Opinion
F073779 F073967
02-27-2017
In re N.E., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. A.G. et al., Defendants and Appellants.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant A.G. Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant S.E. Kathleen Bales-Lange, County Counsel, and John Rozum and Carol E. Helding, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV065350)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Judge. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant A.G. Neal B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant S.E. Kathleen Bales-Lange, County Counsel, and John Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
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A.G. (mother) and S.E. (father) are the biological parents of N. By the time N. was born in October of 2015, mother and father had had their parental rights terminated as to their three older children, who were adopted by one family. When N. was removed from mother and father's custody, he was placed in the same home with his siblings and the family was willing to adopt him. Mother and father now appeal from the juvenile court's order terminating their parental rights to N. pursuant to Welfare and Institutions Code section 366.26, arguing the juvenile court erred in finding the beneficial relationship exception to adoption did not apply. We disagree and affirm.
In this opinion, certain persons are identified by abbreviated names and/or by status in accordance with our Supreme Court's policy regarding protective nondisclosure. No disrespect is intended.
All further statutory references are to the Welfare and Institutions code unless otherwise stated.
STATEMENT OF THE CASE AND FACTS
Previous History
During 2006, mother received voluntary family maintenance services to address her issue with substance abuse. Mother completed the services and the case was closed.
In May 2011, N.'s sibling Sa. was born drug-exposed. N.'s siblings X., Se. and Sa. were adjudged dependents based on mother's substance abuse. Mother failed to reunify with the children and her reunification services were terminated in October 2011. Father, who had placement of the siblings under family maintenance, was given full custody and dependency dismissed in October 2011. Mother's visits were to be supervised and she was not to live with father and the children until she completed substance abuse treatment.
Father was arrested for drug and drug paraphernalia possession in 2012. At that time, mother was living with father and she was again using methamphetamine. X., Se. and Sa. were again detained, a new section 300 petition was filed and the children found to be dependents of the court based on mother and father's substance abuse, neglect, inadequate supervision and drug activity. Family reunification services were denied pursuant to section 361.5, subdivision (b)(10). In April 2013, mother and father's parental rights to X., Sa. and Se. were terminated, and the children were adopted together.
Section 361.5, subdivision (b)(10) provides that reunification services need not be provided a parent if the court has previously terminated reunification services because a parent failed to reunify with a sibling of the child currently at issue and the parent has not made a reasonable effort to treat the problems that led to removal of the sibling.
Detention Report and Hearing
In October 2015, mother gave birth to N., who was drug-exposed. Mother admitted using methamphetamine two days prior to going into premature labor, but denied ongoing drug use. N. was transferred to a neonatal intensive care unit due to complications at birth.
During the subsequent investigation by the Tulare County Health and Human Services Agency (agency), father admitted marijuana use, but denied methamphetamine use, although he tested positive for it.
A protective custody order was issued on October 13, 2015, and N. was taken into protective custody when he was discharged from the hospital. N. was placed with the same family who previously adopted N.'s three older siblings.
The agency filed a section 300 petition and subsequently a first amended petition alleging N. was at risk of harm due to mother and father's substance abuse, as well as the fact that mother and father had abused N.'s older siblings and had their parental rights terminated. At the October 15, 2015, detention hearing, the juvenile court found a prima facie showing N. was a child defined by section 300 and continued removal from mother and father. Relatives were to be assessed for placement. Mother and father were permitted twice weekly supervised visits.
Jurisdiction/Disposition Report and Hearing
In anticipation of jurisdiction and disposition, the agency recommend N. be adjudged a dependent, that no reunification services be offered to mother and father pursuant to section 361.5, subdivisions (b)(10) and (b)(11), and that a section 366.26 hearing be set to consider a permanent plan of adoption for N.
Section 361.5, subdivision (b)(11) provides that reunification services need not be provided a parent if parental rights to a sibling of the child currently at issue have been severed in the past and the parent has not made a reasonable effort to treat the problems that led to removal of the sibling.
The report stated that, since detention a month earlier, mother and father visited N. together four times. N.'s foster parent reported N. would return from visits highly agitated and would take as much as half a day to return to his normal state. The social worker recommended the parents visit only once a week for two hours because of N.'s medical condition and because reunification was not recommended.
N. was seen by a pediatrician, who reported some health issues, including poor weight gain, seizures, body stiffness in his extremities, arching of his body and gasping for air. N. suffered two seizures after returning from visits with mother and father, his clothing smelling heavily of perfume.
Both mother and father admitted to the social worker that they had a severe methamphetamine addiction and had sought treatment on their own, but provided no proof of program enrollment or completion. Mother was admitted to outpatient treatment November 10, 2015, but missed intake appointments on November 24 and December 15, 2015. She failed to drug test twice in November and once in December 2015. Father tested positive for methamphetamine on October 7, 2015, for marijuana on October 30, 2015, and he failed to test on November 10, 2015. Both did successfully complete drug-exposed infant training.
The social worker reported on two people suggested by mother who were considered for placement. One was a nonrelative extended family member who was interested, but had not yet completed the assessment. The other, a relative, withdrew, but said she would reconsider if the nonrelative family member was not approved.
The social worker met with the foster parents, who previously adopted N.'s siblings, and they were interested in adopting N. An adoption assessment determined N. was adoptable.
At the jurisdiction/disposition hearing held December 22, 2015, mother and father were represented by counsel and did not contest the allegations. As to jurisdiction, the juvenile court sustained the amended section 300 petition, finding all of the allegations true.
During the disposition phase of the hearing, the juvenile court denied mother and father's requests for reunification services. In doing so, the juvenile court noted the recommendation for no services was stronger against mother than father, but that father was living with mother and the two had recently married. Mother and father were permitted weekly supervised visits. A section 366.26 permanency planning hearing was scheduled for April 7, 2016. Section 366.26 Report and Hearing
In the section 366.26 report prepared for the permanency planning hearing, the agency recommended termination of parental rights and that N. be adopted by his current foster caregivers. N. had lived with them since a week after his birth and they were attentive to his physical and emotional needs and wished to adopt him.
The social worker reported that both mother and father visited N. regularly from December 2015 through March 2016. During visits, they attempted to interact with N. by talking to him and playing with him. The foster mother again reported that N. returned from the visits highly agitated. Mother and father missed several visits when mother was ill, and arrived late for others. At one visit, mother and father brought N. an inappropriate toy, thought to be a choking hazard. A few times, mother and father attempted to feed N. after he cried, even though they were told he had already finished a bottle before they arrived. On one occasion, mother became angry and yelled at the visitation supervisor.
The report stated neither mother nor father provided the social worker with information regarding the completion of any services in their case plan.
On May 3, 2016, at the contested section 366.26 hearing, both mother and father's counsel argued it would be detrimental to terminate parental rights because of the parent-child relationship bond. Mother's counsel made no mention of any efforts made by mother to address her substance abuse issue. Father's counsel stated father "almost always" tested "negative," and he had completed parenting and drug-exposed infant training.
Minor's counsel submitted on the agency's recommendations and stated that, while there were signs of a bond between mother, father and N., "we'd ask the child's best interest for the services to continue forward."
Minor's counsel's position is unclear, but a reasonable interpretation is that he was asking the juvenile court to follow the agency's recommendation to terminate parental rights. --------
The juvenile court noted it had three choices: foster care, guardianship or adoption. In weighing the options, the juvenile court stated:
"The child cannot be placed with the parents at this point. And so the option then becomes what is a long-term plan for this child. He's five months old. He is clearly adoptable. All the circumstances of his placement are very positive in terms of his future to be with his siblings and to have the home where he has a stability in his life. He's been there ever since his birth, really, and the parents have had a relationship—the relationship has been positive relationship.... So there's nothing wrong with that part of it. But clearly the child has a closer relationship to the current prospective adoptive parents because they had been the individuals that have been in charge of the child's life since birth, really; providing him all the necessities of life. However, I do make a finding that the parents
have met the first prong.... [T]hey have maintained regular contact with the child, positive contact; that there is clearly no evidence to show that—to terminate that situation would be detrimental to the child. It's clear that the child would benefit from the benefits of adoption. And so the Court will follow the recommendation of the social worker."
The juvenile court found N. likely to be adopted, that the beneficial relationship exception did not apply, and terminated parental rights.
Mother and father appealed separately. On July 1, 2016, this court ordered the appeals consolidated under mother's appeal.
DISCUSSION
BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION
Mother and father both contend the juvenile court erred in concluding that the beneficial relationship exception to adoption was not established when it terminated their parental rights. We disagree
Applicable Law
At a permanency planning hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) One of these statutory exceptions is the beneficial relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights in that "[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).)
"'To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.' [Citation.] 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 (Marcelo B.).)
The nature of the relationship between the parent and child is key in determining the existence of a beneficial 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.) "To overcome the preference for adoption and avoid termination of the natural parent's 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 Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a "'"parental role" in the child's life.'" (In re K.P., at p. 621.) Factors to consider include, "'"[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."'" (Marcelo B., supra, 209 Cal.App.4th at p. 643.)
The parent has the burden of proving the statutory exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) The juvenile court's decision a parent has not satisfied this burden is based on whether a beneficial parental relationship exists and, if so, whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
Appellate courts have adopted different standards of review for the beneficial parent-child relationship exception, with some reviewing for abuse of discretion and others reviewing for substantial evidence. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300 (Noah G.).) Recently, appellate courts adopted a mixture of both standards, reviewing the existence of the relationship for substantial evidence and the application of the exception for abuse of discretion. (Id. at pp. 1300-1301.) We find no error under any of these review standards.
Analysis
Mother and father argue they established both prongs of the beneficial relationship exception and that the record in this case is supportive that N. would best benefit from a continued relationship with them. We disagree.
In addressing the beneficial relationship exception, the juvenile court found, and respondent does not disagree, that mother and father met the first prong in that they visited N. regularly and that the visits were, for the most part, appropriate. But for reasons discussed below, it is clear that there is substantial evidence to support the juvenile court's findings that the bond between parents and N. does not rise to the level which would make termination of parental rights detrimental to N. and outweigh the benefits of adoption.
To begin with, as the juvenile court noted at the section 366.26 hearing, all the circumstances of N.'s placement, where he had been since birth with his older siblings, were positive. The juvenile court stated N.'s relationship with his current prospective adoptive parents was close, as they had been in charge of his life since birth, providing him with all the necessities of life. The social worker's report, which the juvenile court considered, stated N. was "happy, content, and comfortable in the presence of his care givers," and he "enjoys interactions" with them.
In addition, there is evidence in the record to support the juvenile court's finding that the relationship between the parents and N. was not that of a parent-child relationship which would be detrimental to terminate. While mother and father visited regularly, N. returned from those short weekly visits "highly agitated." Furthermore, as noted by the social worker's report, neither mother nor father made efforts to alleviate the reasons why N. was detained, nor did they testify to such at the hearing. This is especially troubling since those same issues were the reason their three older children were detained and their parental rights terminated. While the juvenile court here did not state that it was basing its decision on mother and father's efforts, or lack thereof, to alleviate their substance abuse issues, it was well aware of the history of the case. (See, e.g., Noah G., supra, 247 Cal.App.4th at p. 1302 [juvenile court "could properly focus on the mother's unresolved substance addiction issues," in determining whether the beneficial relationship exception applied].)
We find no error on the part of the juvenile court in finding that, while mother and father maintained regular contact with N., there was clearly no evidence to show that termination of parental rights would be detrimental to N. We disagree with mother and father's argument to the contrary.
DISPOSITION
The judgment terminating mother and father's parental rights is affirmed.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
FRANSON, J.