Opinion
A150678
11-09-2017
In re M.B., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. JV84440)
Appellant A.D. (Mother) contends the trial court erred in failing to apply the beneficial parental and sibling relationship exceptions to termination of parental rights to M.B. (Minor) at a February 2017 hearing pursuant to Welfare and Institutions Code section 366.26. We affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Mother has a son and three daughters; the youngest is Minor, born July 2007. In March 2015, the four children were taken into protective custody after Mother was arrested for physically abusing Minor's older brother. The Alameda County Social Services Agency filed a section 300 juvenile dependency petition on behalf of each of the children, alleging Mother punched her son and hit him with a glass cooktop lid, Mother and Minor's alleged father had a history of domestic violence in front of the children, and Minor's alleged father had a history of mental illness and substance abuse. In April, an amended petition was filed and sustained by the juvenile court. Minor's case was transferred to San Mateo County for disposition and respondent San Mateo County Human Services Agency (Agency) took charge of the case.
Minor's alleged father and her siblings are not involved in the present appeal. We deny Mother's July 7, 2017 request for judicial notice of the dispositions in Minor's siblings' dependency cases. As explained later in this decision, Mother forfeited any claim based on the beneficial sibling relationship exception and she has not identified any other relevance to the documents at issue.
The Agency's June 2015 disposition report related that Minor said she wanted to live with Mother and her siblings. Minor was "in the most distress" of the children and had begun crisis counseling. The disposition hearing was continued to August so that Minor's alleged father, who was incarcerated, could attend the hearing. In an addendum report, the Agency informed the court that all of the children's caregivers expressed concern that Mother was "letting others care for her children without making sufficient progress in resolving the issues that led to the children being detained." Minor continued to express that she missed and wanted to live with Mother. At the August disposition hearing, the juvenile court found Mother had made only minimal progress on her case plan. The court ordered weekly supervised visitation and reasonable sibling visitation.
The Agency's report for the February 2016 six-month status review hearing reported that Mother was homeless and being housed by different family friends, and she had not made significant progress on her mental health or anger management issues. Minor was healthy and developmentally on target, and she reported doing well in school. Minor would see Mother during weekly visits and at Minor and her sisters' basketball games. Following visits, Minor cried and asked when she could live with Mother. The six-month review hearing was continued to March and, in an addendum report, the Agency described Mother's failure to intervene during several incidents in which Minor's sisters were mean to Minor during supervised visits. Mother blamed her son for the dependency proceedings and asked if she could "get out of anger management."
The addendum report for the six-month review hearing also referenced a March 2016 progress report from Therapeutic Visitation Services (TVS), regarding services that began in October 2015. The authors observed that Mother and the children "clearly have strong attachments;" "[d]uring the visits [Mother] is inclusive, nurturing, and positive;" "the current separation is emotionally challenging for the children;" Minor "especially craves [M]other's attention;" and the children "benefit from having [Mother] involved in their lives." Nevertheless, the authors wrote that they "observed the mother's relationship with the children to resemble a peer-to-peer relationship, involving joking around, minor teasing, and the mother's tendency to ingratiate herself with the children." The report elaborated, "[t]he mother's obsequious nature is her way of connecting with the children, however she struggles with the role of authority and taking the primary care taker position." The report recommended that Mother "could benefit from taking a more authoritative role with her children, instead of relating to them as if she were their peer." The authors also commented, "[w]hile the mother is positive in her approach to working with the clinician, she has attended individual sessions intermittently, often cancelling due to work conflicts or for health reasons." They also observed that Mother "struggles to connect the lessons in the curriculum to her situation with her children, often placing blame on [her son] and avoiding recognizing potential areas for personal growth." The "quality of her visits and her parenting style" had "not changed significantly" after almost five months of services.
The six-month review hearing was continued to April and, following the hearing, the juvenile court set the 12-month review hearing for later in the month. The Agency's 12-month review report stated that Mother visited Minor and her sisters on Friday afternoons. The visits were "going well." Mother was "affectionate" and the children were "attached" to her, although Mother appeared "to have difficulty following through on enforcing limits." Minor reported that her foster parents were attentive to her needs and emotional well-being, although she preferred to live with Mother. Regarding Minor's adoptability, the report stated that "[b]ased on [her] health, development and ability to attach to her foster parents she is deemed adoptable. [Her] foster parents will consider a permanency plan if [she] does not reunify with [M]other." Nevertheless, the Agency recommended continuation of reunification services.
The 12-month review hearing was continued and, in a July 2016 addendum report, the Agency changed its recommendation and recommended setting the matter for a section 366.26 hearing to select a permanent plan for Minor. Mother's progress on her case plan was minimal and Mother had not visited Minor since mid-May. Although Minor liked living with her foster parents, she still expressed a preference to live with Mother. In August, the juvenile court continued reunification services and set the 18-month review hearing for September.
In the 18-month review report, filed September 2016, the Agency continued to recommend that the juvenile court terminate reunification services and schedule a section 366.26 hearing. The Agency noted that Minor continued to express a desire to live with Mother. A contested 18-month review hearing went forward in October, with the juvenile court receiving testimony from two social workers, one of the TVS clinicians, and a service provider. The testimony was consistent with the themes and information developed in the Agency's reports. On the topic of visitation, one of the social workers testified that there were frequent visits earlier in the dependency proceeding, but there began to be a lapse of time between visits starting in March 2016. The social worker was also concerned about the appropriateness of Mother's interactions with the children during visitation, such as Mother's failure to intervene to stop meanness between the siblings. The social worker never reached the point of feeling comfortable allowing unsupervised visits with Mother.
The TVS clinician testified Mother missed a number of parenting curriculum sessions and generally failed to do the homework, which made it "very difficult to engage in discussing the parenting curriculum or how that would apply to her children." She acknowledged language in a report that "[t]he girls appear to have a strong attachment with their mother and benefit from having her involved in their lives[,]" but she testified it was not a "secure attachment" due to "the patterns of inconsistency that [Mother] has had with the children in meeting their developmental needs." Finally, another service provider, called as a witness by Mother, testified Mother had completed a ten-week parenting course in May 2015 and became active in seeking other services in July 2016.
The juvenile court found there was no basis to continue reunification services and scheduled a section 366.26 hearing for February 2017. The Agency's report for the section 366.26 hearing recommended a permanent plan of adoption for Minor. Minor had been in her current placement since October 2015. The foster parents wanted to adopt Minor and they indicated they would continue to enable contact with Minor's siblings and Mother. Minor often invited her siblings over to her foster parents' home and the foster parents would pick up the siblings to spend the night. Regarding recent visitation with Mother, the report stated as follows: During a January 2017 home visit by the social worker, Minor reported that Mother had attended her basketball game a few days earlier, she had not seen Mother for three weeks before the game, and prior to that she had not seen Mother for six weeks. Minor said that if she could not return to Mother's custody she wanted to be adopted by her foster parents.
At the section 366.26 hearing, Mother's counsel sought a guardianship for Minor on the ground that Minor would suffer detriment if Mother's parental rights were terminated. Mother did not present evidence to support that contention. The children's attorney expressed no opposition to the Agency's recommendation regarding Minor, acknowledging that Minor had bonded with her caregivers. The juvenile court terminated Mother's parental rights to Minor, and this appeal followed.
DISCUSSION
Mother contends the juvenile court erred in failing to find the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(i)) precluded termination of her parental rights to Minor. We review the court's finding for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)
Although appellate courts have routinely reviewed termination orders for substantial evidence, Division Three of this court has ruled the appropriate standard is abuse of discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1351 [whether the exception applies is a "quintessentially discretionary determination"].) We will apply the abuse of discretion standard, recognizing as the court did in Jasmine D. that the practical differences between the two standards are insignificant in this context. (Ibid.) --------
At a section 366.26 hearing, the juvenile court must determine a permanent plan of care for the child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) The statute provides three alternatives for permanent placement: adoption, guardianship, and long-term foster care. (§ 366.26, subd. (b); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Adoption is the permanent plan preferred by the Legislature "because it gives the child the best chance at [a full emotional] commitment from a responsible caretaker." (Jasmine D., supra, 78 Cal.App.4th at p. 1348; accord In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) Accordingly, if a juvenile court finds a child is likely to be adopted, it must terminate parental rights and order the child placed for adoption unless it finds, for one of six "compelling reason[s]," that termination of parental rights would be detrimental to the child. (See § 366.26, subd. (c)(1)(B)(i)-(vi).) The burden is on the parent to show an exception applies. (In re C.B. (2010) 190 Cal.App.4th 102, 122.)
The beneficial parental relationship exception applies when 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." (§ 366.26, subd. (c)(1)(B)(i).) Assuming Mother's visitation satisfied the first prong of the exception, the question is whether Mother showed the relationship so benefitted Minor that termination of parental rights would be detrimental. To establish this, Mother was required to demonstrate the relationship "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re C.B., supra, 190 Cal.App.4th at p. 124.) "[T]he 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., at pp. 575-576; accord In re C.B., at p. 124.) If the court finds the relationship with the parent does not benefit the child significantly enough to outweigh the Legislature's strong preference for adoption, the exception does not apply. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
The juvenile court did not abuse its discretion in finding the beneficial parental relationship exception did not apply. In arguing the juvenile court erred, Mother points out that Minor lived with Mother the first 8 years of her life and, throughout the dependency proceeding, Minor expressed she missed and wanted to live with Mother. Although Mother did not present any evidence at the section 366.26 hearing, she relies on the record of visitation described by the Agency, Minor's statements as related by the Agency, and TVS reports. Those materials show that Minor missed Mother a great deal and enjoyed affectionate visits with Mother. On the other hand, Mother failed in some respects to demonstrate appropriate parenting skills, and the TVS technicians observed that Mother behaved more like a peer than a parent. Moreover, the frequency of visitation had decreased by the time of the section 366.26 hearing, and Mother never achieved unsupervised visitation during the reunification period.
The beneficial relationship exception requires more than a showing that the parent has maintained frequent and loving contact with the child, and that the two share an emotional bond. (See, e.g., Jasmine D., supra, 78 Cal.App.4th at p. 1350; In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) A parent cannot "derail an adoption merely by showing the child would derive some benefit from continuing a relationship." (Jasmine D., at p. 1348.) Indeed, "continued interaction between the biological parent and child will almost always confer some benefit on the child." (In re Zachary G. (1999) 77 Cal.App.4th 799, 811; accord Autumn H., at p. 575.) Instead, Mother was required to show " 'exceptional circumstances' "—that the relationship promotes the well-being of Minor to such a degree as to outweigh the well-being she would gain in a permanent home. (Jasmine D., at pp. 1348-1349; see also In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
In the present case, the evidence falls short of that necessary to mandate application of the beneficial parental relationship exception. A useful comparison is the evidence presented in In re Amber M. (2002) 103 Cal. App.4th 681, in which the Court of Appeal held the juvenile court erred in failing to apply the exception. (Id. at p. 690.) In that case, application of the exception was supported by substantial and specific testimony; as Amber M. summarized, "The common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption." (Id. at p. 690; see also In re Scott B. (2010) 188 Cal.App.4th 452, 471 ["The CASA repeatedly stated in her reports that Mother and [the minor] have a very close relationship and it would be detrimental to [the minor] for their relationship to be disrupted."].) In the present case there was no comparable testimony; Mother did not attend the section 366.26 hearing or even submit a declaration in support of application of the beneficial parental relationship exception. (See In re J.C. (2014) 226 Cal.App.4th 503, 533-534 [distinguishing Amber M. and stating "[t]here was no bonding study or evidence, other than Mother's self-serving declaration, to counter the social worker's conclusion [the minor] would not suffer any detriment"].)
Mother's great reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530, in which the appellate court found there was sufficient evidence to affirm the juvenile court's application of the beneficial parental relationship exception, is misplaced. Any similarities between that case and the present case do not establish the juvenile court was compelled to apply the exception in the present case. Moreover, in that case the prospective adoptive parent (the boys' paternal grandmother) testified it was not in the best interests of the boys to terminate the parental relationship, and the mother testified she had visited every week for three years except when she was out of state. (Id. at p. 1533.) In the present case, Mother presented no evidence to support application of the exception, and the record does not demonstrate the same consistency in visitation as in Brandon C.
Although the evidence showed a substantial bond between Mother and Minor, it did not show a bond of such "strength and quality" that the juvenile court was compelled to conclude Minor would be "greatly harmed" by termination of parental rights. (Autumn H., supra, 27 Cal.App.4th at p. 575; see also Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1545 ["[the minor] has a strong bond with her father and some bond with her mother, but these bonds did not require the court to find it was not in her best interest to be adopted by her paternal grandparents when it weighed all of the factors"].) A court considering the record in this case could reasonably conclude that the permanency of adoption outweighed any benefit Minor might gain from continuing her relationship with Mother. (See Jasmine D., supra, 78 Cal.App.4th at p. 1348.) The juvenile court did not abuse its discretion in finding the beneficial parental relationship exception inapplicable.
Mother also contends the juvenile court erred in failing to find the beneficial sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v)) precluded termination of her parental rights to Minor. However, it is undisputed she failed to object below to termination of parental rights on the basis of the beneficial sibling relationship exception. She, therefore, forfeited her right to raise the issue on appeal. (In re Erik P. (2002) 104 Cal.App.4th 395, 403 [holding father forfeited right to assert applicability of beneficial sibling relationship exception]; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [concluding claim based on different exception was forfeited and stating, "[t]he juvenile court does not have a sua sponte duty to determine whether an exception to adoption applies"]; see also In re S.B. (2004) 32 Cal.4th 1287, 1293.) In any event, assuming the record demonstrates "a strong sibling relationship," the evidence did not compel the juvenile court to conclude that "the benefit to [Minor] of continuing the sibling relationship[s]" outweighed "the benefit [Minor] would receive by gaining a permanent home through adoption." (Celine R., supra, 31 Cal.4th at p. 61.) Moreover, Minor's prospective adoptive parents provided assurances that contact between Minor and her siblings would continue, which brings into question whether termination of Mother's rights will actually interfere with the sibling relationships. (In re D.O. (2016) 247 Cal.App.4th 166, 175-176; see also id. at p. 175 ["it is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship, and the juvenile court must make this factual determination"].)
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.