In re A.T. CA4/2

• Court: California Court of Appeal
• Decided: March 20, 2013
• Docket: E057016
• Status: Unpublished

Opinion

Filed 3/20/13 In re A.T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.T. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057016

Plaintiff and Respondent, (Super.Ct.No. RIJ119719)

v. OPINION

S.T.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. S. Patricia Spear, Judge.

(Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art.

VI, § 6 of the Cal. Const.) Affirmed.

William Hook, under appointment by the Court of Appeal, for Defendant and

Appellant.

1 Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

Defendant and appellant S.T. (Mother) appeals from an order terminating her

parental rights with respect to her four children, A., So., Se., and O. The order was made

at a hearing held pursuant to Welfare and Institutions Code section 366.26.1 She

contends the court abused its discretion when it found the beneficial parental relationship

exception to adoption did not apply. We reject the argument and affirm the court’s

orders.

I. FACTUAL AND PROCEDURAL SUMMARY

A. Detention, Jurisdiction, and Disposition

Mother’s child Se. was born in April 2010, and placed in the neonatal intensive

care unit (NICU) of the hospital. Hospital staff noted that Se. “‘appear[ed] to be

experiencing withdrawal symptoms’” and that Mother “‘never seemed to bond with the

baby.’” Se. tested positive for methamphetamine.

At the time of Se.’s birth, Mother had custody of her children A. (four years old)

and So. (22 months old). At that time, the children were living with a maternal aunt and

maternal great-aunt.

A social worker and a police officer went to Mother’s residence, where she lived

with her mother. She denied using any methamphetamine while pregnant. She also

1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 denied more recent use. However, when the police officer conducted a field sobriety test

on her and found her under the influence of a controlled substance, she admitted using

methamphetamine earlier that day. The social worker informed Mother that Se., So., and

A. would be placed into protective custody because of her substance abuse and severe

neglect toward Se.

Se. and So. had one father; A., another. Mother was married to Se. and So.’s

father, but they were separated. In addition to Se. and So., they had another child, J., who

lived with the father. The father was not willing to take custody of Se. and So. because

he was unemployed and unable to provide for them.

A.’s father was in prison and had no relationship with his child.

On May 4, 2010, plaintiff and respondent, Riverside County Department of Public

Social Services (DPSS), filed a dependency petition under section 300 as to Se., So., and

A. The petition alleges dependency jurisdiction based on the parents’ failure to protect

the children (§ 300, subd. (b)), and lack of support (§ 300, subd. (g)).

Following a hearing, the court ordered the children detained. The two older

children were placed together in a foster home. The infant Se. was placed in a “medically

fragile home.”

In a report prepared for the jurisdictional and dispositional hearing, the social

worker stated that Mother “is addicted to debilitating illegal drugs,” “has a history of

criminal activity and jail time,” and “leads a dangerous lifestyle.” Her “only visible

support system and only visible means of financial support is found in illegal drugs and

3 street life.” However, Mother had enrolled in a substance abuse treatment program and

appeared to the social worker to be “very motivated to get her children home . . . .”

At the jurisdictional/dispositional hearing held in July 2010, the court sustained

the petition, declared the children dependents of the court, and removed them from their

parents. Mother was provided with reunification services. Services were not provided to

A.’s father because he had been convicted of a violent felony. (See § 361.5, subd.

(b)(12).) Se. and So.’s father waived his right to services under section 361.5,

subdivision (b)(14).

B. Six-month Review

In a status review report for the six-month review hearing, the social worker

reported that Mother was pregnant. Mother’s progress in her treatment programs was

described as “shaky,” with unauthorized absences and late arrivals. She twice tested

positive for drugs and admitted she would test positive on a third date. Nevertheless, she

was able to graduate to the next phase of the program.

Visits between Mother and the children were scheduled for twice each week.

Mother appeared for most visits, although she missed several visits without informing the

foster parents or the social worker. The older children were reportedly “quite a handful

when in the presence of [Mother],” who did “not seem to have much control of both of

them at the same time.”

At the six-month review hearing, the court continued reunification services for

Mother.

4 C. Twelve-month Review and Detention of Newborn O.

In April, 2011, the infant Se. no longer required a medically fragile home and was

placed in a foster home near Mother.

Mother changed her substance abuse program to accommodate her pregnancy. By

May 2011, she was promoted to phase 4 of the program and looking forward to

graduation.

In the time between the six-month and 12-month review periods, visits with the

older children increased to overnight visits. According to the social worker, Mother and

the maternal grandmother “have caused some difficulties,” including wrongfully accusing

the foster parents of abuse. The social worker further stated that the children

significantly increased their acting out behaviors after visits and A., the older boy, would

use “many curse words” after returning from visits. It would take several days to calm

the daughter So. A. told the social worker he was hungry during visits, that Mother is

often sleeping, and they are not allowed to play outdoors.

Mother had twice weekly visits with Se., the infant. The social worker noted that

Mother would call the foster parents to schedule visits, then cancel abruptly without

rescheduling.

Mother’s fifth child, O., was born in June 2011. Three days after O.’s birth, DPSS

filed a dependency petition concerning her under section 300, subdivisions (b) (failure to

protect) and (j) (abuse of sibling). An amended petition adding an allegation under

5 section 300, subdivision (g) (no provision for support) was filed on July 29, 2011. (O.’s

father is not the father of Mother’s other children.)

In a detention report, the social worker noted that Mother and O. tested negative

for drugs. Mother had good prenatal care and was bonding well with O. Mother was

making progress on her case plan and attends Alcoholics Anonymous and Narcotics

Anonymous meetings. Mother told the social worker she has completed two substance

abuse programs and believes she will be a better parent now that she is parenting sober.

Mother’s sober house manager told the social worker that Mother’s random drug tests

have been clean and that Mother “appears to really understand the dynamics of drug use

and sobriety, and that she believes [Mother] wants to remain clean and sober.”

At a detention hearing regarding O., DPSS recommended that the infant remain

with Mother and be detained from the father only. The court agreed.

The jurisdictional and dispositional hearing regarding O. was held the same day as

the 12-month review hearing for the other three children. At the jurisdictional and

dispositional hearing, the court sustained the petition and declared O. a dependent of the

court and ordered family maintenance services for Mother. Mother retained custody of

the infant.

Following the 12-month review hearing, the court found that Mother’s progress

had been adequate but incomplete, and ordered continuation of reunification services.

6 D. Eighteen-month Review Period

In August 2011, the three children who had been living in foster homes were

returned to Mother’s care. According to the social worker, Mother’s “dogged pursuit of

case plan services and her dedication to reunify with her children was pivotal in allowing

[DPSS] to place the children back in her care.”

Mother completed a counseling program and her random drug tests were negative.

At the 18-month review hearing, the court found that Mother’s progress toward

alleviating the causes necessitating placement was satisfactory in that she had made

substantive progress or completed her case plan. DPSS was ordered to provide family

maintenance services.

E. Supplemental Petition

On November 21, 2011, the social worker received information that Mother was

using drugs and “out late at night with the baby, [O.].” Two days later, the social worker

met with Mother and gave her a random drug test, which showed positive for

methamphetamine and amphetamines. Mother told the social worker she used drugs each

of the two preceding days. Mother said she used drugs because of the stress of having the

children placed with her and having no one to help. The social worker placed the

children in protective custody. All four children were placed together in one foster home.

The court detained the children on November 30, 2011.

Mother arrived late to the first visit with several female companions, children, and

two male companions. The foster mother was concerned about “the mood of the visit and

7 the vibes of hostility she felt from the family.” Mother complained about spots on O.’s

ear and told the social worker she thought the children were being drugged.

DPSS filed a supplemental petition under section 387 for a more restrictive

placement concerning the four children on November 29, 2011. DPSS alleged that the

prior disposition had not been effective because Mother “continues to abuse controlled

substances and testified positive for methamphetamine on or about November 23, 2011.”

At the jurisdictional/dispositional hearing on the supplemental petition, DPSS

recommended that family maintenance services be terminated and that Mother be denied

family reunification services.

The court sustained the petition, adopted DPSS’s recommendations, and set a

hearing to be held pursuant to section 366.26.

F. Section 366.26 Proceedings

In a report prepared for the section 366.26 hearing, the social worker describes

recent visits between Mother and the children as “negative and chaotic.” Initially, visits

were held at a fast food restaurant and supervised by the foster mother. However, Mother

came with others who had not been approved for visits, and the foster mother felt that

Mother and the maternal grandmother were hostile toward her. Visits were then moved

to a foster family agency (FFA) office. Mother needed the assistance of the FFA staff

and Mother’s companions in supervising, feeding, and keeping the children safe.

Mother would begin the visits by bringing large quantities of food, including soda,

chips, candy, popcorn, donuts, juice, pizza, and hot dogs. She expected the children to

8 eat everything and if they showed displeasure at the food, Mother became upset, causing

the children to act up. Despite being counseled on more positive ways to begin visits,

Mother continued to start visits this way.

The maternal grandmother came to some visits disheveled, tired, perspiring

profusely, and appearing to be under the influence of an unknown substance. Mother is

agitated when the maternal grandmother is there and becomes more limited in dealing

with the children. Mother’s expectations regarding the children grow more unreasonable

and the visits disintegrate into one disciplinary action after another.

A., who is six years old at this time, was initially withdrawn from Mother and

expressed a desire to go home. FFA staff were able to get him to enjoy visits more.

When the child is unable to fulfill Mother’s expectations, Mother ignores him, causing A.

to withdraw and cry. The effects of the visits on the other children are similar. Three-

year-old So.’s behavior deteriorates and she is relieved to go home to the foster parent.

Two-year-old Se. throws tantrums and, by the end of the visit, is tired and ready to return

to the foster home. Mother will continue to feed nine-month-old O. despite the infant’s

signs that she is not hungry.

DPSS recommended that visits between Mother and the children be discontinued.

The prospective adoptive parents for the children are the current caregivers.

According to the social worker, they “are extremely bonded to these children and

consider them as part of their family.” “They are very committed to adopting the

children and providing them with a permanent home.”

9 At the section 366.26 hearing, Mother testified that she and the children will play

together during visits and watch movies together. The three children who are old enough

to talk call her “mommy.” At the end of visits, her daughter So. will say she wants to go

home with the maternal grandmother. She has made it to most of her scheduled visits,

although she has missed some due to scheduling problems.

The court found that the children were adoptable. Mother argued that the court

should select legal guardianship as the permanent plan, not adoption, based on the

beneficial parental relationship exception to adoption under section 366.26, subdivision

(c)(1)(B)(i). The court rejected the argument. The court noted that Mother “has visited

and had contact.” However, while there was thus “some basis to say she’s visited

regularly, . . . that’s pretty much as far as it goes.” The court further indicated that

termination of the parental relationship would not be detrimental to the children. The

court then terminated parental rights and selected adoption as the permanent plan.

II. ANALYSIS

At a section 366.26 hearing, the juvenile court determines a permanent plan of

care for a dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53; In re Casey D.

(1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the

Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) “‘Only if adoption is

not possible, or if there are countervailing circumstances, or if it is not in the child’s best

interests are other, less permanent plans, such as guardianship or long-term foster care

considered.’ [Citation.]” (Id. at p. 574.)

10 “Once the court determines the child is likely to be adopted, the burden shifts to

the parent to show that termination of parental rights would be detrimental to the child

under one of the exceptions listed in section 366.26, subdivision (c)(1).” (In re S.B.

(2008) 164 Cal.App.4th 289, 297.) In this case, Mother argued that the beneficial

parental relationship exception under section 366.26, subdivision (c)(1)(B)(i) applies.

The beneficial parental relationship exception applies when there is “a compelling

reason for determining that termination would be detrimental to the child” because the

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).) To prove the

existence of a beneficial parental relationship, the “parent must do more than demonstrate

‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent

and child find their visits pleasant. [Citation.]” (In re Derek W. (1999) 73 Cal.App.4th

823, 827.) The parent must show 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 other words, 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. 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.” (In re Autumn H., supra, 27

Cal.App.4th at p. 575.)

11 In reviewing challenges to a trial court’s decision as to the applicability of the

parental relationship exception, we will employ the substantial evidence or abuse of

discretion standards of review depending on the nature of the challenge. (In re Bailey J.

(2010) 189 Cal.App.4th 1308, 1315-1316.) We will apply the substantial evidence

standard of review to evaluate the evidentiary showing with respect to factual issues. (Id.

at p. 1315; §§ 366.26, subd. (c)(1)(B)(i), (v).) However, a challenge to the trial court’s

determination of questions such as whether, given the existence of beneficial parental

relationship, there is a compelling reason for determining that termination of parental

rights would be detrimental to the child “is a quintessentially discretionary

determination.” (In re Scott B. (2010) 188 Cal.App.4th 452, 469.) We review such

decisions for abuse of discretion. (Ibid.) In the dependency context, both standards call

for a high degree of appellate court deference. (Ibid.; In re Jasmine D. (2000) 78

Cal.App.4th 1339, 1351.)2

Regarding the threshold requirement of maintaining regular visitation and contact

with the children, the court expressly found that Mother visited regularly with the

children. Although Mother missed some visitation appointments, her testimony indicates

that the missed visits were rare exceptions to a regular visitation schedule of twice each

2 As the In re Jasmine D. court noted: “The practical differences between the two standards of review are not significant. ‘[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 did.’ . . .”’ [Citations.]” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

12 week in the eight months leading up to the section 366.26 hearing. The court’s finding

regarding this point is thus supported by substantial evidence.

There is conflicting evidence as to whether the parental relationship was beneficial

to the children. Mother testified to positive visits with the children where they play

games and watch movies, and the children call her mommy. The social worker, however,

described visits between Mother and the children as “detrimental,” and “negative and

chaotic.” The description of the visits, summarized above, indicate that Mother struggled

to create a close parental bond with the children. Mother needed the assistance of FFA

staff to supervise and keep the children safe. She brought large quantities of snacks and

became upset when the children did not want to eat. A. would withdraw from Mother

and cry by the end of visits. The younger children displayed behavior indicating their

displeasure with the visits and a desire to return to the home of their caregiver. Such

evidence supports the court’s implicit finding that Mother and the children do not have

the kind of relationship contemplated by the beneficial parental relationship exception to

adoption.

Significantly, there is no substantial evidence of any detriment to the children as a

result of termination of parental rights. Indeed, when A., the eldest, was asked about the

possibility of adoption, he told the social worker that he likes living at the home of the

prospective adoptive parents and did not want to leave. Although the younger children

were too young for that conversation, the social worker noted that they “appear happy,

bonded, and loved in the home. They look to the prospective adoptive parents for care,

13 comfort, and guidance when they have a need and those needs are met by the prospective

adoptive parents.” The evidence thus provides no compelling reason for determining that

adoption and the termination of parental rights would be detrimental to the children.

For the foregoing reasons, we conclude the court did not err in ruling that the

beneficial parental relationship exception to adoption did not apply.

III. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING J.

We concur:

RAMIREZ P. J.

McKINSTER J.