In re J.B. CA4/1

• Court: California Court of Appeal
• Decided: June 20, 2016
• Docket: D069456
• Status: Unpublished

Opinion

Filed 6/20/16 In re J.B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.B., a Person Coming Under the Juvenile Court Law. D069456 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3681) Plaintiff and Respondent,

v.

T.B.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent. Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.

INTRODUCTION

Mother appeals from a juvenile court judgment terminating her parental rights and

choosing adoption as the appropriate permanent plan for her child.1 (Welf. & Inst. Code,

§ 366.26.)2 She contends the court erred by finding the beneficial parent-child

relationship exception to adoption (id., subd. (c)(1)(B)(1)) inapplicable to preclude

termination of her parent rights. We disagree and affirm the judgment.

BACKGROUND

The San Diego County Health and Human Services Agency (Agency) took the

child into protective custody after mother was arrested for being under the influence of

drugs while walking with the child on an off-ramp of a busy intersection with no

pedestrian walkway. At the time, mother was smoking marijuana on a daily basis and

had cannabis oil in her possession accessible to the child.

The Agency filed a dependency petition on the child's behalf, which resulted in the

initiation of a voluntary case with the child placed in mother's care. The voluntary case

was not successful as mother minimally participated in her voluntary services and

continued to use drugs. In addition, the Agency received reports mother was neglecting

the child, mother and her boyfriend were using drugs while caring for the child, and

mother's boyfriend overdosed in the family home while the child was present.

1 We refer to the parties by the generic terms "mother" and "child" to maintain confidentiality.

2 Further statutory references are to the Welfare and Institutions Code. 2 The Agency subsequently filed another dependency petition alleging mother was

no longer willing and able to provide adequate care and supervision for the child,

rendering the voluntary case ineffective in ameliorating the situation requiring Agency

involvement. The juvenile court sustained the petition, ordered the child placed in

mother's care, and ordered family maintenance services for mother.

Mother did not comply with the family maintenance services and the Agency

could not locate her for several weeks. When the Agency eventually located her, she

appeared to be under the influence of drugs and admitted she had used marijuana. She

also admitted she was homeless and unable to care for the child. The Agency again took

the child into protective custody, but this time detained the child in a licensed foster

home.

The Agency filed a supplemental petition on the child's behalf. The juvenile court

sustained the petition, ordered the child placed in a licensed foster home, and ordered

reunification services for mother. Although mother received more than a year of

reunification services, she failed to comply with her case plan and was unable to maintain

her sobriety. As a result, the court terminated her reunification services and scheduled a

hearing to select and implement a permanent plan for the child (section 366.26 hearing).

The same day the court terminated mother's reunification services, the Agency placed the

child with caregivers who had known the child for over a year through the child's foster

parents and desired to adopt the child.

At the time of the section 366.26 hearing, the child was five years old. The child

lived a little over three years with mother and a little less than two years in foster care.

3 While the child was in foster care, mother had weekly supervised visits with the child.

Before the court terminated reunification services, mother's weekly visits were for two

hours. Unfortunately, mother's visits were not consistent and at least twice there were

large time gaps between visits. Nonetheless, when the visits occurred, mother was

attentive to and interacted positively and affectionately with the child.

After the court terminated reunification services, mother's weekly visits were

reduced to one hour. Her visits became fairly consistent and both mother and the child

enjoyed them. The child referred to mother as "mommy." Mother engaged and played

with the child. She also attempted to redirect and correct the child's behavior when

necessary. The pair loved one another and expressed their mutual affection.

Although the child missed mother and emotionally reacted when the visits ended,

the child was typically not distressed and transitioned easily back to the caregivers. The

child usually did not talk about mother between visits. When the child did talk about

mother, the child referred to mother by both mother's given name and by "mom." The

child had a good relationship with the caregivers and went to them for comfort and

assistance as easily as the child went to mother. The child referred to the primary

caregiver as "mommy," and the child's behavior, comments, and emotional reactions

toward the primary caregiver were not substantially different than those toward mother.

At the section 366.26 hearing, the Agency's adoption expert testified the child was

generally and specifically adoptable. Among the possibilities, the child's caregivers, who

had known the child for over a year and had been caring for the child for about five and a

half months, desired to adopt the child.

4 The Agency's adoption expert opined adoption better served the child's best

interests than guardianship and the child's relationship with mother did not outweigh the

benefits of adoption. The expert explained, "[The child] has developed an attachment

with the current caregivers who provide daily care and support. [The child has] become a

member of a stable and loving family, and guardianship would essentially put [the child]

in the middle of an ongoing battle for [the child's] emotions while [the child] enjoys [the

child's] visits with … mother."

Mother testified she believed adoption would be detrimental to the child because

mother was the child's primary caregiver for most of the child's life and is the only person

who has consistently been there for the child since the child's birth. She believed she has

a strong bond with the child. Consequently, the child would miss her and would

eventually come looking for her.

The parties stipulated the child, if called as a witness, would testify: The child

liked visiting mother. The child would be sad to not see mother again. The child would

be sad to not see the primary caregiver again. The child gave a thumbs up signal to the

idea of staying with the primary caregiver until the child was all grown up. The child

gave a thumbs down signal to the idea of not seeing mother again.

At the conclusion of the section 366.26 hearing, the court found by clear and

convincing evidence the child was adoptable and none of the statutory exceptions to

adoption applied. Consequently, the court terminated mother's parental rights and

selected adoption as the child's permanent plan.

5 DISCUSSION

Mother contends the juvenile court erred by finding the beneficial parent-child

relationship exception did not apply. She asserts she maintained regular visitation and

shared a substantial and positive emotional attachment with child. She also asserts she

occupies a parental role in child's life and the benefits of maintaining the parent-child

relationship outweigh the benefits the child would receive from a permanent home with

new, adoptive parents.

I

"After reunification services have terminated, the focus of a dependency

proceeding shifts from family preservation to promoting the best interest of the child

including the child's interest in a 'placement that is stable, permanent, and that allows the

caretaker to make a full emotional commitment to the child. [Citation.]' [Citation.] The

purpose of a section 366.26 hearing is to 'provide stable permanent homes for' dependent

children. [Citation.] At a section 366.26 hearing the juvenile court has three options: (1)

to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal

guardian for the dependent child; or (3) to order the child be placed in long-term foster

care." (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)

"Adoption, where possible, is the permanent plan preferred by the Legislature."

(In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds a child

cannot be returned to his or her parent and is likely to be adopted if parental rights are

terminated, the court must select adoption as the permanent plan unless the court finds

termination of parental rights would be detrimental to the child under any of the specified

6 statutory exceptions. (§ 366.26, subd. (c)(1)(A), (B)(i)-(vi); In re Erik P. (2002) 104

Cal.App.4th 395, 401.) The parent has the burden of establishing one of the specified

statutory exceptions applies. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a

section 366.26 hearing occurs "after the court has repeatedly found the parent unable to

meet the child's needs, it is only in an extraordinary case that preservation of the parent's

rights will prevail over the Legislature's preference for adoptive placement." (In re

Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)

The beneficial parent-child relationship exception, upon which mother relies,

applies if termination of parental rights would be detrimental to the child because mother

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).) Courts have interpreted

the phrase " 'benefit from continuing the … relationship' " "to mean 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." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J. (2009)

175 Cal.App.4th 922, 936.)

7 A parent asserting this exception cannot meet her burden by showing frequent,

friendly and loving contact with the child or even the existence of a parent-child bond.

(In re L.S. (2014) 230 Cal.App.4th 1183, 1200; In re J.C. (2014) 226 Cal.App.4th 503,

529; In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Beatrice M. (1994) 29

Cal.App.4th 1411, 1418-1419.) Rather, the parent must show the parent serves a parental

role for the child of such quality that severing the parent-child relationship would harm

the child to the point of outweighing the benefits of adoption. (In re L.S., at p. 1199; In

re C.F., at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

"We apply 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 Anthony B. (2015) 239 Cal.App.4th 389, 395.)

II

In this case, the parties do not dispute mother was the child's primary caregiver for

the first few years of the child's life and had consistent one-hour weekly visits with the

child during the six months preceding the section 366.26 hearing. The parties also do not

dispute mother's visits with the child were pleasant and loving, mother was attentive to

the child and the child's needs, the child knew mother as "mommy," the child was excited

when each visit began, and sad when each visit ended. While these facts establish mother

and child loved one another and had an emotional attachment, these facts do not establish

the parent-child relationship was of such a quality that maintaining it outweighs the

benefits of adoption to the child.

8 Other evidence showed mother's role in the child's life was only nominally

parental. When mother was the child's primary caregiver, the child's life was unstable.

The child was exposed to drug use and domestic violence, and mother eventually

admitted she was unable to care for the child. From that point forward, mother remained

unable to care for the child and never progressed to having unsupervised visits with the

child.

Although mother played with and attended to the child during their brief, weekly

supervised visits, the child easily transitioned back to the caregivers when the visits

ended and the child usually did not talk about the mother between visits. Mother

occupied a pleasant place in the child's life, but she did not occupy a role where she

principally, or was among those who principally, fulfilled the child's emotional and

physical needs.

" 'While friendships are important, 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.] Thus, a child should not be deprived of an adoptive parent when the natural

parent has maintained a relationship that may be beneficial to some degree but does not

meet the child's need for a parent. It would make no sense to forgo adoption in order to

preserve parental rights in the absence of a real parental relationship." (Jasmine D.,

supra, 78 Cal.App.4th at p. 1350.)

Accordingly, we conclude mother has not established there was insufficient

evidence to support the court's finding she did not have a beneficial parental relationship

9 with the child. Concomitantly, she has not established the court abused its discretion in

determining there was no compelling reason to find termination of her parental rights

would be detrimental to the child.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

AARON, J.

PRAGER, J.*

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 10