Opinion
D075908
11-21-2019
In re H.T. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. K.H., Defendant and Appellant.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant K.H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 515939B-C) APPEAL from orders of the Superior Court of San Diego County, Michael Imhoff, Commissioner. Affirmed. Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant K.H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Jesica N. Fellman, Deputy Counsel for Plaintiff and Respondent.
K.H. appeals the juvenile court orders terminating her parental rights under Welfare and Institutions Code section 322.26 to her minor children, H.T. and A.T. K.H. contends the court erred by finding the beneficial parent-child relationship exception to adoption does not apply. We reject this contention and affirm the orders.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
K.H. has a long history with the child welfare system. Her parental rights to an older daughter were terminated in 2007 because of drug abuse. This appeal is K.H.'s sixth challenge to actions taken by the trial court in this dependency proceeding. Additional facts leading to the initial removal of H.T. and A.T and the termination of K.H.'s reunification services are set forth in two prior opinions of this court, In re H.T. (Sept. 24, 2018 D073771) [nonpub. opn.] and In re H.T. (Aug. 6, 2019 D075413) [nonpub. opn.].
Beginning in 2014, when H.T. and A.T. were four- and two-years old respectively, the San Diego County Health and Human Services Agency (Agency) fielded repeated reports about K.H.'s inadequate care of the minors but did not take any action until she was arrested in early 2017. On February 21, 2017, law enforcement searched the hotel room of K.H.'s boyfriend. The minors were in the room, where police discovered over 160 grams of methamphetamine, marijuana, and drug paraphernalia within the children's reach. At that point, the minors remained in K.H.'s care. However, two days later, K.H. was pulled over in a stolen truck with the minors inside. K.H. was arrested and the minors were taken into protective custody. They were placed with a foster family and the Agency filed petitions on their behalf under section 300, subdivision (b)(1) alleging the minors had suffered or were at risk to suffer serious physical harm or illness due to K.H.'s criminal conduct, drug abuse, and neglect.
The minors' father did not participate in reunification efforts, and has not appealed the termination of his parental rights.
K.H. contested the court's jurisdiction and denied she had engaged in any conduct that placed the children at risk. At the jurisdiction and disposition hearing the court sustained the petitions and continued the minors' placement in foster care. The court also ordered reunification services for K.H. Shortly after, she moved into a drug-free shelter, enrolled in a parenting education program, and started therapy. Within weeks, however, K.H. was terminated from both the parenting program and therapy, and she left the shelter.
During the first months of K.H.'s reunification efforts she also struggled to establish appropriate relationships with the foster parents and with education and medical professionals working with the minors. After K.H. lashed out against medical personnel and interfered with appointments, the Agency recommended she be precluded from participating in the minors' medical and dental care. For the majority of the first review period of the dependency, K.H. continued to resist participation in reunification services or admit that she bore any responsibility for the dependency proceeding.
For their part, the minors were both enrolled in early education services because of a number of behavioral concerns. A.T.'s preschool teacher reported that he had aggressive and concerning behavior, including daily temper tantrums and aggression towards other children, which noticeably increased after visitation with K.H. K.H. did maintain regular supervised visitation with the children during the review period, but monitors reported that she had trouble setting appropriate boundaries and frequently talked to the children about the dependency proceeding. The minors' foster parents were attentive to their behavioral challenges, and diligent in obtaining services for both minors. Before the first review hearing, the foster parents also sought de facto parent status. K.H. opposed the request, arguing that the foster parents were interfering in her reunification efforts.
In its report for the six-month review hearing, the Agency recommended the minors continue placement in foster care and that the court order continued reunification services for K.H. K.H. challenged the recommendation, but at the contested hearing, the juvenile court adopted the Agency's position and continued the minors' placement with their foster parents. At a later hearing, the court also granted the foster parents de facto status.
Thereafter, K.H. committed herself to reunification and began making significant progress. She was regularly attending individual therapy and completed a parenting program. She also regularly had clean drug tests and her visitation with the minors remained consistent. The Agency twice increased her visitation time during the review period. The minors were doing well in their foster placement, but the family's social worker and court appointed special advocate (CASA) remained concerned about A.T.'s behavior, particularly after his interactions with K.H. The Agency and CASA were also concerned about the strained relationship between K.H. and the foster mother.
At the 12-month review hearing, the juvenile court adopted the Agency's recommendation to continue reunification services for K.H. and found she had "made significant progress in resolving the problems that led to the [minors'] removal." Shortly after the hearing, however, K.H.'s reunification efforts were halted when she was arrested in connection with an attempted burglary and found with methamphetamine in her possession. Because of the arrest, the Agency filed petitions under section 388 seeking to terminate reunification services and to set a permanency planning hearing for the minors under section 366.26.
In its report supporting the petition, the Agency explained that after the 12-month review hearing, it was working with K.H. to plan a 60-day trial visit for the minors to stay with her at the home she was sharing with her older daughter and her daughter's paternal grandmother, who was that daughter's adoptive parent. After an overnight visit that was supposed to take place at the same home, the Agency learned that K.H. had taken the minors to a hotel without notifying the Agency of her changed plans. A.T. also sustained a burn on his arm from using a hairdryer without supervision. When she was questioned by the social worker about the incident, K.H. said they had not gone to the approved home for the visit because the paternal grandmother and her husband had a contagious skin disease. The relatives, however, did not corroborate the story and told the social worker that K.H. had not been living with them as she had represented.
After her arrest, K.H. missed several meetings with the social worker. Before an in-person meeting could be scheduled, the worker notified K.H. that the Agency intended to petition the court to terminate her reunification services. The social worker finally met with K.H. during a visit with the minors. The visit started positively, but towards the end K.H. became upset and told the minors that the social worker was going to take them away from her. When the social worker tried to refocus the visit, K.H. became irate and the children became distraught. At one point, K.H. cursed at the social worker, grabbed her arm and pushed her out of the way, bruising the social worker. K.H. eventually left and the minors were returned to their foster home. The next day, the foster parents reported that both children were upset by the interaction, and A.T. was dismissed from his summer camp program for hitting other children and a teacher.
At the initial hearing on the section 388 petitions, the court made a prima facie finding on the petitions, ordered all visits to be supervised, and set an evidentiary hearing. Before the contested hearing, K.H. was arrested again, this time for robbery. By this point, A.T. had started kindergarten, but was exhibiting severe emotional and behavioral problems at school. K.H., however, refused to agree to additional assessment of A.T. to determine how to help him succeed at school. Because of K.H.'s refusal to cooperate with school professionals, the Agency sought to terminate her educational rights. The minors' foster mother reported that while H.T. was doing well in her first-grade class, she was regressing in her behavior at home and was anxious.
The contested evidentiary hearing on the Agency's section 388 petitions coincided with the 18-month review hearing. In its reports for the hearing, the Agency reiterated its recommendation that the court terminate K.H.'s parental rights and set a permanency planning hearing. In the weeks leading to the hearing, K.H. had regular supervised visitation with the minors, which went relatively well. The minors' foster parents and school officials reported that A.T. continued to have behavioral issues at home and school. The minors' foster mother was attending kindergarten with him for several hours each day to help regulate his behavior. Both minors were in individual therapy and the entire foster family also attended therapy together with the same therapist.
At the combined hearing on the 18-month review and the Agency's section 388 petitions, the court admitted the Agency's reports into evidence and heard the testimony of the family's social worker. After argument, the court noted that it had been hopeful about reunification at the 12-month review hearing, but that despite completing services K.H. had shown poor judgment in changing plans for her overnight visitation without notifying the Agency and in engaging in conduct that resulted in further arrests. The court then found by clear and convincing evidence that returning the minors to K.H.'s care would be detrimental and terminated her reunification services. The court also ordered that K.H.'s visits be supervised and set a permanency planning hearing. At a subsequent hearing the court limited K.H.'s educational rights for the minors.
K.H. appealed this decision, and this court affirmed the order on August 6, 2019.
After her reunification services were terminated, K.H. missed several visits with the minors and at each visit she did attend, the family's social worker had to ask her not to discuss the case with them. The social worker also reported that K.H. did not demonstrate a parental role, and during one visit appeared to be under the influence of drugs. The minors' CASA, who was given educational rights over the minors, reported that A.T.'s teacher indicated that his behavior problems escalated before and after visits with K.H. and around his therapy sessions. The minors' foster mother also reported that both minors exhibited behavior problems for a few days following visits with K.H.
In its report for the section 366.26 hearing, the Agency recommended termination of parental rights and freeing the children for adoption. K.H. requested that the matter be set for trial, so she could seek a lesser permanent plan. At the status conference before the contested hearing, K.H. filed a section 388 petition seeking return of the children or reinstatement of reunification services. After argument by the parties, the juvenile court summarily denied K.H.'s petition, finding that she had not established prima facie evidence of changed circumstances or that the request was in the best interest of the minors.
The Agency's final report before the trial noted that K.H.'s visitation had continued to deteriorate. K.H. attended just two of six scheduled visits and had become inconsistent with her phone calls with the minors. K.H. did not parent the minors during the visits, and at one visit lashed out at the supervising social worker when they attempted to redirect K.H. Both minors also continued to act out and experience anxiety after their interactions with K.H.
A month before the permanency planning hearing, the minors' therapist completed an exercise to assess their feelings about adoption. A.T., who was five at the time, told the therapist that he would feel safe living with K.H. and that he wanted to live with her. A.T. also said he liked his foster parents and older foster brother. H.T., who was then seven, said she wanted to live with her foster family. At a child and family team meeting in which K.H. and the minors were present, K.H. acted appropriately but left the meeting before it was over. The minors did not react negatively when K.H. left and never asked if she would return.
At the contested hearing, the juvenile court first received the Agency's reports and accompanying documents into evidence. The social worker testified about the number of families available to adopt minors like H.T. and A.T., and the minors' recent visitation with K.H. The visits were primarily positive, but the minors had no difficulty separating from K.H. and did not seek contact with K.H. outside of scheduled visits and calls. K.H. continued to need reminders during visits not to discuss the case with the minors.
K.H. appeared telephonically and testified primarily about the reasons for her missed visitation. She stated that all but one of the missed visits were because of transportation problems. K.H. testified that during the visits she did have, the interaction with minors was usually awkward at first but then they dropped into their familiar family dynamic.
The court also received into evidence the stipulated testimony of the minors. A.T.'s statement read that he "kind of wants to be adopted. He feels kind of sad that he won't see his mother again. He wants to live with [K.H.] He likes his visits and wants them to keep going. He feels sad when his mother misses visits. He feels comfortable and safe in his foster home." H.T. stated: "She loves her mom. When asked if she misses her mom she states 'too hard' referring to answering the question. In response to how do you feel about not seeing your mother gain, she states too hard. When asked how she feels about missed visits she states too hard. When asked if she wants to be adopted she states too hard. When asked who she wants to live with she states too hard to talk about. She feels comfortable and safe in her foster home."
After the presentation of evidence, counsel for the Agency and K.H. gave closing statements. The Agency's attorney noted the evidence showed the minors were both generally adoptable and specifically adoptable since their foster parents were committed to adoption. The Agency's attorney also asserted the evidence showed K.H. had been inconsistent in her recent visitation with the minors and that there was an affectionate relationship between the minors and K.H., but not a bond that if severed would be detrimental to them.
K.H.'s counsel asserted that the evidence concerning the minors' adoptability was inaccurate because the Agency had downplayed some of the minors' behavioral challenges in its adoption study. K.H.'s attorney asserted there was a strong bond between the minors and K.H., as evidenced by K.H.'s visitation throughout the dependency and by the minors' stipulated testimony. Counsel argued a permanent plan other than adoption was in the minors' best interest. Minors' counsel joined in the arguments of the Agency and asserted the benefits of adoption outweighed the benefits of maintaining the minors' relationship with K.H.
After arguments were complete, the court issued its ruling finding by clear and convincing evidence that the minors were both generally and specifically adoptable. The court rejected the assertion by K.H.'s counsel that the adoption study was flawed and found there were 65 homes available to adopt a child with H.T.'s characteristics, 77 with A.T.'s characteristics, and 45 homes willing to adopt a sibling set with the minors' characteristics. The court also found that K.H. had maintained regular visitation with the minors but that she did not occupy a parental role in their life, and the permanency that would be afforded by adoption outweighed any benefit of maintaining the parent-child relationship. The court ordered parental rights terminated and freed the minors for adoption. K.H. timely appealed.
DISCUSSION
I
Governing Legal Principles
After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the permanency planning hearing, the court has three options: (1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"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, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of the specified 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 the existence of any circumstance that constitutes an exception to termination of parental rights." (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a permanency planning 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.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption preference if termination of parental rights 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." Courts have interpreted the phrase " 'benefit from continuing the . . . relationship' " to refer to a parent-child relationship that "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.)
The parent asserting the exception will not meet his or her burden by showing the existence of a "friendly and loving relationship," an emotional bond with the parent, or pleasant, even frequent, visits. (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 (Beatrice M.); In re L.S. (2014) 230 Cal.App.4th 1183, 1200 ["To avoid termination of parental rights, it is not enough to show that a parent-child bond exists"].) Rather, there must be a parental role in the child's life, resulting in a significant, positive emotional attachment from the child to parent that if severed would cause harm to the child. (In re C.F., supra, at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; see also In re J.C., supra, at p. 529 [observing that interaction between a natural parent and child will always confer some incidental benefit to the child and for the exception to apply, " 'a parental relationship is necessary' "].)
"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.) " 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." [Citation.] "It is judicial action and not judicial reasoning which is the subject of review. . . ." ' " (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)
The standard of review that applies to the beneficial parental relationship exception to adoption is currently pending before the California Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Pending further guidance, we apply the standard described herein. --------
II
Analysis
K.H.'s sole contention on appeal is that the juvenile court erred in finding the beneficial parent-child relationship exception to adoption does not apply. She asserts the evidence before the court showed that severing her relationship with the minors would be detrimental to them and that she maintained consistent contact with them after her reunification services were terminated. To support this argument, she relies on the minors' stipulated testimony and the evidence that the minors' behavior deteriorated after her visits with them.
As an initial matter, the Agency does not dispute that K.H. maintained regular visitation with the minors. We accept this concession and agree that the record supports the juvenile court's finding in this regard, although the consistency of visitation did deteriorate after reunification services were terminated. With respect to the second prong of the beneficial parent-child relationship exception analysis, the record does not support K.H.'s assertion that the court erred by finding that severing the parent-child relationship would not be detrimental to the minors.
At the time of the selection and implementation hearing, H.T. and A.T. had been out of K.H.'s care for more than two years. The minors had experienced significant trauma in K.H.'s care prior to and as a result of their removal. They exhibited that trauma in their behavior, but by the time of the permanency planning hearing both had made significant positive strides in their foster home. While the minors did experience behavioral setbacks after visits with K.H., they did not seek out additional time with her. Further, the record shows the minors depended on their foster parents to meet their daily physical, medical, developmental and emotional needs. They were bonded with their foster parents and foster sibling, and their foster parents were strongly committed to adopting them together.
Contrary to K.H.'s assertion on appeal, this evidence supported the juvenile court's finding that the minors would not be harmed if her parental rights were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; see also In re Scott B., 188 Cal.App.4th 452, 470.) Although the record shows that the minors had affection for K.H., often enjoyed their time with her, and that these young children were understandably conflicted about the adoption process, the evidence also showed that K.H.'s continued, sporadic visits with the minors were detrimental. K.H.'s presence and antagonistic posture with the other adults involved in the dependency exacerbated the minors' underlying trauma and was the impetus for behavioral issues around the time of contact with K.H. K.H. argues that the minors' behavior shows they "would suffer great harm by losing their mother who they loved and had a significant, positive emotional attachment to." This evidence, however, also supports the opposite conclusion, that K.H.'s inconsistent visitation, as well as her behavior during the visitation, was detrimental to the children.
The juvenile court was required to assess whether the nature of the minors' relationship with K.H. was of such positive value that its benefits outweighed the benefits of adoption. The evidence before the juvenile court supported its conclusion that severing the parental relationship would not result in significant harm to the minors. "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Adoption is the only option that provides these young children with the stability and permanence they need. (See Beatrice M., supra, 29 Cal.App.4th at p. 1419 [Legislature has decreed guardianship is not in best interests of children who cannot be returned to their parents; only adoption affords the most permanent and secure alternative]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference to preserve family unit does not override best interests of minors in stability and security of adoptive home].)
The court was entitled to accept the Agency's opinion, supported by the evidence, that the benefits of adoption outweighed the benefits of maintaining a relationship with K.H. We cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In re Casey D., 70 Cal.App.4th 38, 53.) In sum, the evidence supported the juvenile court's finding that adoption would not "deprive [the minors] of a substantial, positive emotional attachment such that [they] would be greatly harmed . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Further, the juvenile court did not abuse its discretion by concluding their placement in a stable, permanent home outweighed any potential benefit of maintaining K.H.'s parental rights.
DISPOSITION
The orders are affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.