In re N.R. CA4/1

Opinion

Filed 8/21/15 In re N.R. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 N.R., a Minor.

SAN DIEGO COUNTY HEALTH AND D067496 HUMAN SERVICES AGENCY,

Plaintiff and Respondent, (Super. Ct. No. SJ12821)

v.

L.R.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Carol

Isackson, Judge. Affirmed.

SK Appellate Group and Jennifer L. King, under appointment by the Court of

Appeal, for Defendant and Appellant.

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

Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and

Respondent.

Dependency Legal Group and Tilisha Martin for Minor. I.

INTRODUCTION

L.R. appeals following the termination of her parental rights to her minor

daughter, N.R. L.R. contends that the juvenile court erred by declining to apply the

beneficial relationship exception to termination of parental rights (Welf. & Inst. Code,

§ 366.26, subd. (c)(1)(B)(i)).1 We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

N.R. was first placed in protective custody by the San Diego County Health and

Human Services Agency (the Agency) when she was approximately seven months old,

following an incident of domestic violence between her parents, L.R. and F.C., who were

ages 16 and 18, respectively. The Agency's detention report of October 30, 2012,

summarized the incident as involving a physical confrontation between a teenage couple,

while the couple's infant was in close proximity to the violence. According to the

investigating officer, police officers had been to the residence on six prior occasions

during the preceding year due to violence between L.R. and F.C.

As a result of a variety of factors, including L.R.'s unstable housing situation and

her need for juvenile court protection herself, as well as F.C.'s incarceration and his

1 Further statutory references are to the Welfare & Institutions Code unless otherwise indicated. 2 history of untreated drug use and mental health concerns, both N.R. and L.R. were made

dependents of the court, and N.R. was placed in out-of-home care while her parents were

provided with reunification services. As of January 3, 2013, N.R. had been placed in the

home of a nonrelative extended family member, and the court ordered supervised

visitation for both parents.

The Agency's six-month review report issued in June 2013 recommended an

additional six months of reunification services for L.R., but recommended termination of

reunification services for F.C. N.R. continued to be placed in the nonrelative extended

family home. L.R. maintained regular supervised contact with N.R. The review report

noted, however, that L.R. failed to take initiative with respect to N.R., in that she had to

be reminded when to feed N.R. and change her diaper. L.R. appeared frustrated when

N.R. cried, telling her to "shut up" rather than attempting to soothe her. The social

worker arranged for parent-child attachment therapy. N.R.'s paternal grandmother visited

N.R. regularly each month.

At the six-month status review hearing in August 2013, the court terminated F.C.'s

reunification services.2 The court determined that L.R. had made substantive progress

with the provisions of her case plan, and granted her monitored unsupervised visits with

N.R. in the caregiver's home.

The following month, the social worker asked the court to order a skeletal survey

for N.R. N.R. had a bruise on her forehead and an injury to her abdomen, both with

2 The termination of F.C.'s reunification services is not at issue in this appeal. 3 undetermined causes. The social worker sought removal of N.R. from the nonrelative

extended family home after the caregiver failed to notify the Agency of N.R.'s injuries

and provided inconsistent explanations for the injuries. It was later discovered that N.R.

had a healing fracture on her right shoulder, which was not likely to have been caused by

accidental means.

In an addendum report dated October 21, 2013, the social worker recommended

that N.R. be placed with her paternal grandparents. The paternal grandparents were

supportive of having both N.R. and L.R. living together in their home, and would be able

to assist in the baby's care. N.R. was placed in the paternal grandparents' home, and the

court issued an order permitting L.R. to reside in the same placement as N.R

The 12-month permanency report dated December 30, 2013, indicated that L.R.

continued to participate in parent-child attachment therapy. Because N.R. and L.R. were

both living in N.R.'s paternal grandparents' home, the social worker was in the process of

arranging for in-home parenting services for L.R. The social worker recommended that

L.R. receive an additional six months of services. The trial court followed the Agency's

recommendation.

In a status review report filed in April 2014, the social worker noted that L.R.

remained in the paternal grandparents' home, with N.R., and had been living there for

more than five months. The grandmother had been helping L.R. with the baby. L.R. was

set to graduate high school in early June 2014, and planned to take classes at a local

junior college in the fall of 2014.

4 At the 18-month permanency hearing on April 23, 2014, the court placed N.R.

with L.R., and they were offered family maintenance services. The court set a review

hearing for six months later.

Two months after being reunified with L.R., N.R. was once again removed from

L.R.'s care after L.R. was arrested and charged with child endangerment. The charges

arose from an incident in which L.R. and N.R. were passengers in a stolen car. The

driver of the car was pursued by law enforcement and ultimately crashed the vehicle.

Police found drugs in the car, and the driver and L.R. were determined to have been

under the influence of a controlled substance. N.R. was not restrained in a child safety

seat during the pursuit.

The social worker who was assigned to L.R.'s dependency case indicated that L.R.

refused to talk about the car incident that resulted in N.R.'s second removal from her care.

In the social worker's view, L.R. did not seem to be able to appreciate the significance of

the issues that she was facing, including the need to find housing and to keep track of her

finances. The social worker expressed concern about L.R.'s ability to be on her own, take

care of N.R., and make good decisions. The social worker was in the process of

arranging for independent living services for L.R., and hoped that these services would

assist her in making responsible decisions and in living on her own.

The social worker who was assigned to N.R.'s dependency case was of the opinion

that L.R. did not seem to comprehend the severity of the situation in which she put N.R.

by getting into the car with a driver who was under the influence of drugs and not

5 restraining N.R. in a child safety seat. The social worker indicated concern that L.R.'s

lack of insight could lead to further injury or death of the child. The social worker was of

the opinion that N.R. was in need of a safe and stable environment.

In an addendum report dated August 8, 2014, the social worker indicated that L.R.

was living with her former foster mother and planned to remain there until she was

accepted into a teen housing program. L.R. remained a dependent of the juvenile court.

L.R. had been visiting N.R. approximately four times a week at the paternal grandparents'

home. When the social worker spoke with L.R. at this point in time, L.R. indicated that

she felt "she could not handle a child now" and that "maybe this [i.e. N.R. living with her

paternal grandmother] is what is best for her and [N.R.]."

At the hearing on August 8, the trial court removed physical custody of N.R. from

L.R. and found that the services that had been provided to L.R. had been reasonable. The

court terminated reunification services for L.R., and placed N.R. in the care of relatives.

The court scheduled a hearing pursuant to section 366.26 to select and implement a

permanent plan for N.R.

Social worker Alba Cuevas prepared the assessment report dated November 17,

2014. Cuevas reported that N.R. was doing well in her placement with her paternal

grandparents and was developmentally on target. N.R.'s paternal grandparents were

interested in adopting her. Cuevas recommended adoption as the best permanent plan for

N.R.

6 Cuevas reported on N.R.'s interactions with L.R. For example, following N.R.'s

most recent removal from L.R., there were times when N.R. would cry when L.R. said

goodbye. As of December 2014, however, N.R. no longer cried or told L.R. not to leave

at the end of visits. N.R. appeared to be doing well, and did not appear to experience

emotional distress when separating from L.R. Cuevas noted that during the visits, L.R.

would watch television or play with N.R. L.R. would quickly become frustrated when

N.R. did not respond to her, and appeared impatient when N.R. would cry. L.R. would

repeatedly ask N.R. to stop crying.

Cuevas was of the opinion that N.R. viewed L.R. as an older sister, rather than a

parental figure. L.R. had never parented N.R. on her own—rather, she had always relied

on the present or former caregivers to meet N.R.'s daily needs.

Cuevas opined that N.R. was likely to be adopted. She was a healthy, well-

mannered two-year-old, and aside from the relative caregivers who wished to adopt her,

there were more than 100 approved adoptive families seeking to adopt a child like N.R.

N.R.'s paternal grandparents were not interested in legal guardianship, but only adoption,

because they believed that they could provide the maximum emotional security to N.R.

through a plan of adoption.

N.R. referred to her paternal grandparents as "mother" and "father." She had lived

with them for a significant portion of her young life, and she sought them out to meet her

daily needs. N.R. identified her relative caregivers' home as her own home. The relative

7 caregivers indicated that they were willing to permit ongoing contact between N.R. and

her parents if the caregivers were to become N.R.'s adoptive parents.

In an addendum report, Cuevas confirmed her recommendation for adoption. L.R.

and N.R. had continued to have supervised visits, and L.R. and N.R. would watch

television together. N.R. did not cry when it was time to say goodbye. According to

"information reflected in the narratives from the family visitation center," L.R. still

needed help in her interactions with N.R., and the visits often involved N.R. playing on

her own, with L.R. observing her play.

At the contested section 366.26 hearing on February 4, 2015, the court received in

evidence the Agency's reports and heard testimony from Cuevas.

After considering the evidence, the trial court found by clear and convincing

evidence that N.R. was likely to be adopted and that none of the statutory exceptions to

adoption applied. The trial court concluded:

"The court does believe that in general the mother did regularly visit [N.R.], however, the evidence is clear that the relationship between [N.R.] and her mother is not of such weight or benefit to outweigh the benefits of adoption.

"The reports have a theme to them, which is generally that the mother both needs help in parenting the child and that the mother is not very engaged with the child.

"There is little depth or quality to the relationship, although the child clearly has love for her mother and the mother clearly loves [N.R.].

"Not only is there not a parent-child relationship, but at this stage of the proceedings the focus shifts to stability for the child . . . and that weighs heavily.

8 "The court notes that [N.R.] has had five or six placements in her very short life. She was returned to her mother for only a few weeks in April of last year and was removed because of a very unfortunate, but lucky, car chase and accident that [N.R.] was involved in.

"[N.R.] needs stability at this point. She needs to—and the court values that. The court was struck, in addition, in terms of the mother's relationship with the child by the other theme, which was the mother's primary activity with the child during the visitation was looking at television."

The trial court terminated L.R.'s parental rights and referred N.R. to the Agency

for adoptive placement. L.R. filed a timely notice of appeal.

III.

DISCUSSION

L.R. does not contest the finding that N.R. is adoptable; rather she contends that

the court erred in finding that the beneficial parent-child relationship exception of section

366.26, subdivision (c)(1)(B)(i), did not apply to preclude the termination of her parental

rights.

A. Legal Standards

If a dependent child is adoptable, the court must terminate parental rights at the

section 366.26 hearing unless the parent proves the existence of a statutory exception to

adoption. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) An

exception exists if "[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).)

9 This court has interpreted "the 'benefit from continuing the parent[-]child

relationship' exception 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." (In re Autumn H. (1994) 27 Cal.App.4th 567,

575.)

The existence of a beneficial relationship is determined by considering "[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 . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Ultimately, this

determination " 'calls for the juvenile court to determine the importance of the

relationship in terms of the detrimental impact that its severance can be expected to have

on the child and to weigh that against the benefit to the child of adoption' . . . ." (In re

J.C. (2014) 226 Cal.App.4th 503,531.)

"A parent asserting the parental benefit exception has the burden of establishing

that exception by a preponderance of the evidence. [Citation.] It is not enough to show

that the parent and child have a friendly and loving relationship. [Citation.] ' "Interaction

10 between [a] natural parent and child will always confer some incidental benefit to the

child. . . ." ' [Citation. ] For the exception to apply, 'a parental relationship is

necessary[.]' [Citation.] ' "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.]' " (In re J.C., supra, 226 Cal.App.4th at p. 529.)

In reviewing a trial court's termination of a parent's rights on appeal, we apply the

substantial evidence standard of review to the factual issue of whether there is a

beneficial parent-child relationship, and the abuse of discretion standard to the

determination of whether there is a compelling reason for finding that termination of

parental rights would be detrimental to the child. (In re J.C., supra, 226 Cal.App.4th at

pp. 530-531; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314-1315.) In applying the substantial evidence standard of review,

we do not consider the credibility of witnesses, attempt to resolve conflicts in the

evidence or weigh the evidence; rather, we draw all reasonable inferences in support of

the findings, view the record favorably to the juvenile court's order and affirm the order

even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L.

(1994) 24 Cal.App.4th 596, 610; Amanda H. v. Superior Court (2008) 166 Cal.App.4th

1340, 1346.)

11 B. Analysis

The trial court found that L.R. met the first prong of the beneficial relationship

exception—i.e., that L.R. maintained regular visitation and contact with N.R. The court

concluded, however, that L.R. failed to establish the second prong of the exception—i.e.,

that L.R. had a parent-child relationship with N.R. that was so beneficial that terminating

L.R.'s parental rights would be detrimental to N.R. (§ 366.26, subd. (c)(1)(B)(i)).

The trial court's determination that L.R. failed to establish that she occupied a

parental role in N.R.'s life is supported by substantial evidence. Again, " '[n]o matter

how loving and frequent the contact, and notwithstanding the existence of an "emotional

bond" with the child, "the parents must show that they occupy 'a parental role' in the

child's life." [Citations.] The relationship that gives rise to this exception to the statutory

preference for adoption "characteristically aris[es] from day-to-day interaction,

companionship and shared experiences. Day-to-day contact is not necessarily required,

although it is typical in a parent-child relationship." [Citation.]' " (In re G.B. (2014) 227

Cal.App.4th 1147, 1165.)

N.R., who was just two years old when L.R.'s parental rights were terminated,

referred to her caretakers, her paternal grandparents, as "mother" and "father." N.R. had

been living in their home "almost all of her life," identifies that home as her own home,

and looked to her paternal grandparents to have her daily needs met.

Although there were reports that N.R. would cry at the end of visits with L.R. in

the early stages of the dependency, the social worker reported that N.R. did not once cry

12 at the end of a visit with L.R. during the few months prior to the termination hearing. In

addition, even though N.R. would refer to L.R. as "mommy," the social worker was of

the opinion that "the relationship the mother shares with [N.R.] does not rise to the level

of demonstrating a significant parental role." The social worker also observed that "it

appear[s] that [N.R.] sees her mother as an older sister who plays with her." As the social

worker pointed out, L.R. "has never parented her child on her own," but "has always

relied o[n] [N.R.'s] current and previous caregiver[s] to get [N.R.'s] daily needs met." In

addition, L.R. did not attend N.R.'s medical appointments.

The evidence thus supports the trial court's conclusion that L.R. did not occupy a

parental role in N.R.'s life, despite their relatively frequent and consistent contact.

However, even if we were to assume that L.R. did occupy a parental role in N.R.'s life,

we would nevertheless affirm on the ground that L.R. has not established that the trial

court abused its discretion in concluding that the detrimental impact on N.R. of

terminating L.R.'s parental rights would not outweigh the benefits to N.R. of adoption.

Again, N.R. was approximately seven months old when she was initially removed

from her parents' care. From that time through the time the trial court ordered L.R.'s

parental rights terminated when N.R. was two years old, N.R. had been in at least three

different placements, including one with L.R. that ended after only approximately five

weeks. Thus, for more than half of N.R.'s short life, she was not in L.R.'s custody.

Although at one point in time L.R. had been granted unsupervised visits with N.R., and

had managed to progress to the point that N.R. was placed with her, that placement ended

13 because of a very serious and potentially life-threatening incident in which L.R. showed

extremely poor judgment. After that incident, L.R.'s interaction with N.R. involved

supervised two- or three-hour visits twice a week.

In addition, the social worker believed that N.R. was likely to be adopted. She

was a healthy, well-mannered two-year-old girl who had relative caregivers who were

pursuing adoption. In addition, at the time the trial court made its findings, there were

more than 100 approved adoptive families wanting to adopt a child like N.R.

We acknowledge that there was evidence, highlighted by L.R. on appeal, that her

visits with N.R. generally went well, that they shared an affectionate relationship, and

that N.R. seemed to enjoy spending time with L.R. However, this evidence falls short of

establishing that the trial court abused its discretion in concluding that the well-being

N.R. would gain from being in a permanent home with adoptive parents outweighed any

detriment N.R. might suffer from the termination of L.R.'s parental rights. (See In re

K.P., supra, 203 Cal.App.4th at pp. 622-623.) The fact that L.R. and N.R. appeared to

have a "friendly and loving relationship" is not enough for the exception to be invoked.

14 IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

McDONALD, Acting P. J.

O'ROURKE, J.