Opinion
H046897
10-29-2019
In re B.C., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. F.A. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 17JU00182)
F.A. (mother) and M.C. (father) appeal from the juvenile court's order terminating their parental rights to their daughter B.C. (daughter) and selecting adoption as the permanent plan following a Welfare and Institutions Code section 366.26 hearing. Mother and father argue that the juvenile court erred when it found the beneficial parent-child relationship exception to adoption inapplicable. We conclude that the juvenile court did not abuse its discretion and affirm the order terminating parental rights.
Unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
On May 8, 2019, this court took judicial notice of the record filed in F.A. v. Superior Court, No. H046575. On May 28, 2019, the trial court clerk filed a clerk's certificate with this court incorporating the records in both In re B.C.; Santa Cruz County Human Services Department v. F.A. (No. H046853) and F.A. v. Superior Court (No. H046575) with the record in this appeal.
1. The Dependency Petition and the Detention Hearing
On June 23, 2017, the Santa Cruz County Human Services Department (Department) filed a petition under section 300, subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling) alleging that daughter (born 2017) came within the juvenile court's jurisdiction. According to the petition, mother abused methamphetamine and marijuana and had a lengthy history of substance abuse. Mother used methamphetamine throughout her pregnancy with daughter and tested positive for amphetamine two days before daughter's birth. After birth, daughter was jittery, did not feed well, and was extra sleepy. Father also abused methamphetamine and marijuana, and he used marijuana with mother and watched mother use methamphetamine when mother was pregnant with daughter. Father used methamphetamine as recently as a week before daughter's birth. The petition further alleged that mother's three older children (daughter's half-siblings) had previously been abused or neglected.
According to the initial hearing report prepared by the Department, the Department had received 37 prior referrals for mother. The Department had never received referrals for father. Based on the Department's investigative narrative, both parents agreed to place daughter with O.I., father's sister and daughter's paternal aunt (aunt).
On June 26, 2017, the juvenile court found that it would be contrary to daughter's welfare to permit her to remain with her parents. Thereafter, the juvenile court temporarily placed daughter in the Department's care and ordered her detained. The juvenile court ordered services for both mother and father and further ordered a minimum of three supervised visits per week with each parent.
2. The Jurisdiction/Disposition Hearing
The Department recommended in its jurisdiction/disposition report that both parents be offered family reunification services. Both parents expressed a desire to reunify with daughter and participate in all recommended court services. The report summarized mother's history of substance abuse, which spanned over 10 years. The hospital confirmed that daughter's meconium had tested positive for amphetamine. Unfortunately, despite having received court-ordered services in the past, mother had only succeeded in temporarily addressing her substance abuse problems. As of the date of the report, mother was presently engaging in inpatient treatment services and had tested negative for all substances. Father was in denial over his drug use and had tested positive for marijuana once and positive for methamphetamine twice following daughter's removal. Both parents were fully engaged in visiting with daughter.
On August 3, 2017, the juvenile court adopted the recommendations made in the Department's jurisdiction/disposition report. The juvenile court sustained the section 300 petition and found the allegations in the petition to be true. The juvenile court ordered family reunification services for both parents and ordered a minimum of three supervised visits per week for each parent. Daughter had been placed with aunt, and the juvenile court found the placement to be appropriate.
Aunt lived with daughter's paternal uncle (uncle), and the two provided daughter with a home.
3. The Six-Month Review Hearing
On January 19, 2018, the Department filed a notice of a six-month review hearing. The Department recommended terminating services to both parents and setting a section 366.26 hearing to determine a permanent placement. Daughter was still in aunt and uncle's care, and they identified themselves as a concurrent placement.
The six-month review report stated that father had recently moved into a RV trailer. During the reporting period, both parents maintained employment, but both parents also experienced periods of homelessness. Father now said that mother was no longer residing with him. There had been one incident of domestic violence between mother and father. On November 27, 2017, father got into a confrontation with mother, which resulted in mother punching father in the face while he was driving them in a car.
Mother was actively and consistently participating in individual counseling. She completed a parent education course. During the reporting period, mother had 26 drug testing opportunities. She tested negative 23 times, tested positive for THC twice, and missed one drug test.
Father was also consistently participating in individual counseling. Father was presently enrolled in a parent education course and had completed four classes. During the reporting period, father had 24 drug testing opportunities. Father tested negative 15 times and missed nine drug tests.
Both parents visited daughter three times a week, and the visits were appropriate and timely. There were some reported conflicts between mother and father during visits over issues such as who would hold daughter. During some visits, father fell asleep, and he sometimes needed to be reminded not to use his phone during visits. The Department attached visitation logs that summarized the parents' visits with daughter. Father was affectionate and held daughter during visits. Mother also held daughter during visits, and sometimes daughter fell asleep in her arms.
The Department opined that mother's sobriety was unclear during the reporting period and expressed concern over the incident of domestic violence between mother and father in the car. The Department believed that there had not been enough "forward movement" made by both parents to ensure that daughter would be safe in their care. Thus, the Department recommended terminating services to both parents and setting a section 366.26 hearing.
On February 1, 2018, the juvenile court set the matter for a settlement conference after considering the Department's six-month review report. Five days later on February 6, 2018, the Department filed a change of recommendation report following an off-the-record settlement conference between the parents, counsel, and the Department. The Department indicated that it was changing its prior recommendation to terminate reunification services; it was now recommending that reunification services be continued for both parents.
Subsequently, the juvenile court adopted the recommendations made by the Department in its change of recommendation report and continued family reunification services for both parents. The juvenile court ordered a minimum of three supervised visits per week for each parent. Aunt and uncle were granted de facto parent status.
4. The 12-Month Review Hearing
On July 18, 2018, the Department filed a 12-month review hearing report. The report recommended that the juvenile court continue family reunification services for both parents.
Father still lived in a RV trailer, and the trailer was located on a family-owned plot of land in Watsonville. Mother lived with family members in Watsonville. Both parents maintained employment during the reporting period, and both parents participated in services. The Department, however, described father's participation as "minimal." Both parents visited daughter consistently, and their visits were of "adequate quality." The relationship between mother and father was not particularly stable. During the reporting period, father demanded that mother leave their shared residence multiple times.
As of the date of the report, daughter was being assessed for a genetic condition. Initial testing was inconclusive, and daughter was to be retested in a year.
Mother still participated in individual counseling, and her participation was described as active and consistent. Mother expressed awareness that her substance abuse negatively impacted her children. Mother previously completed an outpatient treatment group for substance abuse during the last reporting period. During the current reporting period, mother had 23 drug testing opportunities. Mother tested negative eight times and missed 17 drug tests. Mother said she missed tests after she called the facility and was told that she did not need to submit to tests.
As of July 16, 2018, father said he was no longer participating in individual counseling. Father participated in six parent education classes before being dropped from the program due to his lack of attendance. Father indicated that he had reenrolled in classes and intended to begin sessions the following week. Father had not participated in substance abuse treatment during the reporting period but intended to start sessions soon. During the reporting period, father had 21 drug testing opportunities. Father tested negative seven times and missed 14 drug tests. Father said that he missed tests because he called the facility and was told that he did not need to submit to tests.
Both parents continued to have appropriate visits with daughter. Several times, the parents requested and had separate visits due to their own personal conflicts with each other. The parents, however, did not let their conflicts impact their visits with daughter. The Department attached visitation logs that described the parents' visits with daughter. Both parents were affectionate toward daughter, and daughter would occasionally fall asleep in her parents' arms.
The Department opined that both parents signified their commitment to reunify with daughter as single parents. Both parents made progress in meeting their case plan objectives.
On September 12, 2018, the juvenile court held a contested 12-month review hearing. The juvenile court adopted the recommendations made in the Department's report, continued daughter as a dependent of the court, and ordered reunification services for both parents. The juvenile court found by clear and convincing evidence that reasonable services had been provided to both parents. The juvenile court further found that there was a substantial probability that daughter would be returned to her parents' physical custody by the 18-month review hearing. Subsequently, the juvenile court ordered a minimum of three supervised visits per week for each parent.
5. 18-Month Review Hearing
On December 4, 2018, the Department filed a report made in preparation for the 18-month review hearing. The Department recommended that the juvenile court terminate reunification services to both parents and set a section 366.26 hearing.
During the reporting period, father continued to live in his RV trailer. Mother lived in shared housing in Watsonville. She had previously lived with relatives on a temporary basis, or with father when they were still an intact couple with a goal of reunifying with daughter. Mother and father previously indicated on four separate occasions that they wanted to be considered as an intact couple for the purposes of the dependency proceedings. More recently, mother and father both reached out to the Department and indicated that they were no longer together and now wanted to reunify with daughter separately.
Daughter had been diagnosed with a genetic condition, Osteogenesis Imperfecta, which is also known as brittle bone syndrome. Father was not participating in any of daughter's medical appointments and did not appear to understand daughter's diagnosis, which made her a fragile child.
Mother was continuing to participate in individual counseling and individual substance abuse counseling. During the current reporting period, mother had 37 drug testing opportunities. She participated in 32 tests and had two positive tests for alcohol and five positive tests for marijuana. The rest of her test results were negative, and she missed five tests.
Father was participating in individual counseling. He had not participated in substance abuse treatment during the reporting period. During the reporting period, father had 22 drug testing opportunities. Father participated in nine tests and tested positive once for marijuana and alcohol. He missed the rest of the drug tests. The Department expressed concern over his limited participation in drug testing.
Both parents continued to visit daughter and had unsupervised visits during the reporting period. Father had two overnight visits, but overnight visits were suspended after it was discovered that father shared an overnight visit with mother. Father also co-slept with daughter during an overnight visit, which demonstrated that he may have minimal knowledge about the risks associated with co-sleeping due to daughter's brittle bone syndrome.
The Department opined that both parents were committed to reunifying with daughter but had not managed to establish stability. The Department observed that daughter had already waited 18 months for her parents to demonstrate that they could provide a safe and nurturing environment for her, but that type of environment was not presently available with her parents.
On January 16, 2019, the juvenile court held a contested 18-month review hearing. The social worker assigned to daughter's case testified. He expressed concern over the stability of mother and father's relationship, noting that both parents would sometimes present as an intact couple only to later inform him that they were separated. The social worker believed the "back and forth" nature of their relationship persisted; on one occasion mother texted father 150 times in one day. The social worker opined that it seemed that daughter was never her parents' priority. To him, it appeared that the parents prioritized their relationship.
The social worker testified that although mother had not had overnight visits, she had extended unsupervised visits with daughter. The social worker was not concerned about mother's sobriety and did not have concerns about mother's parenting during her visits with daughter.
On the other hand, the social worker was concerned with father's lack of knowledge and involvement in daughter's medical care. During an overnight visit with father, father co-slept with daughter. The social worker explained that there were risks associated with co-sleeping due to daughter's brittle bone syndrome; father could break daughter's bones and put her life in danger if he accidentally rolled on top of her. The social worker believed that father's drug test results provided an unclear picture of his sobriety. He also had concerns about father's mental health. Father previously made threatening statements about how he needed to have daughter back in his care and talked about harming himself and members of his family.
Mother testified at the hearing. She explained that she had completed a substance abuse program, had a sponsor, and was continuing to go to meetings. Mother asserted that her relationship with father was over, and she presently had a stable living environment. Mother had three unsupervised visits with daughter per week and had been having these types of visits for almost a year. Mother was working full time and was thinking of switching to a part time schedule to bond with daughter.
Father also testified. Father stated that he had participated in some parenting classes, group counseling, and individual counseling. Father admitted that he was dropped from the parenting class because of his attendance. According to father, the social worker told him that it was okay for mother to be there during one of his overnight visits with daughter. Father said that he was aware of daughter's brittle bone syndrome. He explained that daughter's bones were fragile and could break easily. He insisted that he had attended some of daughter's medical appointments. Father also had a stable living environment; he was living in a trailer that he had child-proofed. Father denied that he was using methamphetamine despite his multiple missed drug tests.
After considering the evidence, the juvenile court determined that returning daughter to her parents' care would create a substantial risk of detriment to her safety, protection, or physical or emotional well-being. The juvenile court stated: "[W]ith respect to [father], the fact that [father] has not been participating in substance abuse testing is significant in my decision. [¶] The fact that it was only recently that he began participating in medical appointments with his daughter is significant to me. [¶] The fact that he doesn't complete parenting classes is significant to me in making those decisions. [¶] . . . I do find the issues concerning [father's] relationship [with mother] and setting those boundaries and caring with each other are significant." The juvenile court further stated: "[W]ith respect to [mother] . . . . [¶] . . . [¶] I find the fact that it wasn't until very recently, if not her testimony today on the stand that, look, this idea of a relationship with [father], I'm—I agree I need to move forward on a different path on my own. That ongoing conflict was evident in the testimony on the stand because when asked when the last time she had been over at [father's] house was . . . , [mother] equivocated. [¶] . . . [¶] And so I do find that ongoing . . . inability to put yourselves in a stable relationship once we reach that twelve-month point until this hearing is of deep concern to me . . . . [¶] So, again, I'm very concerned about returning a child to either parent in the circumstances where the—[there is an] issue concerning [mother's] ability to understand the signs and symptoms of an unhealthy relationship."
The juvenile court then found by clear and convincing evidence that the parents had been offered and provided with reasonable services. Thereafter, the juvenile court adopted the recommendations of the Department's 18-month review report, terminated reunification services for both parents, and set a section 366.26 hearing. The juvenile court ordered supervised visits for the parents at a minimum of once per month per parent.
Although mother filed a notice of intent to file a writ petition challenging the order setting the section 366.26 hearing, she never filed a writ petition. (F.A. v. Superior Court (H046575).)
6. The Section 366 .26 Report
On April 8, 2019, the Department filed a report made in preparation for the section 366.26 hearing. The Department recommended that the juvenile court terminate the parental rights of both parents and free daughter for adoption.
The Department found that both parents had been consistent in visiting daughter, but they had not established a parent-child relationship with her. Instead, the Department characterized the parents' relationship with daughter as a " 'visiting relationship.' " Based on the Department's assessment, the parents had not met daughter's daily need for food, shelter, nurture, stability, safety, medical care, emotional well-being, and developmental care.
The report summarized daughter's medical history. Due to daughter's brittle bone syndrome, it was recommended that daughter have frequent dental visits, physical therapy, regular treatment of fractures with small, lightweight casts, treatment of any hearing loss that she may suffer, and referral to an endocrinologist. Mother had the same brittle bone syndrome as daughter, and three of daughter's half-sisters also had the condition.
Daughter continued to reside with aunt and uncle. Aunt and uncle had initially stated that they were only interested in caring for daughter until her parents could reunify with her. As the dependency proceedings progressed, aunt and uncle stated that they understood that if the parents were unable or unwilling to reunify with daughter, the most likely permanent plan for daughter would be adoption. Aunt and uncle expressed that they were committed to being a concurrent placement for daughter. Aunt and uncle had been supportive of family reunification services with mother and father. Aunt's relationship with father had deteriorated since daughter's placement with aunt and uncle. On February 5, 2019, aunt called the Department and reported that she had received threatening text messages from father.
Following the 18-month review hearing, the Department tapered the number of supervised visits between the parents and daughter. In February, supervised visits were scheduled for twice a month. In April, supervised visits were scheduled for once a month. During supervised visits, mother was appropriate with daughter, was affectionate with her, and engaged with her. Daughter recognized mother and enjoyed visits with her. In February, father declined supervised visits after the Department contacted him to remind him about once-monthly court-ordered visitation. In March, father requested visitation with daughter. During the supervised visit, father was affectionate toward daughter. Father expressed unhappiness that aunt was interested in adopting daughter. At the end of visits with both mother and father, daughter transitioned well, seemed ready to return to her caregivers, and appeared excited and eager to go home to aunt and uncle.
The Department concluded that although it had provided both parents with 18 months of reunification services, neither mother nor father had fully engaged with the offered services, such as individual or family counseling, drug testing, substance abuse treatment, and parenting classes. Although both parents visited daughter, there were incidents of domestic violence reported between the parents. On the other hand, daughter had resided with aunt and uncle since she was an infant, and aunt and uncle had developed a protective, loving, and nurturing relationship with her. Daughter was "clearly bonded" with aunt and uncle and looked to them for love, security, and a sense of belonging.
7. Mother's Section 388 Petition
On April 19, 2019, mother filed a section 388 petition seeking to set aside the section 366.26 hearing and to continue her reunification services. The petition alleged that mother had continued to participate in counseling and had maintained her sobriety after the 18-month review hearing. She continued to maintain stable housing and consistently visited daughter.
On April 25, 2019, the juvenile court denied mother's section 388 petition after determining that continuing reunification services would not be in daughter's best interests.
Mother appealed the order denying her section 388 petition. Her counsel filed a letter brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, indicating there were no issues on appeal. After mother failed to submit a request to file a supplemental brief on her own behalf, the appeal was dismissed as abandoned. (In re B.C.; Santa Cruz County Human Services Dept. v. F.A. (June 21, 2019, H046853).)
8. The Section 366 .26 Hearing and the Order Terminating Parental Rights
Mother requested that the juvenile court stay the section 366.26 hearing pending her appeal of the court's denial of her section 388 petition. The juvenile court denied her request for a stay.
On May 8, 2019, the juvenile court held a section 366.26 hearing. Mother testified on her own behalf. Mother maintained that she had visited daughter regularly throughout the course of the dependency proceedings. During unsupervised visits, mother took daughter to the library, the park, or to visit relatives. During supervised visits, mother played with daughter, and daughter fell asleep on mother. Mother also bought daughter presents such as clothes. Mother described her relationship with daughter as close. She believed that daughter needed her, and she needed daughter.
Father also testified on his own behalf. Father stated that he had regularly visited daughter throughout the duration of the dependency proceedings. He did not want his parental rights to be terminated because he wanted to be in his daughter's life. Father had a good relationship with aunt before the dependency proceedings began, but the relationship had since deteriorated. Father did not believe that aunt would share daughter with him if the adoption proceeded. Father explained that during visits with daughter, he took her for walks and took her to the beach. He also took her to church. Father child-proofed his RV trailer, and he committed his full attention to daughter when he was with her.
After hearing the parents' testimonies, the juvenile court made its ruling. First, the juvenile court acknowledged that both parents demonstrated incredible dedication, commitment, and love to their daughter. The juvenile court then found by clear and convincing evidence that it was likely that daughter would be adopted.
Thereafter, the juvenile court considered whether the beneficial parent-child relationship exception had been established by either parent. The juvenile court first concluded that both parents had consistently and regularly visited daughter. The juvenile court, however, concluded that the benefits of maintaining a relationship with mother and father did not outweigh the benefits conferred by adoption. The juvenile court stated: "[Both parents] clearly love [daughter], and [daughter] is connected and loves them. And you can see that the interactions between [mother] and [father] are positive and [daughter] enjoys being with them. She runs to [mother], and she loves playing puzzles with [father] and going to the beach. But when I weigh that with the benefits that can be conferred by an adoption, and that consistency provided by adoption, I find that the permanency and stability of the adoptive placement with [aunt and uncle] outweighs the relationship that she has with [father] and [mother]. And that's because these visits are positive, but they don't rise to the level of occupying a parental role. [¶] And so, based upon the fact that the day-to-day needs of the child are met by her placement family—you can tell that the transitions, [daughter] is ready to return to the caregivers, feels very comfortable and adjusted at home—I find that based upon [Autumn H.], that [the] stability and permanency that would be provided by adoption in this case outweighs the benefit of maintaining the parent/child relationship."
Thereafter, the juvenile court terminated mother's and father's parental rights. Mother and father appealed.
DISCUSSION
Mother and father argue that the juvenile court erred when it terminated their parental rights and failed to apply the beneficial parent-child relationship exception to adoption. As we explain, we reject their contentions.
Mother and father join in each other's arguments.
1. Overview and Standard of Review
"By the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) "[N]atural children have a fundamental independent interest in belonging to a family unit [citation], and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) "Adoption is the Legislature's first choice because it gives the child the best chance at such a commitment from a responsible caretaker." (Jasmine D., supra, at p. 1348.)
Section 366.26 sets forth the procedure for terminating parental rights. Under section 366.26, subdivision (c)(1), a prior order under section 361.5 terminating a parent's reunification services "shall constitute a sufficient basis for termination of parental rights." If the juvenile court also determines by clear and convincing evidence that it is "likely the child will be adopted," it "shall terminate parental rights and order the child placed for adoption" (§ 366.26, subd. (c)(1)) unless certain exceptions apply.
Mother and father rely on the beneficial parent-child relationship exception set forth under section 366.26, subdivision (c)(1)(B)(i). Under section 366.26, subdivision (c)(1)(B)(i), the juvenile court shall not terminate parental rights if it finds a compelling reason that 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."
"[T]he proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental . . . relationship, which is a factual issue." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Thus, we apply the substantial evidence standard of review to the juvenile court's determination of whether a beneficial parent-child relationship exists. (Ibid.) "The other component of . . . the parental relationship exception . . . is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.)" (Id. at p. 1315.) Whether a relationship is a " 'compelling reason' " for finding detriment is not a factual issue. It is a discretionary decision made by the juvenile court after it weighs "the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child . . . against the benefit to the child of adoption." (Ibid.)
2. The Juvenile Court's Decision that the Beneficial Parent-Child Relationship Exception was Inapplicable
Both mother and father argue the beneficial parent-child relationship exception applies, and the juvenile court should have found that termination of their parental rights would be detrimental to daughter's well-being. The Department disagrees and argues the juvenile court's decision that the exception did not apply was supported by the record. As we explain, we agree with the Department.
" 'The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.' " (Bailey J., supra, 189 Cal.App.4th at p. 1315.) "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
In this case, the juvenile court concluded that mother and father satisfied the first prong of the beneficial parent-child relationship exception by maintaining regular visitation with child. The juvenile court then concluded that although the visits between mother and father were positive, they did not "rise to the level of occupying a parental role." Thereafter, the juvenile court concluded that the benefits of adoption were not outweighed by the benefits of maintaining a parental relationship with mother or father.
The juvenile court's conclusion that the relationships between mother, father, and daughter were not a compelling reason to find that termination of parental rights would be detrimental was not an abuse of discretion. (See Bailey J., supra, 189 Cal.App.4th at p. 1315 [abuse of discretion standard applies to juvenile court's conclusion that the existence of a beneficial parent-child relationship is not outweighed by benefits of adoption].) Mother and father's interactions with daughter were pleasant, and they were affectionate with daughter. However, the Department remained concerned with both parents' stability and the tumultuous nature of their relationship. Father had previously asked mother to leave their shared residence multiple times. During the 18-month review hearing, the social worker testified that he believed that mother and father's unstable relationship placed daughter at risk. For example, the social worker was concerned about what would happen if daughter was present and there was a fight between mother and father. On the other hand, aunt and uncle provided daughter with stable, loving care, and daughter had lived with aunt and uncle since she was an infant. Daughter was bonded with aunt and uncle, and they were bonded with her. At the end of visits with both mother and father, daughter transitioned well and seemed ready to return to aunt and uncle.
Father argues that he met his burden to establish the existence of a beneficial parent-child relationship, and the relationship was a compelling reason not to terminate his parental rights. He claims that the record demonstrates that he acted in a parental role—he was protective and gentle during visits, and he took steps to ensure daughter's safety in his RV trailer. We agree that there is evidence in the record that supports father's position. However, a "parental relationship is necessary for the [beneficial parent-child relationship] exception to apply, not merely a friendly or familiar one." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Here, the juvenile court determined that father's interactions with daughter did not rise to the level of a parental role, and substantial evidence supports this decision. Daughter had never lived with father fulltime. Father did not provide for daughter's day-to-day care and everyday needs. There was also evidence that father did not fully appreciate or grasp the health risks associated with daughter's brittle bone syndrome. He once co-slept with her and only recently began participating in her medical appointments.
Like father, mother also argues that she met her burden to establish the existence of a beneficial parent-child relationship, and the relationship was a compelling reason not to terminate her parental rights. We also agree with mother that there is evidence in the record to support her position. She made progress in her case plan and was affectionate toward daughter during visits. However, "[e]vidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (Bailey J., supra, 189 Cal.App.4th at pp. 1315-1316.) Daughter had never lived with mother, and daughter transitioned well back to aunt and uncle after visits. Furthermore, the Department assessed that mother and father had a visiting relationship, not a parental one.
Mother argues that her parental role was acknowledged by aunt and uncle, daughter's caregivers. For example, mother states that aunt previously asked her for permission to pierce daughter's ears and to sign daughter up for soccer classes. Mother opines that these discussions demonstrate that aunt and uncle, daughter's caregivers, viewed mother as a parental figure in daughter's life, and aunt and uncle further believed that mother would continue to be involved in daughter's life in the future. Mother's arguments do not aid her. The caregivers' view of mother's parental role is not determinative of the juvenile court's decision. Based on the evidence before it—including the Department's opinion that mother and father had only a visiting relationship with daughter—the juvenile court was entitled to draw its own conclusions.
Mother claims that the juvenile court did not properly consider daughter's brittle bone syndrome and the fact that mother had the same condition. Citing the Department's visitation logs, which describe how mother placed blankets and pillows around daughter during visits, mother insists that her personal experience with brittle bone syndrome and her experience caring for her other children who suffer from the same condition places her in a unique position to provide care to daughter. Mother opines that her visits with daughter displayed a "deep understanding of how to handle [daughter] in her medically fragile status."
We acknowledge that when considering whether the beneficial parent-child relationship exists, the juvenile court considers " 'the child's particular needs.' " (Bailey J., supra, 189 Cal.App.4th at p. 1315.) Mother, however, provided little evidence about her experience with brittle bone syndrome. "The parent has the burden of proving that termination [of parental rights] would be detrimental to the child under section 366.26, subdivision (c)(1)(A)." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Mother did not testify during the 18-month review hearing or at the section 366.26 hearing about her experiences caring for herself and for her other children that have the same syndrome. Nor did she testify about the unique bond that she had with daughter that was derived from their shared genetic condition. Moreover, there was no indication in the record that aunt and uncle were unable to provide for daughter or that they did not understand how to care for daughter's condition. The social worker assigned to daughter's case expressed no concern about aunt and uncle's ability to meet daughter's medical needs.
Mother further insists that the fact that aunt and uncle are paternal relatives weighs in favor of maintaining her parental rights. When determining whether parental rights should be severed, the juvenile court must balance the "natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother argues that any security and sense of belonging that daughter would receive from aunt and uncle would be reduced by the fact that her "new family" was not "new," since aunt and uncle are paternal relatives. Mother, however, cites to no legal authority for the proposition that the sense of security conferred by adoptive parents that are related to the child in question is somehow diminished due to the nature of the familial relationship. Although aunt and uncle are related to father, the new family they intended to provide to daughter would still provide her with stability.
Next, mother argues that her intermittent homelessness and the possibility that she may be able to maintain contact with daughter post-adoption should not weigh against finding the beneficial parent-child exception. To support her position, mother relies on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.). In Amber M., the appellate court reversed the juvenile court's order terminating parental rights after determining that it erred by declining to apply the beneficial parent-child exception. (Id. at p. 691.) The three children subject to dependency proceedings in Amber M. had spent the majority of their lives in their mother's care, and "[t]he common theme running through the evidence from the bonding study psychologist, the therapists, and the [court appointed special advocates] [was the existence of] a beneficial parental relationship that clearly outweigh[ed] the benefit of adoption." (Id. at p. 690.) The appellate court observed that although the mother was not presently ready for the children to return to her custody, neither this fact, nor the suitability of the grandparents' homes, who wished to adopt them, could justify terminating parental rights under the circumstances. (Id. at pp. 690-691.) The appellate court also noted that "the maintenance of mother-child and sibling relationships [would] depend solely on both grandparents' continued goodwill." (Id. at p. 691.) Furthermore, the three children were in separate placements—two were placed with the maternal grandmother and the third was placed with the maternal grandfather. (Id. at p. 685.) Had the children been adopted, they would have been split into two separate groups. (Id. at pp. 690-691.)
Mother also cites to In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.). In Scott B., the appellate court reversed the juvenile court's order terminating the mother's parental rights after determining that the beneficial parent-child relationship exception applied. (Id. at pp. 454-455.) The child in Scott B. was almost nine years old when he was removed from his mother's home, and he had spent most of his life living with his mother. (Id. at p. 471.) After his removal, the child had consistent weekly visits with his mother, and he looked forward to the visits. (Ibid.) The court-appointed special advocate repeatedly stated in her reports that the mother and the child had a close relationship, and it would be detrimental to the child to disrupt their relationship. (Ibid.) Furthermore, the child had continued emotional instability and repeatedly insisted himself that he preferred to live with the mother. (Ibid.)
Both Amber M. and Scott B. are distinguishable. Both cases involved minors who had spent the majority of their lives with their mothers before their mothers' parental rights were terminated. (Amber M., supra, 103 Cal.App.4th at p. 690; Scott B., supra, 188 Cal.App.4th at p. 471.) And in both cases, other experts such as therapists and court-appointed special advocates recognized that disrupting the parent-child bond would cause the child harm. (Amber M., supra, at p. 690; Scott B., supra, at p. 471.) Here, daughter was removed from mother and father shortly after her birth, and she spent the vast majority of her life in aunt and uncle's care. Aside from mother and father's testimony, there was no evidence presented about the benefits of mother and father's respective parental relationships with daughter. Moreover, the juvenile court never stated that it considered mother's housing situation or the fact that mother may have the potential to visit with daughter post-adoption as factors weighing in favor of adoption and severing parental rights. The juvenile court determined that the benefit and stability conferred by adoption outweighed the parental relationships with mother and father because mother and father did not occupy a parental role in daughter's life.
Mother and father also argue that their cases are dissimilar to cases like In re Noah G. (2016) 247 Cal.App.4th 1292 and In re C.F. (2011) 193 Cal.App.4th 549. Noah G. and C.F. are cases where the juvenile courts found the beneficial parent-child relationship exception did not apply, and the findings were upheld on appeal. (Noah G., supra, at p. 1304; C.F., supra, at pp. 558-559.) Distinguishing Noah G. and C.F. does not aid mother and father. In C.F., the mother did not visit her children consistently, was not involved during visits, and the children looked to their caretakers to fulfill their needs. (C.F., supra, at pp. 556-558.) In Noah G., the appellate court observed that the juvenile court properly focused on the mother's unresolved substance abuse issues. (Noah G., supra, at p. 1302.)
Mother and father argue that unlike the mother in Noah G., they have taken steps to maintain their sobriety. Mother further argues that unlike in C.F., the record demonstrates mother's support would be crucial for daughter in the future. However, establishing that they have a more positive relationship with daughter or that they have made more progress with their case plans compared to the parents in Noah G. and C.F. does not entitle mother and father to a reversal of the juvenile court's decision. Although mother and father have both taken positive steps in their lives and there is evidence that daughter enjoyed visits with both parents, the juvenile court must still weigh the benefits of maintaining the parental relationships against the benefits of adoption. In this instance, when exercising its discretion on this issue, the juvenile court determined that the benefits of adoption were not outweighed by the benefits of the parental relationships. Given the evidence in the record, we cannot say that this decision was arbitrary or capricious.
Finally, mother argues that the juvenile court failed to consider "a less severe result than the permanent severance of parental rights." However, "[a] showing the child derives some benefit from the [parental] relationship is not a sufficient ground to depart from the statutory preference for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) Here, the juvenile court determined that the beneficial parent-child exception did not apply, and this determination was supported by the record. "[I]t 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., supra, 78 Cal.App.4th at p. 1350.) Such extraordinary circumstances are not present here, and we must affirm the juvenile court's decision.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Bamattre-Manoukian, J. /s/_________
Mihara, J.