Filed 9/14/15 In re R.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 R.L. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E063177
Plaintiff and Respondent, (Super.Ct.Nos. J240470 & J240471 & J252942) v. OPINION E.Y.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and
Respondent.
Jean-Rene Basle, County Counsel, Adam Ebright, Deputy County Counsel, for
Plaintiff and Respondent.
1 Defendant and appellant E.Y. (mother) appeals from the juvenile court’s order
terminating her parental rights under Welfare and Institutions Code1 section 366.26,
subdivision (c)(1)(B(i). For the reasons set forth below, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Mother is the biological mother of four children: B.L. (a girl, born Sept. 2010—
now four years old), R.L. (a girl, born Aug. 2011—now three years old), S.L. (a girl, born
Nov. 2012—now two years old), and Z.R.2 R.L. and B.L. came to the attention of San
Bernardino County Children and Family Services (CFS) in August 2011; R.L. was born
positive for methamphetamine and marijuana exposure. R.L. was immediately
transferred to Loma Linda Medical Center due to respiratory distress and withdrawal
symptoms. Mother, who was then 30 years old, admitted that she had been using
methamphetamines since she was 17 years old. She had briefly stopped using drugs
during her pregnancy with B.L., but used drugs throughout her pregnancy with R.L.
S.L. (father),3 who had B.L. with him, initially attempted to evade the social
worker to prevent her from seeing B.L. During this time, father fabricated documents
indicating that B.L. and R.L. were under a guardianship with a relative. However, it was
quickly determined that the documents were neither legal nor valid. Once the social
1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.
2Z.R. resided with a relative outside of California and is not a subject of this dependency.
3 Father is not a party to this appeal.
2 worker was able to interview mother and father (collectively, “parents”), she discovered
that both were substance abusers and had long histories of drug-related criminal charges.
The social worker took B.L. and R.L. into protective custody.
The social worker prepared section 300 petitions alleging failure to protect under
section 300, subdivision (b), due to the impacts of parents’ long-standing substance abuse
problems. At the detention hearing, the juvenile court found a prima facie case that B.L.
and R.L. came under section 300 and ordered weekly visitation.
The social worker prepared a jurisdictional/dispositional report recommending that
the court find the section 300 allegations true and order reunification services for parents.
The social worker interviewed parents about their substance abuse history. Mother stated
that she used methamphetamine daily while pregnant with R.L. until she was
approximately 23 weeks pregnant. After that, she cut back to about once a month.
Mother had unsuccessfully tried to stop using methamphetamine in 2008 through a
residential treatment program. Father had relapsed after completing two treatment
programs. Parents seemed to understand the root of their substance abuse problems and
wanted to address them. The social worker characterized the prognosis for successful
reunification as “guarded” because, although parents appeared to have a healthy
attachment to B.L. and R.L., they used methamphetamine on a daily basis. It was unclear
whether parents truly understood how much damage they had caused to B.L. and R.L.
due to their drug use.
Meanwhile, R.L. remained in the intensive care unit and B.L. was placed in a
foster home. B.L. was extremely tiny and was significantly underweight for her age. She
3 did not appear to be developmentally on track. Additional testing was necessary to
identify the extent of B.L.’s developmental delays.
At the September 20, 2011, jurisdictional/dispositional hearing, the juvenile court
accepted waivers from both parents and informed them that reunification services would
be limited to six months because of the young ages of B.L. and R.L. The court sustained
the petitions and ordered reunification services for parents.
The social worker prepared a status review report dated March 20, 2012,
indicating that parents had failed to make significant progress over the previous six
months. They had missed several drug tests and mother was terminated from her
inpatient drug treatment program. Parents were unemployed, were living with a relative,
and had no means of transportation. However, mother had enrolled in a second drug
treatment program and began to attend her other classes. The social worker was hopeful
that reunification was still possible if parents could complete and benefit from services,
remain sober, avoid arrest and maintain stable transportation and housing. Parents
continued to attend weekly visitation. The social worker observed that, aside from some
inappropriate behavior by parents during visits, B.L., R.L. and parents appeared loving,
attentive and bonded to one another. At the six-month review hearing, the court found
that parents’ progress had been minimal but continued reunification services for an
additional six months.
The social worker prepared a status review report for the 12-month review
hearing. The social worker recommended additional reunification services for parents.
Parents continued to work on their case plans and provided clean drug tests. They had
4 moved into a sober living home and continued to participate in weekly visits. At the
September 20, 2012, hearing, the court found that parents had made moderate progress in
their case plans and continued services for an additional six months. The court also
authorized overnight and weekend visits with approval.
The 18-month review report recommended that B.L. and R.L. be returned to
parents under family maintenance. Parents had completed the majority of their case plan,
remained sober, and had successful overnight/weekend visits. In November 2012,
mother gave birth to another child, S.L. It was determined that S.L. could remain in
parents’ custody without court supervision.
At the February 26, 2013, hearing, the court found that parents had made
substantial progress in their case plans and returned B.L. and R.L. to their care under a
family maintenance plan.
B.L., R.L. and S.L. (collectively, “the children”) remained with parents for the
next eight months under family maintenance but parents’ progress soon began to take a
turn for the worse. Parents had to move out of their sober living home due to financial
difficulties and they began to miss many of their random drug test appointments.
Between April 2013 and January 2014, the social worker received four referrals through
the Child Abuse Hotline alleging that both parents were using methamphetamine again.
On September 4, 2013, the Children’s Advocacy Group filed a section 388 petition to
have B.L. and R.L. removed from parents, alleging that parents had stopped complying
with the case plan, failed to drug test regularly, and were subjecting B.L. and R.L. to
5 unsafe living conditions. The petition was ultimately withdrawn. On January 22, 2014,
CFS received a referral alleging that both parents had been altering their drug tests.
On January 24, 2014, the social worker filed a section 300 petition as to S.L. and
section 387 petitions as to R.L. and B.L. The petitions alleged that ongoing drug use and
domestic violence placed the children at risk and that the previous disposition had not
been effective. The social worker prepared a new detention report explaining that on
October 28, 2013, she received the first referral alleging that parents were using the
children’s urine to pass their drug tests. The testing site could not confirm this allegation.
However, on January 16, 2014, the testing facility caught both parents trying to alter their
urine test; parents were ejected. On January 17, 2014, after the social worker requested
an on-demand test, the staff heard a popping sound and a suspicious flowing sound,
which did not sound like the natural flow of urine, while mother was submitting her
sample. Additionally, the social worker was concerned about domestic violence in the
home over parents’ recent separation. The social worker concluded that removal from
the home was necessary due to the young age of the children, the reports of recent
domestic violence, and the reports of parents altering their urine tests. At the January 27,
2014, detention hearing the court found that the previous disposition had not been
effective in protecting the children and found a prima facie case for detention out of the
home.
The social worker prepared jurisdictional/dispositional reports recommending that
reunification services be denied for both parents and that a section 366.26 hearing be set.
After the children’s removal, mother went back to the testing facility and threatened the
6 staff members because she blamed them for causing her kids to be taken away. Father
admitted that he had recently been arrested for possession of drug paraphernalia and that
he had been using methamphetamine for several weeks. The social worker provided
referrals for an outpatient drug treatment program, parenting classes, anger management
classes, and counseling; parents failed to participate in any of them. Mother had been
testing clean, but on February 17, 2014, she was arrested for felony burglary and
possession of a controlled substance after attempting to shoplift from Walmart with the
maternal grandmother. Mother admitted that she had relapsed into methamphetamine
use.
At the April 15, 2014, jurisdictional/dispositional hearing, mother testified briefly
about her recent arrest and the incidences of domestic violence. She stated that she had
obtained the methamphetamine because she was upset about losing her kids, but claimed
that she did not use them. Mother also testified that she wanted her kids back and that
she had recently enrolled in a substance abuse class. The juvenile court found that the
children came under section 300, subdivision (b), terminated reunification services for
R.L. and B.L., and set a section 366.26 hearing to select a permanent placement plan. As
to S.L., the court denied reunification services pursuant to section 361.5, subdivision
(b)(10), and set the section 366.26 hearing to track with the older siblings.
The social worker prepared a section 366.26 report recommending the permanent
plan of adoption and requesting additional time to complete the out-of-state placement
with maternal relatives.
7 Over the next seven months, mother was arrested three times for possession of
methamphetamine and was placed on felony probation. The arrests caused mother to
miss several visits and the visits that did occur were problematic. The caregiver reported
that mother would try to talk to the children about her new boyfriend and tell the children
that they were “stolen” and she would get them back home soon. B.L. started to have
behavioral problems before and after visits with mother; she hit herself, pulled her hair,
and had incontinence, enuresis, defiance and sleeping problems. B.L. and R.L. started
saying that they did not want visits with mother when they knew a visit was approaching.
Once the children were settled in their prospective adoptive home, the social
worker prepared an addendum report dated February 17, 2015, recommending that the
adoption be implemented. The children appeared happy in their prospective adoptive
home and the behavioral problems that they had displayed when they were initially
placed were improving quickly. The prospective adoptive mother reported that the
children seemed happy and were always laughing amongst themselves. The prospective
adoptive parents were committed to adopting the children and reported that the children
had adjusted well and were a good fit for their family. The prospective adoptive father
placed the children on his health insurance and the girls were scheduled for enrollment in
a preschool that specialized in working with young children who had been traumatized.
The social worker set up phone visits between mother and the children three times
a week at a designated time. The calls, however, started to have a negative effect on the
children. After the first call, B.L. began to hit herself while at the dinner table; it left
marks on her forehead. The children were reluctant to talk to mother. When they did
8 agree to talk, mother would bring up inappropriate topics and tell the children that she
was going to come visit them without CFS involvement or approval.
The social worker concluded that the children were appropriate for adoption and
asked the court to free them for adoption. The prospective adoptive parents were
committed to meeting the children’s needs and raising them into adulthood. The social
worker opined that the children would benefit from having parents who had their best
interests at heart and were willing to meet the children’s physical, educational, social,
emotional, and psychological needs.
At the time of the section 366.26 hearing, mother was incarcerated but was present
at the hearing. Mother testified that she had tried to visit the children as much as she was
able to. However, after the children were placed in the prospective adoptive home,
mother was only allowed phone visits. The children’s attorney reported that the
prospective adoptive parents were extremely committed to the children and that the
children were thriving in their care. The children called the prospective adoptive parents
“mom” and “dad” and were forming close attachments with them. The children’s
counsel noted that the children’s therapist recommended immediately establishing
permanency for the children.
The juvenile court found that the children were likely to be adopted and ordered
adoption as the permanent plan. The court noted that the children were reluctant to speak
to mother and they were bonded with the prospective adoptive parents. The court
expressly found that parents had not met their burden in establishing the parental bond
exception in the case and terminated parental rights.
9 DISCUSSION
A. THE PARENTAL BENEFIT EXCEPTON DID NOT APPLY
Mother claims that the juvenile court erred when it terminated her parental rights
because the parental benefit exception applied.
In general, at a section 366.26 hearing, if the juvenile court finds that a child is
adoptable it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule,
however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) &
(c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies
when “termination would be detrimental to the child” 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).)
“When applying the beneficial parent-child relationship exception, the court
balances the strength and quality of the parent-child relationship in a tenuous placement
against the security and sense of belonging that a stable family would confer on the child.
If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
“‘[F]or the exception to apply, the emotional attachment between the child and
parent must be that of parent and child rather than one of being a friendly visitor or
friendly nonparent relative, such as an aunt.’” (In re Jason J. (2009) 175 Cal.App.4th
922, 938.) The parent must show more than frequent and loving contact or pleasant
10 visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) “‘A biological parent who
has failed to reunify with an adoptable child may not derail adoption merely by showing
the child would derive some benefit from continuing a relationship maintained during
periods of visitation with the parent. [Citation.] A child who has been adjudged a
dependent of the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some degree, but
that does not meet the child’s need for a parent.’” (Jason J., at p. 937.)
“The parent contesting the termination of parental rights bears the burden of
showing both regular visitation and contact and the benefit to the child in maintaining the
parent-child relationship.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This
court must affirm a juvenile court’s rejection of these exceptions if the ruling is supported
by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review
“the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and
reasonable inferences to uphold the court’s ruling.” (In re S.B. (2008) 164 Cal.App.4th
289, 297 (S.B.).) Because Mother had the burden of proof, we must affirm unless there
was “indisputable evidence [in her favor, which] no reasonable trier of fact could have
rejected.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, mother did not meet her burden of proving that the beneficial parental
relationship exception applied. Mother failed to meet the first requirement of the
exception—that she regularly visited the children. (§ 366.26, subd. (c)(1)(B)(i).) Here,
mother visited consistently during the first 18 months of reunification services. However,
once mother relapsed into methamphetamine use and criminal activity, she failed to
11 maintain consistent visitation. Although the record reflects that mother did visit when
possible, she was arrested three times after reunification failed, which interfered with her
ability to visit with the children. Additionally, the visits became problematic and the
children began displaying behavioral problems when the visits occurred.
Even if mother visited regularly and consistently, the beneficial parental
relationship exception requires both regular visitation and benefit to the child. Here,
mother has failed to establish benefit to the children.
The second requirement for the parental benefit exception to apply requires that
mother prove that the children would benefit from continuing the relationship. (§ 366.26,
subd. (c)(1)(B)(i).) “The existence of this relationship is determined by ‘[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 Jerome D. (2000) 84 Cal.App.4th 1200, 1206, citing In re Autumn H.
(1994) 27 Cal.App.4th 567.)
In this case, at the time of the section 366.26 hearing, the oldest child, B.L., was
only four years old; R.L. and S.L. were three and two, respectively. When B.L. was
initially removed she was only 11 months old; when S.L. was initially removed she was
only one year old. R.L. was removed at birth. Therefore, B.L. only spent 11 months of
her life in mother’s care before CFS became involved, and three years out of mother’s
custody. R.L. spent her entire life either in the custody of CFS or under its supervision.
S.L. spent approximately a year in mother’s custody while the other siblings’ cases were
12 ongoing before she also had to be removed. Accordingly, the majority of the children’s
lives were spent out of mother’s custody.
Although the record contains multiple references to the positive interactions that
parents had during their period of sobriety and while receiving reunification services, the
interactions outside of this window were decidedly negative. Before the involvement of
CFS, during the 11 months that B.L. was in mother’s custody, the parents used
methamphetamine on a daily basis. As a result, R.L. was born positive for
methamphetamine and rushed to the intensive care unit with respiratory problems. When
B.L. was removed, she was extremely underweight and appeared to have developmental
problems.
Likewise, after reunification efforts failed, visitation became sporadic and the
visits that did occur became problematic. Mother would discuss inappropriate subjects
and tell the children that they were “stolen.” B.L. started to have behavioral problems
before and after visits with mother, including, hitting herself, hair pulling, incontinence,
enuresis, defiance, and sleeping problems. B.L. and R.L. started to say that they did not
want to visit with mother. Mother was arrested three times for possession of
methamphetamine, was placed on felony probation, and was still incarcerated at the time
of the section 366.26 hearing. The children began to stabilize in their prospective
adoptive placement but once phone visits were established, the children started
demonstrating behavioral problems again. After the first phone call, B.L. began hitting
herself while at the dinner table and leaving marks on her forehead. The other children
were reluctant to talk to mother.
13 Based on the above, most of the interaction mother had with the children did not
show that the children would benefit from continuing the relationship with mother.
Furthermore, the children had no special physical or psychological needs other
than those caused by mother. Instead, they had the normal needs for a safe, stable and
loving environment. Unfortunately, after two years of services, mother was unable to
provide that for her children. On the other hand, the children were enjoying that type of
environment in their prospective adoptive home. The prospective adoptive parents were
committed to raising the children into adulthood and willing to meet their physical,
educational, social, emotional and psychological needs. The children appeared happy in
their home and the behavioral problems that they displayed when they were initially
placed were improving quickly. The prospective adoptive parents were committed to
adopting the children and reported that the children had adjusted well and were a good fit
for their family. By the time of the section 366.26 hearing, the children were calling
them “mom” and “dad” and were forming close attachments. The children’s therapist
recommended immediately establishing permanency for the children through adoption.
In her reply brief, mother relies on S.B., supra, 164 Cal.App.4th 289, in which the
appellate court concluded that the juvenile court erred in declining to apply the beneficial
relationship exception. (Id. at p. 301.)
“The S.B. case has been criticized by other appellate courts for its suggestion the
exception applies if the child merely ‘derived some measure of benefit’ from the parental
relationship. (S.B., supra, 164 Cal.App.4th at p. 301.) The same appellate court that
authored the S.B. case cautioned in In re Jason J.[, supra,] 175 Cal.App.4th [at p.] 937
14 [. . .]: ‘The S.B. opinion must be viewed in light of its particular facts. It does not, of
course, stand for the proposition that a termination order is subject to reversal whenever
there is “some measure of benefit” in continued contact between parent and child.’ More
recently, the same court emphasized in In re C.F. (2011) 193 Cal.App.4th 549, 558-559
[. . .] that the S.B. case must be ‘confined to its extraordinary facts. [The S.B. case] does
not support the proposition a parent may establish the parent-child beneficial relationship
exception by merely showing the child derives some measure of benefit from maintaining
parental contact.’” (In re J.C. (2014) 226 Cal.App.4th 503, 530.)
Moreover, S.B. is distinguishable. In S.B., the child was in her father’s care until
she was three years old. (S.B., supra, 164 Cal.App.4th at p. 293.) When she was
removed, the father “immediately recognized that his drug use was untenable.” (Id. at p.
298.) He started services, “complied with ‘every aspect’ of his case plan” and placed the
child’s needs above his own. (Ibid.) The child tried to leave with the father when the
visits were over. (Id. at p. 294.) Here, in contrast, B.L. only spent 11 months of her life
in mother’s care before CFS became involved, and three years out of mother’s custody.
R.L. spent her entire life either in the custody of CFS or under its supervision in a family
maintenance plan. S.L. spent approximately one year in mother’s custody while the other
siblings’ cases were ongoing before she had to be removed. Hence, unlike the child in
S.B., the majority of the children’s lives, if not all, were spent out of mother’s custody.
Moreover, although mother initially made progress in her reunification plans, she
relapsed after the children were returned to her care under a family maintenance plan.
Mother started to use methamphetamine again, was arrested for possession of
15 methamphetamine on three occasions and placed on felony probation. After these
incidents, the visits between the children and mother became problematic. B.L. and R.L.
began to say that they did not want to visit with mother. Unlike the father in S.B., mother
failed to place the children’s needs above her own. Therefore, we find that mother’s
reliance on S.B., supra, to be misplaced.
Based on the above, we agree with the trial court that mother failed to meet her
burden of showing that the parental benefit exception applied.
In sum, mother has the burden to establish the applicability of the beneficial
parental relationship exception in the lower court; on appeal, she has the burden of
showing that the juvenile court’s ruling was an abuse of discretion. We conclude that
mother has failed to meet this burden.
DISPOSITION
The judgment terminating mother’s parental right is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.