. [¶] ... [N]either of the parents [has] proven to the Court that a permanent plan of adoption would be more detrimental to her than the benefit that she would achieve through permanence through adoption. And not meeting the burden of proof, the Court finds that termination of parental rights would not be detrimental to Addison."
DISCUSSION
After reunification services are terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (In re Celine R. (2003) 31 Cal.4th 45, 52.) Section 366.26 governs the proceedings at which the juvenile court must select a permanent placement for a dependent child. The express purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the court determines it is likely the child will be adopted, the statute mandates termination of parental rights unless the parent opposing termination can demonstrate that termination of parental rights would be detrimental to the child under one of the statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B).)
Amanda contends the exception found in section 366.26, subdivision (c)(1)(B)(i), i.e., the beneficial parent-child relationship exception, applies in her case. Under that exception, the juvenile court shall not terminate parental rights 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).)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial parent-child relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some " 'emotional bond' " with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) Rather, the parent must show that he or she occupies a parental role in the life of the child (In re I.W. (2009) 180 Cal.App.4th 1517, 1527) and 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 Angel B. (2002) 97 Cal.App.4th 454, 466.) "A beneficial relationship 'is one 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 re Marcelo B. (2012) 209 Cal.App.4th 635, 643.)
When the juvenile court finds the parent has not met his or her burden of producing evidence establishing the existence of the beneficial parent-child relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528; In re Breanna S. (2017) 8 Cal.App.5th 636, 647.)
Here, the juvenile court found Amanda and Steven maintained regular visitation and contact with Addison, thus satisfying the first prong of the exception. The court also found, however, they failed to show that terminating their parental rights would be detrimental to her and the evidence bears this out. While Amanda and Steven's contact with Addison was loving and affectionate and she enjoyed their company, they did not occupy a parental role in her life. She had never been in their care and her only contact with them was through visitation. In addition, there was no evidence that terminating parental rights would deprive her of a substantial, emotional attachment or cause her great harm. Thus, the evidence did not compel a finding in favor of Amanda and Steven as a matter of law and the court did not err by refusing to apply the beneficial parent-child relationship exception.
Amanda nevertheless contends the juvenile court improperly terminated her parental rights because of her ongoing relationship with Steven and that such evidence was irrelevant. Indeed, it would be irrelevant and improper if that were the basis of the court's termination order, but it was not. Amanda cites a portion of the reporter's transcript where the court acknowledged her efforts but found her prior testimony concerning her relationship with Steven was not credible. The court stated:
"[A]lthough ... it appears that [Amanda] has tried, this Court also has some real issues with regard to [Amanda's] credibility. I would note that at the last contested hearing on October 13, 2017 [Amanda] testified that she did not want to be in a relationship with [Steven] because she felt they were toxic together. She decided in June of 2017 that they were no longer going to be a couple, that she had started divorce proceedings but, despite that testimony, she and [Steven] had requested that their visits be conjoint, and they have continued to have conjoint visits, which [makes her prior testimony] [¶] ... not credible."
The juvenile court's statement about Amanda's relationship with Steven and her credibility was a comment on the evidence. In assessing detriment, the court was clearly evaluating the effect on Addison of terminating parental rights, not the effect of returning her to their custody. We find no error.
DISPOSITION
The juvenile court's orders terminating parental rights are affirmed.