Opinion
D076041
11-07-2019
In re M.G., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.B. et al., Defendants and Appellants.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant M.B. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant J.G. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel and Emily Harlan, Deputy County 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ4209) APPEALS from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant M.B. Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant J.G. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
M.B. (Mother) and J.G. (Father) (collectively parents) appeal the termination of their parental rights to M.G. They contend the juvenile court erroneously failed to apply the beneficial parent-child relationship exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) [hereafter, section 366.26(c)(1)(B)(i)]. We affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Background Leading to Dependency
Mother and Father are M.G.'s parents. At birth, M.G. tested presumptively positive for amphetamine. Three days later, she tested positive for methamphetamine. M.G. remained hospitalized until released to foster care four days after she was born. M.G., now two years old, has never lived with Mother or Father.
Initially, Mother denied drug use, telling hospital staff that she "accidentally" ate edibles laced with marijuana and that M.G.'s maternal grandmother (grandmother) and uncle smoked marijuana in her presence. Mother refused information on substance abuse programs. Father also denied drug use and claimed he did not know Mother was using drugs.
After the San Diego County Health and Human Services Agency (Agency) found roaches crawling throughout the family's home, Mother admitted smoking methamphetamine two weeks before M.G. was born.
B. Dependency
The juvenile court ordered that M.G. be detained in foster care. The court also ordered reunification services for parents, supervised visitation, and required parents to drug test.
By the time of the jurisdictional hearing about three weeks later, both parents tested positive for methamphetamine and amphetamine. Mother admitted smoking methamphetamine seven to ten times during pregnancy and using methamphetamine with others at grandmother's residence. Mother also admitted that to avoid being drug tested during pregnancy, she sought no prenatal care.
Despite his positive drug test, Father denied recent methamphetamine use and claimed the positive result reflected use "years" prior. However, the level of methamphetamine detected indicated "prolonged exposure through manufacturing or distributing." Father's urine test was negative.
A positive hair test and a negative urine test are not necessarily inconsistent. Hair provides a cumulative record of approximately the past 90 days of drug use; however, a urine sample shows only the last 72 hours of drug use.
Mother's case plan required that she stay free from illegal drugs, submit to random drug tests, test negative on all drug tests, regularly attend drug treatment sessions, have only excused absences from drug treatment programs, and show her ability to live free from drug dependency. The Agency informed Mother that "[a no-show] . . . test will be considered a positive test."
The Agency directed Father to enroll in a drug treatment program starting in early December 2017. His case plan also required that he submit to random drug tests, test negative, and have only excused absences from the program.
At a December 2017 hearing, the juvenile court admonished parents to submit to drug tests, stating:
"Make sure you're testing. Don't miss. Because I think the Agency is really looking for a track record, so to speak, of Mom's ability to remain clean and sober and Dad's ability to pick up on clues or red flags that Mom might be using so he can protect the child in the event that she is. And then I'll just encourage both parents to continue in the programs."
Meanwhile, M.G. was comfortable in foster care. The Agency encouraged Mother and Father to contact the caregivers to coordinate supervised visits.
In January 2018, the Agency reported that parents had not returned numerous phone calls and had moved without informing the Agency of their new address. As a result, the Agency was unable to have the parents drug test, and parents had no contact with M.G.'s caregivers for over a month.
The juvenile court declared M.G. a dependent, removed her from parents' custody, and after determining no relatives were available to care for her, placed M.G. in foster care. The court ordered parents "to comply with the [case] plan" and admonished them that failure to make substantive progress in their court-ordered treatment programs "can result in the early termination of reunification services with possible termination of your parental rights."
At the six-month review hearing initially set for June 2018, the Agency recommended that the court terminate reunification services. Mother claimed she had been sober since December 26, 2018; however, her hair tested positive for methamphetamine in March, April, and May 2018—with increasing drug levels each month. Her urine test was also positive for methamphetamine, and Mother missed four other urine tests. Nevertheless, Mother denied drug use and attributed the positive test results to second-hand exposure at a "friend's home" and grandmother's residence.
A missed drug test is "properly considered the equivalent of a positive test result . . . ." (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.)
Mother had supervised visits with M.G. three times each week. The visits went well and Mother was attentive and affectionate with M.G. However, by the six-month review period, Mother had missed 10 scheduled visits.
Father had not communicated with the Agency since early January 2018. He did not enroll in drug treatment and did not submit to drug tests. He was inconsistent with visiting M.G., missing nine planned visits.
M.G. was doing well in foster care. She was developmentally on track, very active, social, and playful.
By August 2018, Mother again failed to appear for a drug test and was not returning the social worker's calls. Mother also had not allowed the Agency to inspect her home. Although urine tests were negative, Mother's June 29, 2018 hair test was positive for methamphetamine. Mother was unable to give the Agency a "clear explanation" of why she was testing positive, but claimed she was not using methamphetamine.
From March to August 2018, Mother had good supervised visits with M.G. However, Father missed three visits in the same period.
In August 2018, Father admitted using methamphetamine. Father had not made any progress on his case plan and had not attended drug treatment. He was evasive about where he was living.
Mother told the social worker that she and Father separated, and said she was staying at the paternal aunt's home. When the social worker told the aunt that parents claimed to be living with her, she replied, "[T]hey are lying."
At the review hearing in August 2018, the Agency recommended that the court terminate services for Father because he had not had any contact with the Agency in six months, had used methamphetamine within the past 30 days, did not attend the drug treatment program required in his case plan, and has not provided a current residence address. The Agency also recommended that the court terminate services for Mother because she continued to test positive for methamphetamine and amphetamine. Mother also admitted being in grandmother's home where others used drugs.
The juvenile court found that the Agency had complied with the case plan and that "reasonable services have been provided to both parents." The court ordered continued reunification services to the 12-month review hearing. The court amended the parents' case plans to require them to provide contact information and to give the Agency monthly home access. The court again admonished parents to refrain from drug use.
After the hearing, the Agency placed M.G. with different foster parents because her existing caregivers could not provide long-term care. This new placement was successful. M.G. remained happy, outgoing, and well-behaved. She was "thriving" in her new foster home.
Between August and December 2018, Mother missed or cancelled 21 supervised visits with M.G. Mother also did not attend any of M.G.'s medical appointments, and she never asked the foster parents about them. During the same time period, Mother failed to inform the Agency of her residence address, despite the court's order that she do so. As a result, the Agency could not inspect the family home.
On December 13, 2018, the social worker made an unannounced visit to a residence where she believed Mother was staying. A large trash pile emitting a "heavy stench" was in the front yard. An occupant greeted the social worker and said parents had been living there for two weeks.
As the social worker was about to leave, Mother drove up to the residence in her car. Mother told the social worker she had been living there only two days, and that Father did not live there. Mother said she was "dropped" from drug treatment and refused an offered sober living program because she "did not want to." Mother was also terminated from dependency drug court after three unexcused absences. Mother's eyes were glossy and heavy—but she denied using drugs. Mother was unable to explain why she continued to test positive for methamphetamine. She also failed to drug test when requested in December 2018.
Father had also failed to progress in his case plan. He failed to drug test when requested, and had not communicated with the Agency for four months.
The juvenile court found that parents had not complied with their respective case plans. The court terminated services and set a section 366.26 hearing.
In May 2019, the Agency recommended that the court terminate parental rights and order a permanent plan of adoption. M.G. had resided with her new foster parents since August 2018 and they wanted to adopt her. M.G. was healthy and met all developmental milestones. She was comfortable with her foster parents, and the Agency had no concerns about her welfare with them.
Mother had several supervised visits with M.G. between March and May 2019. Mother was affectionate; she and M.G. kissed. At the end of one visit, Mother changed M.G.'s diaper. At another visit in April 2019, M.G. immediately went to Mother; they hugged and kissed. At a visit a week later, Mother asked M.G. to call her "mama," and M.G. did so and kissed her. The social worker scheduled additional weekly visits in March and April 2019; however, Mother failed to appear for three of them.
Father attended one of Mother's supervised visits in May 2019. M.G. smiled at Father and was comfortable with him. She was saying "mama and papa" and was constantly smiling. Father provided the social worker with his telephone number, but no address, stating he does not live with mother and has no permanent address.
The Agency recommended adoption as M.G.'s permanent plan to give her "the security, permanency, and stability needed to foster her well-being for the years to come." The social worker explained that Mother and Father had not taken a parental role in M.G.'s life:
"[M.G.] was removed from the parents' care at birth and has been in foster care since . . . she was released from the hospital. [M.G.] and the parents have not been able to establish a significant parent-child relationship, the parents have not visited [M.G.] consistently throughout the case, and the parents have not taken a parental role in [M.G.'s] life. [M.G.'s] daily needs are met by the caregivers, not the parents. The parents' visits never progressed to unsupervised. Therefore, the Agency does not believe a parent-child relationship[] exist in this case that outweighs the benefits of adoption. It would not be detrimental to terminate parental rights as [M.G.] does not see her parents as parental figures and has no significant parent-child relationship with them. [M.G.] presents as a happy child who continues to thrive in the parents' absence."
At the section 366.26 hearing, the juvenile court received the Agency's report in evidence without objection. No witnesses testified and Mother and Father rested without offering any additional evidence. In closing argument, without citing any legal authority and without referring to any evidence, Mother's attorney asserted that "the child parent-bond exception applies." The court terminated parental rights and referred M.G. to the Agency for adoption.
DISCUSSION
Mother asserts that the beneficial parent-child relationship exception to adoption in section 366.26(c)(1)(B)(i) precludes terminating her parental rights. Mother contends she established the requisite relationship with M.G. by consistently affectionate visits in which she displayed parenting skills by bringing diapers, formula, and other age- appropriate items. Mother further asserts that M.G. was happy visiting with her, called her "mama," kissed her, and even the foster parents wanted to help her reunify. Father joins in these arguments and asserts that if Mother prevails, his parental rights should also be reinstated.
We ignore Mother's references to the foster parents' statements contained in trial exhibit 1, a letter purportedly written by them in August 2018. The juvenile court sustained the Agency's objection to that exhibit and on appeal, Mother does not claim that ruling was erroneous. Mother's brief incorrectly states this exhibit was received in evidence.
A. The Beneficial Parent-Child Relationship Exception
" '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 full emotional commitment to the child." ' " (In re Jason J. (2009) 175 Cal.App.4th 922, 935 (Jason J.).) At the section 366.26 selection and implementation hearing, the juvenile court has three options: (1) Terminate parental rights and order adoption as the permanent plan, (2) appoint a legal guardian for the dependent child, or (3) order the child placed in long-term foster care. (Jason J., at pp. 935-936) "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
At a section 366.26 hearing, once the juvenile court finds the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan unless the parent shows that terminating parental rights would be detrimental to the child under one of the enumerated exceptions in section 366.26, subdivision (c). (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)
The beneficial parent-child relationship provision in section 366.26, subdivision (c)(1)(B)(i) is one such exception. Under that statute, the juvenile court should not terminate parental rights where it finds a "compelling reason for determining that 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." (Ibid.)
The parent bears the burden of establishing this exception applies. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) That burden is very difficult to meet. "Because a section 366.26 hearing occurs only 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." (Jasmine D., at p. 1350.) Indeed, one court characterized this issue as perhaps being "the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
The beneficial parent-child relationship exception has two elements. The first is the existence of a parental relationship, not merely a relationship like that of a friendly visitor or familiar nonparent relative. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Thus, "the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 (Dakota H.).) "[T]he parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent." (Ibid.) "That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor relationship with the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).)
Second, in cases where the requisite parental relationship exists, the juvenile court must find that that 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
B. The 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." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
Appellate courts are divided over the appropriate standard to apply in reviewing an order under section 366.26(c)(1)(B)(i). Some courts apply the substantial evidence standard; others apply abuse of discretion, and still others have adopted a mixture of both, as this court does—applying the substantial evidence standard to factual determinations and abuse of discretion to the juvenile court's determination of whether termination would be detrimental. This issue is currently pending in the California Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. Our conclusion in this case would be the same under any of these standards. As Mother concedes, the practical differences between them in this context are not significant. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) --------
C. The Juvenile Court Properly Found That the Beneficial Parent-Child Relationship Exception Did Not Apply
Substantial evidence supports the juvenile court's determination that Mother failed to establish that a beneficial parent-child relationship existed. Mother's visitation with M.G. was inconsistent throughout the case. During the first six-month review period, Mother missed 10 scheduled visits. From August 2018 to December 2018, Mother missed or cancelled 21 visits, including all of her scheduled visits in September. Mother continued missing three scheduled visits right up to the section 366.26 hearing. Mother also did not attend any of M.G.'s medical appointments, despite receiving prior notice of them from the caregivers. Nor did Mother show any interest in the results of those medical exams. Thus, the record supports the Agency's conclusion and the court's implied finding that Mother's visitation was "sporadic." "Sporadic visitation is insufficient to satisfy the first prong [of the parent-child relationship] exception to adoption." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643 (Marcelo B.).)
In arguing for a contrary result, Mother asserts she met M.G.'s needs during her visits. Mother emphasizes that M.G. was affectionate and happy during the visits. However, Mother never progressed from supervised visitation and, therefore, never was solely responsible for satisfying M.G.'s needs, even for a few hours at a time. Although Mother's visits were positive experiences for M.G., "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Accordingly, under section 366.26(c)(1)(B)(i), Mother is required to show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) The exception requires proof of a parental relationship, not merely a relationship that is beneficial to some degree but does not meet the child's need for a parent. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Although day-to-day contact is not necessarily required, courts evaluate whether the parent has the type of relationship that typically arises from day-to-day interaction, companionship, and shared experiences. (Casey D., supra, 70 Cal.App.4th at p. 51.) Mother offered no affirmative evidence at all—no bonding study or other testimony showing she occupied a parental role in M.G.'s life. (In re C.F. (2011) 193 Cal.App.4th 549, 557 [termination upheld when there was no bonding study and visit supervisors did not observe a strong bond between the parent and child].) Although Mother's visits were positive experiences for M.G., the juvenile court could reasonably conclude that Mother's influence in M.G.'s life was no greater than that of a regular babysitter or familiar relative. Mother cites nothing showing that M.G. was so bonded that she experienced distress separating from Mother at the conclusion of visits. To the contrary, M.G. clung to her maternal aunt when parents arrived for one particular visit.
Moreover, Mother did not address the very reason M.G. was removed: methamphetamine abuse. The juvenile court terminated reunification services in large part because Mother consistently tested positive for methamphetamine, missed several drug tests, and dropped out of her drug treatment program. The juvenile court could reasonably conclude that Mother's methamphetamine addiction precluded the existence of the requisite parental relationship.
Additionally, even assuming that a parent-child relationship existed, the juvenile court's orders would still have to be affirmed because the court did not abuse its discretion in balancing the benefits of that relationship against M.G.'s well-being in an adoptive home. "[I]f an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan." (Dakota H., supra, 132 Cal.App.4th at p. 229.) In analogous cases involving ongoing parental substance abuse, courts consistently find the beneficial parent-child relationship exception to be inapplicable. (See, e.g., In re Collin E. (2018) 25 Cal.App.5th 647, 664 [finding no abuse of discretion in determining parent-child relationship exception did not apply where parents did not stop using narcotics nor participate in any treatment programs]; Noah G. (2016) 247 Cal.App.4th 1292, 1304 [citing mother's continuing drug abuse as "evidence continuing the parent-child relationship would not be beneficial"]; Marcelo B., supra, 209 Cal.App.4th at pp. 644-645 [upholding the juvenile court's refusal to apply the beneficial relationship exception, despite the parents "warm and affectionate relationship with their son" because of parents' alcohol addiction, stating, "We are sorry for the parents who, notwithstanding their alcoholism, love their son. This is not enough. . . . The Legislature has determined that the protection of the child is paramount."].) Similarly here, Mother's methamphetamine use coupled with her refusal to comply with her drug treatment plan supports the juvenile court's determination that M.G. would not suffer detriment from terminating the parent-child relationship, and that maintaining the relationship would not promote her well-beingto such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." ' " (Id. at p. 644.)
Mother also contends her case is similar to In re E.T. (2018) 31 Cal.App.5th 68 (E.T.), which held the juvenile court erroneously failed to apply the beneficial parent-child relationship exception. (Id. at p. 70.) There, twin minors were removed from the mother due to the mother's history of mental health issues and drug addiction, but returned after a year of reunification services. (Id. at p. 71.) After the mother self-reported relapsing into drug use, she voluntarily placed the minors with foster parents. (Ibid.) At the section 366.26 hearing, the juvenile court concluded the beneficial parent-child relationship exception did not apply and terminated the mother's parental rights. (E.T., at p. 75.) The appellate court reversed, concluding the mother's regular contact and visits with the minors, "coupled with [her] efforts during the dependency," demonstrated that the minors would benefit from continuing their relationship with the mother. (Id. p. 76.) The court noted that the mother "continued to participate in programs designed to maintain her sobriety and make her a better parent. She has consistently tested negative for drugs, and during the dependency remained in drug treatment, took classes in life skills, parenting, cognitive behavior, criminal thinking, anger management and children of alcoholics and addicts." (Id. at p. 77.) The court further noted that the minors, who had spent almost half their lives with their mother, were " 'very tied' " to her and terminating their familial relationship would cause them great harm. (Ibid.)
E.T. is distinguishable. The mother in E.T. self-reported that she was again using drugs and voluntarily placed the minors in foster care. (E.T., supra, 31 Cal.App.5th at p. 71.) In contrast here, the court involuntarily removed M.G. from Mother's care due to Mother's substance abuse and her failure to maintain a safe and sanitary home. Unlike the mother in E.T., here, Mother was provided with reunification services but did not significantly participate, demonstrated by her positive methamphetamine tests with increasing drug levels from July through October 2018. While the mother in E.T. communicated with her social worker about her relapse into drug abuse and developed a relapse prevention plan and a safety plan for the minors (id. at pp. 71, 74), here, Mother did the opposite by refusing to cooperate with the Agency to allow home visits and drug tests. The mother in E.T. regularly participated in AA, Narcotics Anonymous, and other classes to better herself (id. at p. 74); here, Mother dropped out of drug treatment and refused an offer for a sober living home. The minors in E.T. exhibited anxiety, uncertainty, and fear and sometimes acted out when separated from the mother. (Id. at pp. 72-73.) Here, M.G. was doing "very well and thriving with her foster parents" who reported that they wanted to adopt her.
The juvenile court properly found there was no beneficial parental relationship sufficient to overcome the statutory preference for adoption.
DISPOSITION
The section 366.26 order terminating parental rights and placing M.G. for adoption is affirmed.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.