Opinion
B299832
04-03-2020
In re P.V., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.V., Defendant and Appellant.
Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP00763A) APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Affirmed. Emery El Habiby, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
M.V. (Mother) challenges the juvenile court's order terminating parental rights over her daughter P.V. We consider whether Mother carried her burden to demonstrate there was a compelling reason to refrain from terminating her parental rights, specifically, the asserted existence of a strong parent-child relationship such that terminating her rights would be detrimental to P.V.
I. BACKGROUND
In January 2018, the Los Angeles County Department of Children and Family Services (the Department) received a report of child abuse concerning P.V. (then nine months old) and her older sister. The Department's investigation revealed Mother had been discharged from a transitional housing program because drug paraphernalia (a methamphetamine pipe) was found in her room. Mother denied the pipe was hers, denied using drugs, and submitted to a drug test. The drug test was positive for methamphetamine, as was another drug test two weeks later. The Department also learned P.V. and her sister were past due for medical examinations and immunizations.
At the time, the older sister C.V. was a ward of the court. The subsequent termination of parental rights with respect to C.V. was the subject of an earlier appeal.
The Department filed a dependency petition alleging, among other things, Mother had a nine-year history of substance abuse and her current abuse of methamphetamine placed P.V. at risk of serious physical harm. The juvenile court later sustained the allegations against Mother, directed the Department to provide Mother with family reunification services, ordered her to enroll in a drug treatment program and undergo weekly drug testing, and limited Mother to monitored visitation.
In advance of the six-month review hearing, the Department reported P.V., who had been placed in the same home as her older sister, was "happy and healthy" and "bonded to [her foster parents] and comfortable in their presence." As for Mother, she was consistent in attending the weekly two-hour monitored visits with P.V. and was observed to be loving toward the child. But she also continued to struggle with substance abuse issues. She had been discharged from a drug treatment program for testing positive for methamphetamine, failed to show up for most of her drug tests, had been arrested for possession of drug paraphernalia, continued to associate with substance abusers, and admitted to using crystal methamphetamine two weeks before the Department submitted its report. In addition, Mother was homeless and living in a friend's car.
At the review hearing, the juvenile court found by clear and convincing evidence Mother had "failed to regularly participate in and make substantive progress in the court-ordered disposition plan." Because Mother's compliance with the case plan was "nonexistent," the court further found there was "not a substantial probability nor likelihood of return to . . . Mother in the next six months." As a result, the juvenile court terminated reunification services for Mother.
In preparation for the next juvenile court hearing, the Department reported Mother continued to be consistent in attending her monitored visits with P.V., who "is bonded to [Mother] and enjoys spending time with her." During her weekly visits, Mother would read to P.V., feed her, and help her identify colors. With regard to the foster parents, the Department advised there were no barriers to their adoption of P.V. if parental rights were terminated: the study of the foster parents' home had been completed and approved, the foster parents were ready and willing to adopt P.V., and P.V. was "strongly bonded" to the foster parents, calling them "mommy" and "daddy" and running to them when they entered the room.
In another report filed in advance of a Welfare and Institutions Code section 366.26 hearing to consider termination of Mother's parental rights, the Department advised that except for a one-month period when she was incarcerated for attempting to steal an automobile, Mother continued to be consistent in her visitation with P.V. During those weekly visits Mother played with P.V., changed her diaper, fed her, and watched movies with her. The Department also reiterated that the foster parents, who had been caring for P.V. for more than a year, remained ready and willing to adopt the child.
Undesignated statutory references that follow are to the Welfare and Institutions Code.
The juvenile court held the section 366.26 hearing in August 2019; P.W. was by then two years old and she had been out of Mother's custody since February 2018. Mother did not introduce any evidence at the section 366.26 hearing (relying instead on the Department's reporting), but she argued the court should refrain from terminating her parental rights because the parent-child relationship exception applied, i.e., she had consistently visited her daughter and occupied a parental role such that terminating her rights would be detrimental to P.V. Counsel for P.V. and the Department argued in favor of termination of parental rights. They emphasized P.V. had not been in Mother's care for over half her (P.V.'s) life. The Department and minor's counsel conceded Mother had been consistent in her visitation with P.V., but noted those visits were limited to monitored visits at the Department's offices and the bond between Mother and P.V. was not a parental bond and did not outweigh the benefits to P.V. from adoption.
At the rights termination hearing, the juvenile court found Mother had visited consistently with P.V. but her actions during those limited visits did not rise to a parental role and relationship that outweighed the benefits to P.V. from adoption. As the court put it: "Mother changes diapers, works on the child's colors with her, [and] reads to her, . . . to the extent that that is a parental role and relationship, the court definitely cannot find that it's a parental role and relationship to the level that outweighs the benefits of permanence in adoption for this child." The court found Mother's interactions with P.V. to be as much the actions of a "friendly visitor" as that of a parent. The juvenile court ordered Mother's parental rights terminated and set adoption as P.V.'s permanent plan.
II. DISCUSSION
The juvenile court did not err in finding the parent-child relationship exception did not apply. Mother had the burden to show she maintained regular visitation and contact with P.V. and occupied a parental role of such significance that P.V. would benefit from continuing the relationship and be greatly harmed if it were severed. The juvenile court correctly concluded Mother's showing as to the latter of these two elements was insufficient.
A. Termination of Parental Rights and the Parent-Child Relationship Exception
"The section 366.26 hearing is a critical late stage in a dependency proceeding. The child has been under juvenile court jurisdiction for an extended period following the dispositional order, and the court has held one or more review hearings to consider a return to parental custody. (§ 366.21.) At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child. . . . If adoption is likely, the court is required to terminate parental rights, unless specified circumstances compel a finding that termination would be detrimental to the child. (§ 366.26(c)(1); In re Celine R. (2003) 31 Cal.4th 45, 53[ ].)" (In re S.B. (2009) 46 Cal.4th 529, 532, fn. omitted.)
Mother invokes one of these statutory circumstances, the parent-child relationship exception, codified at section 366.26, subdivision (c)(1)(B)(i). In relevant part, that statute provides: "[T]he court shall terminate parental rights unless . . . [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c).) Mother had the burden to prove the exception applied. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.); In re K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.).)
To meet her burden, Mother was required to do more than show P.V. would receive some benefit from continuing a relationship maintained during periods of visitation. (In re Angel B. (2002) 97 Cal.App.4th 454, 466 ["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"] (Angel B.).) Even if the parent-child contact has been loving and frequent, and notwithstanding the existence of an "'emotional bond'" with the child, Mother must show she occupies "a parental role" in P.V.'s life. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300 (Noah G.); accord, K.P., supra, 203 Cal.App.4th at 621.) For this reason, a parent-child relationship that satisfies the section 366.26, subdivision (c)(1)(B)(i) exception characteristically (though not necessarily) arises from day-to-day contact between the parent and child, and it is difficult for a parent who has not progressed beyond monitored visitation to show the exception is applicable. (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).)
We review the trial court's decision on the applicability of the parent-child exception by employing a hybrid standard of review: "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." (Anthony B., supra, 239 Cal.App.4th at 395; see K.P., supra, 203 Cal.App.4th at 621-622 [discussing the hybrid standard].) When deciding whether Mother has carried her burden, we take into account the 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 the parent and child, and the child's particular needs. (In re Jason J. (2009) 175 Cal.App.4th 922, 937-938; Angel B., supra, 97 Cal.App.4th at 467.)
B. Termination of Parental Rights Was Not Error
Substantial evidence supports the juvenile court's determination that the requisite statutorily described parent-child relationship did not exist between Mother and P.V. The only evidence on Mother's role and relationship with P.V. came from the Department's reports. Although those reports documented Mother's love and affection for P.V., they did not establish she occupied a parental rolein P.V.'s life. (Casey D., supra, 70 Cal.App.4th at 52 ["The social worker had 'not seen the strong reciprocal relationship emanating from Casey towards her mother and father that would indicate that she sees these people as anything more than part-time day care providers'"]; accord, In re Derek W. (1999) 73 Cal.App.4th 823, 827 [affirming order terminating parental rights where the interactions with the father were "pleasant and emotionally significant" to the child, but bore "no resemblance to the sort of consistent, daily nurturing that marks a parental relationship"].) Furthermore, throughout the dependency proceedings Mother never progressed beyond monitored visits with P.V. at Department offices (due to her recurrent struggles with substance abuse) and this further illustrates the requisite parent-child relationship did not exist. (Casey D., supra, at 51 ["Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship"]; see also Noah G., supra, 247 Cal.App.4th at 1302 [in considering the parent-child exception "the juvenile court could properly focus on the mother's unresolved substance addiction issues because the children became dependents of the court due to her drug abuse"].)
In addition, the juvenile court's determination that termination of parental rights would not be detrimental to P.V. was not an abuse of discretion. P.V. was still very young at the time of the rights termination hearing and, at the same time, she had been out of Mother's custody for roughly half her young life. In addition, and in stark contrast to Mother's dangerous, uncertain, and troubled circumstances, the foster parents presented a safe, stable, and nurturing home for P.V. Thus, while there are good indications P.V. had some bond with Mother as a result of their regular visitation, it was not the sort of parental bond that could or should forestall termination of parental rights in favor of a beneficial adoptive home. (K.P., supra, 203 Cal.App.4th at 622-623 ["While the weekly two-hour visits between K.P. and his mother may have been pleasant for both parties, there was no evidence in the record (beyond [mother's] stated belief) that termination of the parent-child relationship would be detrimental to K.P. or that the relationship conferred benefits to K.P. more significant than the permanency and stability offered by adoption"]; In re Marcelo B. (2012) 209 Cal.App.4th 635, 644 ["The parents demonstrated that they have a warm and affectionate relationship with their son. Because they continue to abuse alcohol[,] . . . however, they have not demonstrated an ability to provide Marcelo, over the long term, with a stable, safe and loving home environment"].)
DISPOSITION
The juvenile court's order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
MOOR, J.