Opinion
F080592
07-06-2020
In re A.G., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY Plaintiff and Respondent, v. E.G., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 518075)
OPINION
THE COURT APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Smith, J. and Snauffer, J.
-ooOoo-
Evelyn G. (mother) challenges orders of the juvenile court terminating her parental rights pursuant to Welfare and Institutions Code section 366.26, after finding that the beneficial parent/child relationship exception to adoption did not apply. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Section 300 Petition
When A.G. was born in August of 2017, his five-year-old half sister was a dependent, placed in foster care. At the time of A.G.'s birth, mother was residing at a clean and sober facility while addressing her long-standing methamphetamine addiction.
The underlying dependency involving the older child began in March of 2017, when a woman called law enforcement and asked that they come pick up the child. The woman explained that she did not know the child's mother or how to contact her. The woman explained that mother had left the child with a transient who, in turn, left the child with another transient, and the child was then left with her.
Both mother and A.G. tested negative at A.G.'s birth. The Stanislaus County Community Services Agency (agency) filed a non-detained section 300 petition. The petition alleged A.G.'s father was a man known to mother only as "Dreamer." His whereabouts were also unknown.
At the initial hearing September 15, 2017, A.G. was permitted to remain with mother at the treatment facility. Jurisdiction and disposition were set for October 25, 2017.
The matter was continued to November 7, 2017, after it was learned that mother had a criminal court date for October 25, 2017, which could impact the recommendation of the agency.
The jurisdiction/disposition report recommended that A.G. remain in mother's custody at the treatment facility under family maintenance services and that the alleged father be denied services. The report indicated that mother was making "adequate progress" in her services ordered in her older child's case, although there were concerns about her immature "acting out" behaviors.
At the jurisdiction/disposition hearing, mother submitted on the report and recommendations. Services were denied to the alleged father, found to be Salvador P., whose whereabouts were unknown.
On January 5, 2018, mother had to turn herself in to the jail to serve a one to two-year sentence for violation of probation stemming from a 2015 conviction for assault with a deadly weapon. Mother had no relative or friend capable of caring for A.G., and he was placed into the same foster home as his older half sister. Supplemental Section 387 Petition
A supplemental petition was filed regarding A.G. and he was ordered detained on January 9, 2018. Mother was ordered to have weekly one-hour visits at the jail, if she was housed locally. Jurisdiction/disposition was set for February 28, 2018.
The jurisdiction/disposition report prepared for the section 387 petition recommended that mother receive reunification services. A.G. had had three visits with mother, required to occur behind a glass barrier. It was expected that she would serve eight months in county jail.
On February 28, 2018, the juvenile court found the supplemental petition true, removed A.G. from mother's custody, and granted her reunification services. Services were denied Salvador P. The six-month review was set for August 22, 2018. Six-Month Review
The report prepared for the six-month review recommended continued services for mother. A.G. was reported to be healthy and had a bonded relationship with his caregivers. Mother was participating in services, as she could, in jail.
In March 2018, mother was moved to a different jail facility, which allowed visitation only by video. Due to his young age, A.G. was too distracted to visit.
At the six-month review hearing August 22, 2018, the juvenile court granted mother an additional six-months of services. A 12-month review was set for February 14, 2019. 12-Month Review
In January 2019, the agency filed a combined status review report for both A.G. and his older half sister. The report, a 12-month review for A.G., and a 24-month review for his half sister, recommended that services be terminated and a section 366.26 hearing set.
A.G. was in good health and developing normally for his age. He continued to be placed with his half sister in the same foster home, where he was bonded to his caregivers.
Mother was released from jail in August 2018. While she had had behavior issues both in the treatment program and at the sober facility, she had recently begun taking "ADHD" medication and was now more attentive and better focused. And while she had been in the treatment program for over a year, she was still in the first phase. Her counselor reported that she waits to be told what to do and does not advocate for herself. The counselor was concerned that, if mother had her children in her care, she would not advocate for their needs. The facility did not even recommend community visits, as they did not trust mother to meet her children's needs. Instead, visits remained at the clean and sober facility.
Mother was overwhelmed when she tried to supervise the two children together. She never chose to attend any of A.G.'s medical appointments, and constantly called him "Gordo," Spanish for fat. Mother's parenting of her older child caused concern. She reinforced the child's bad behaviors by laughing about it. And mother declined to meet with the child's clinician, thinking it was not necessary.
Mother was often dismissive of her own previous bad behavior. In addition, mother broke numerous house rules, including giving her food stamp card to her girlfriend rather than to the facility.
On February 14, 2019, mother requested a contested hearing, which was set for February 26, 2019. On that date, a stipulated agreement was reached, terminating services for mother's older child, but continuing A.G.'s services to the 18-month hearing. The agency was given discretion to start overnight visits which could lead to a trial visit for A.G. The 18-month review was set for June 20, 2019. 18-Month Review
The report prepared for the 18-month hearing initially recommended that the case be continued for three months to allow the agency to begin a trial visit for A.G. Mother, who was still at the clean and sober facility was, after two years, now in phase II of the program. The director of the program expressed concern that mother was allowing herself to be "babied" at the program and mother had not yet inquired about the next phase, the Graduate House.
In April 2019, mother began day-long visits with A.G.; in May 2019, overnight visits; and later that month, began an extended visit. The trial visit was made with "reservations," according to the social worker.
Mother thought she could stay at the clean and sober facility as long as she liked, and had not yet completed phase II.
The agency had additional concerns regarding mother. In one instance in March of 2019, when the caregiver arrived to drop A.G. off for a scheduled visit at the, mother was not there because she was attending another appointment. Mother told the staff to have the caregiver leave A.G. with "another mom" until she got back. When confronted with leaving A.G. with a stranger, mother insisted that it was not a stranger, but a friend, even though mother had just met the person and the person was a complete stranger to A.G. Mother never asked for increased visits or contacted her children by telephone at the caregiver's home. She would only do things when they were brought to her attention.
In order to graduate from phase II of her treatment program, mother would need a childcare plan, which she had not created.
At the June 20, 2019, hearing, the juvenile court granted the caregivers request for de facto parent status. At the hearing, the agency indicated that it was changing its recommendation as to A.G. and a contested hearing was set for July 23, 2019.
On June 28, 2019, the agency filed an addendum report recommending termination of services to mother and setting a section 366.26 hearing. The report indicated that mother had demonstrated that she was unable to learn from her services and provide adequately for her children. For example, on May 15, 2019, when mother called the social worker to state that she had a visit with her older child and an appointment for A.G. at the same time, mother demanded of the social worker "so what are you going to do about it?" Mother had run out of time to reunify but continued to have no plans beyond living at the clean and sober facility indefinitely.
A second addendum report was filed prior to the hearing, this one reporting that mother was on blackout because she got caught having another client take her meeting slip to the NA/AA meetings because she did not want to attend. When asked about it, mother said that happened "a while ago" and she was now "doing good."
At the July 23, 2019, hearing, services were terminated for mother and a section 366.26 hearing set for November 19, 2019. Section 366 .26 Reports
Prior to the section 366.26 hearing, the agency conducted yet another absent parent search for Salvador P. and located him in prison. He was appointed counsel, completed a JV-505 form indicating that he did not know if he was A.G.'s father, and DNA testing ordered.
The section 366.26 report stated that the DNA test had been completed, but the tests had not yet been received. The report recommended termination of parental rights for both mother and Salvador P., and that A.G. be adopted by the current caregivers with whom he had resided since he was four months old—he was now 26 months old. A.G. was healthy and developing normally. He had recently developed aggressive behaviors and was being assessed for counseling.
Since termination of services, mother had visited three times. She did not visit in the month of August 2019. Visitation reports for the entire case were attached to the report.
On November 4, 2019, the agency filed an additional information report, stating that Salvador P. was found to be the biological father of A.G. The recommendation continued to be termination of parental rights.
At a pretrial hearing November 12, 2019, Salvador P. was found to be A.G.'s biological father. He reported being in custody "on and off" during the last two years, and through counsel asked that the 366.26 be continued and he be allowed to file a section 388 petition.
The juvenile court denied the request for continuance, but stated any section 388 petition filed prior to the scheduled section 366.26 hearing could be heard on November 19, 2019, at the section 366.26 hearing. Section 388 Petition
On November 14, 2019, father filed a section 388 petition requesting the juvenile court vacate the section 366.26 hearing; trail the hearing so father could "prepare"; grant father reunification services; elevate him to presumed father status; and order that his family be assessed for placement. The matter was set for a hearing on whether the grant or deny an evidentiary hearing for November 19, 2019. Hearing on Section 388 Petition and Section 366 .26
At the combined section 388 and section 366.26 hearing November 19, 2019, the juvenile court first addressed the section 388 petition. After argument by both parties, the court denied an evidentiary hearing on the petition.
The denial of Salvador P.'s section 388 petition is currently before this court in a separate appeal (case No. F080306).
The juvenile court then proceeded with the section 366.26 hearing. Mother testified on her own behalf that while A.G. was in custody for seven months, she visited him twice a month "I think." When released from custody, she visited him up to "like four times a week." After services were terminated, she saw him once per month.
Mother testified that, when A.G. sees her, he runs to her and says "mom, mom." During visits, they play and laugh, and she takes him to "go drink water and stuff, ... [and] run around." Mother acknowledged that A.G. had not lived with her since he was four months old.
After closing argument, the juvenile court found A.G. was adoptable. It found that, while mother had visited regularly, she had not met her burden to demonstrate that the minor would be greatly harmed if parental rights were terminated. The juvenile court terminated parental rights for both mother and Salvador P.
DISCUSSION
The Beneficial Parent-Child Relationship Exception
Mother's only contention on appeal is that the juvenile court erred in terminating her parental rights because there was substantial evidence that she maintained regular visitation with A.G. and that he would benefit from continuing the parent-child relationship. We find no merit to mother's claim.
At the permanency planning hearing, the juvenile court determines a permanent plan for the child, and may order one of three alternative plans: adoption, guardianship, or long-term foster care. (§ 366.26, subd. (b); see In re J.C. (2014) 226 Cal.App.4th 503, 528.) " '[T]here is strong preference for adoption over the alternative permanency plans.' " (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) Generally, if the court finds the child adoptable the court must terminate parental rights. "[T]o avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, ... apply." (In re Anthony B., supra, at p. 395.)
Legal Principles Regarding the Benefit Exception
The benefit (or parental bond) exception exists where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) 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), italics added.) In deciding whether the exception applies, " 'the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.' [Citation.]" (In re J.C., supra, 226 Cal.App.4th at p. 528.) " 'If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' " (Id. at pp. 528-529.)
The factors the juvenile court considers in making this case-by-case assessment include: " 'The age of the child, the portion of the child's life spent in the parent's custody, the ... effect of interaction between the parent and the child, and the child's particular needs.' " (In re G.B. (2014) 227 Cal.App.4th 1147, 1166.)
The benefit exception "does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) "It is not enough to show that the parent and child have a friendly and loving relationship." (In re J.C., supra, 226 Cal.App.4th at p. 529.) " ' "[A] child needs at least one parent. Where a biological parent ... is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent." [Citation.]' [Citation.]" (Ibid.)
Standard of Review
Appellate courts are divided over the appropriate standard of review to apply to an order determining the applicability of the beneficial parent-child relationship exception. Some courts have applied the substantial evidence test (e.g., In re G.B., supra, 227 Cal.App.4th at p. 1166), while others have applied the abuse of discretion standard (e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351). Still other courts have adopted a mixture of both standards, applying the " 'substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child.' " (In re E.T. (2018) 31 Cal.App.5th 68, 76.)
This issue is currently before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019 (S255839). --------
Our conclusion in this case would be the same under any of these standards because the practical differences between them are "not significant," as they all give deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) " '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.' " ' " (Ibid.) Moreover, a substantial evidence challenge to the juvenile court's failure to find a beneficial parental relationship cannot succeed unless the undisputed facts establish the existence of those relationships, since such a challenge amounts to a contention that the "undisputed facts lead to only one conclusion." (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
Analysis
Here, there is no question that mother visited regularly. However, she failed to establish the second prong of the test—that the parent seeking to establish the beneficial relationship exception to adoption must prove not only that it would benefit the child to continue the parental relationship, but also that continuing the relationship would "promote[ ] 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, italics added.)
Under the balancing test set forth in Autumn H., we conclude the juvenile court acted within its discretion in terminating mother's parental rights. A.G. was removed from mother's custody when he was just four months old and spent nearly his entire life in the custody of his current caregivers. The caregivers had been responsible for all of A.G.'s needs since shortly after birth. While mother identifies ways she was appropriate and met A.G.'s needs during supervised visits, there was no indication in the record that A.G. had trouble separating from mother at the end of visits. A.G. did not display any unusual medical or developmental issues that mother was particularly suited to address. It was reported that A.G.'s caregivers had a suitable home where A.G.'s needs would be met. And while mother may have had a loving relationship with A.G., she did not offer any testimony to suggest she could adequately provide for A.G.'s needs.
Here, the juvenile court determined that mother did not satisfy her burden of proof by a preponderance of the evidence. Based on the record before us we cannot find—as a matter of law—that the evidence compels a contrary finding. (See In re I.W., supra, 180 Cal.App.4th at p. 1528.) Further, there is substantial evidence to support the court's ruling, as well as the overriding statutory preference in favor of the child's adoption. (See In re G.B., supra, 227 Cal.App.4th at p. 1166 [" ' "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement" ' "].) Thus, the juvenile court properly found the benefit exception did not apply and the court did not err in ordering the termination of mother's parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.