Opinion
F079969
03-09-2020
In re L.T., a Person Coming Under the Juvenile Court Law. KINGS COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.T., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Lee Burdick, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kings Super. Ct. No. 17JD0084)
OPINION
THE COURT APPEAL from orders of the Superior Court of Kings County. Jennifer Lee Giuliani, Judge. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Lee Burdick, County Counsel, and Rise A. Donlon, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Meehan, J.
-ooOoo-
On May 8, 2017, the Kings County Human Services Agency (Agency) filed a dependency petition as to then three-year-old L.T. The petition alleged that L.T. had been living with her biological mother, appellant J.T., at the time of removal.
The petition alleged that appellant failed to provide regular care of L.T. due to drug use. Appellant tested positive for cocaine (and cannabis) on May 3, 2017. L.T. tested positive for methamphetamine while in appellant's care.
The detention report indicated that L.T. told a babysitter that father "had been touching her inappropriately." The petition itself did not contain an allegation as to this claim.
Based on these allegations, the petition alleged L.T. has suffered, or is at substantial risk of suffering, serious physical harm or illness as a result of the failure or inability of his or her parent to supervise or protect the child adequately. (Welf. & Inst. Code, § 300, subd. (b)(1).)
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
After a detention hearing, the court ordered L.T. removed from appellant and father.
In May 2017, the parties "submitted" on the issue of jurisdiction, waiving their right to a hearing. The court found the allegations of the dependency petition true.
In June 2017, the parties "submitted" on the issue of disposition, waiving their right to a hearing. The court continued L.T.'s removal from the custody of appellant and father and granted family reunification services to them both.
Appellant made significant progress toward alleviating or mitigating the causes of L.T.'s removal. On May 29, 2018, the court ordered L.T. returned to appellant's care with family maintenance services.
Appellant subsequently missed three meetings with her therapist and failed to "follow up" with Kings County Behavioral Health to continue her sexual abuse program for non-offenders. Appellant did not "show up" for drug tests on July 16, July 30 and August 6, 2018. Appellant did take a drug test on October 8, 2018, but the results were positive for methamphetamine. Nonetheless, appellant denied using methamphetamine.
Despite these developments, the Agency recommended that L.T. remain in appellant's care. The court agreed and kept L.T. in appellant's care.
However, on March 27, 2019, the Agency removed L.T. from appellant's care. The Agency filed a dependency petition two days later, alleging that on March 25, 2019, appellant had assaulted her own 12-year-old sister. Appellant hit her in the face, leaving bruises. Appellant was arrested for corporal punishment of a child. (See Pen. Code, § 273d, subd. (a).)
On April 2, 2019, the court ordered L.T. removed from appellant's care. The Agency subsequently recommended reunification services. Appellant submitted on the issue of jurisdiction for the supplemental petition, and the court found the allegations true. The court ordered that L.T. remain a dependent and scheduled a disposition hearing.
At the disposition hearing on May 7, 2019, the Agency argued that "the child is very bonded to the mother and to do anything other than offer family reunification services would be a disservice to this child and harm her long term." L.T.'s counsel argued that the case began with appellant's substance abuse and that even a recent drug test indicated "negative" but still had a detectable level of methamphetamine. L.T.'s counsel also contended that appellant's assault of her sister signaled substantial anger issues even after having taken a parenting class. L.T.'s counsel further argued, "I don't think that that bond [between L.T. and appellant] is so strong ... that it justified endangering [L.T.] to the point of putting her with someone who has that kind of an anger issue and is still using drugs after two years of trying to deal with that issue." Finally, counsel argued that the law provides "almost no circumstance where you can go beyond the 24-month period for reunification services after the child is detained." Counsel added, "[A]nd May 9th, 2017, to today is pas[t] the 24-month period."
The court denied reunification services and scheduled a section 366.26 hearing.
In a report filed August 19, 2019, the Agency recommended that appellant's parental rights be terminated, and that L.T. be adopted. The Agency believed termination of parental rights would not be detrimental to L.T. because her relationship with appellant was merely that of a "friendly visitor."
At the section 366.26 hearing on September 11, 2019, the Agency argued that the law required adoption to be the permanent plan "absent truly exceptional circumstances where doing that and severing parental rights would be so detrimental to the child that it would offset any benefit that permanency and stability in an adoptive home would give a child." The Agency argued that exception did not apply to this case. L.T.'s counsel joined in the Agency's argument. Appellant's counsel requested that the court order long term foster care or guardianship, instead of adoption.
The court concluded that there was no evidence that any exception to adoption applied. Accordingly, the court terminated appellant's parental rights and set adoption as L.T.'s permanent plan.
DISCUSSION
A. Background Facts
Appellant argues the court should have declined to terminate parental rights because L.T. would benefit from "continuing the relationship" with her. (§ 366.26, subd. (c)(1)(B)(i).) We will first recite background facts relevant to this inquiry before analyzing the legal issue presented.
Because of the narrow issue on appeal, this opinion focuses on those facts relied upon to argue the beneficial parent-child relationship exception. (See In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557 [reciting only facts relevant to issue presented on appeal].)
1. Visitation and Placement
When L.T. was initially removed from appellant's care on May 4, 2017, she was about three and a half years old.
Near the beginning of the case, appellant wanted the court to be told that she was accustomed to "being around" L.T. and was willing to do everything to end the case.
From May 9, 2017 to November 9, 2017, appellant "demonstrated appropriateness during her supervised visits with [L.T.]." Appellant called when she was not able to make it to visits. During supervised visits, appellant and L.T. would color, watch videos and draw. When appellant began unsupervised visits on October 12, 2017, she was always on time to drop off and pick up L.T. During some of the visits occurring in this time period, L.T. did not want to leave appellant when the visit was over. No concerns were noted about these visits.
In the fall of 2017, L.T. was briefly placed with her maternal grandparents, and then with her presumed father, D.C. L.T. was then placed with her current foster parents on November 16, 2017.
From November 9, 2017, to May 29, 2018, appellant had unsupervised visits with L.T., beginning with one 8-hour day per week and progressing to two and then three 8-hour days. No concerns were noted. Overnight visits began on May 11, 2018.
In a report dated May 29, 2018, the Agency indicated L.T. exhibited sexualized behaviors and claimed her "father" touched her inappropriately.
On May 29, 2018, L.T. was placed with appellant.
In August 2018, appellant moved out of her grandmother's house after having "an altercation" with her mother.
In March 27, 2019, L.T. was detained and again placed with her current foster parents. At that point, appellant began weekly visits with L.T. Visitations went well, and the Agency had no concerns with them.
On June 28, 2019, the social worker observed a visit between appellant and L.T. Other family members were also present, and they all talked, colored, and ate snacks. While the visit was "appropriate," appellant sat with other family members most of the visit, and L.T. "had to initiate engagement with [appellant] on several occasions throughout the visit."
During a visit on July 17, 2019, L.T. referred to her foster parent as "mama."
At a visit on July 31, 2019, L.T. and appellant greeted each other affectionately. Then, L.T. played outside while appellant watched. Because it was hot that day, L.T. came inside. The two watched videos on appellant's phone for the rest of the visit. L.T. asked appellant why she had missed last week's visit. Appellant said she did not know about the visit.
By August 2019, the Agency assessed that L.T. had formed a "parent/child relationship" with her foster parents "as she looks to them to provide for her basic needs." L.T. was comfortable in their care and considered their home to be her home. L.T. called her foster parents "mama" and "papa." L.T. would go to them when she was upset, and they would "easily" soothe and comfort her. L.T. told the social worker that she likes living with her foster parents and feels safe in their care. L.T. drew a picture for the social worker of "her family" - which was a picture of her foster parents and their adoptive daughter. The foster parents were committed to adopting L.T. if parental rights were terminated.
On August 19, 2019, appellant and her grandparents sent a letter to the social worker raising certain "concern[s]" about L.T.'s placement. The letter said they were concerned L.T.'s weight might have dropped while in the foster parents' care. The foster parent took L.T. to her primary care provider who said L.T. was "gaining weight at a normal rate."
Appellant submitted other documents with similar allegations to the August 19, 2019 letter.
The letter also claimed L.T. had bruises on her arms at one visit. The Agency concluded the allegation was unfounded. The letter also said L.T. had a scratch on her face. However, the foster parent and one of L.T.'s clinicians said the scratch occurred at school.
The letter expressed concern that L.T. was unable to express her concerns to her foster parents because the primary language spoken in the home was Spanish. However, the foster mother spoke English and Spanish fluently. The social worker observed during home visits that L.T. was able to express her wants, needs, and concerns to the care provider.
The letter also claimed that L.T. told appellant and appellant's grandmother that her foster mother had been mean to her. The foster mother explained that L.T. says that when she does not get what she wants.
Finally, the letter described an alleged incident where L.T. was pulled into an above-ground pool where she could not touch the bottom while standing. The foster parent explained that the pool incident did not occur while L.T. was in her care. The foster parents do not have an inground or above-ground swimming pool, only a small wading pool for infants.
Appellant also submitted a letter signed September 3, 2019, asking that L.T. be adopted by L.T.'s former foster parents, with whom appellant had a good relationship.
2. Appellant's Case Plan
As of November 8, 2017, appellant had attended 14 individual therapy sessions. Appellant claimed the therapy is helping her "recognize herself" and "make better decisions."
Appellant had three clean drug tests from May 2017 to October 2017. Appellant completed the first phase of an Alcohol and Other Drug (AOD) program, which lasted 16 weeks. Between July and September 2017, appellant attended 28 Narcotics Anonymous/Alcoholics Anonymous meetings.
In October 2017, appellant completed an active parent group program at Kings View Counseling Services.
As of December 2017, appellant had not shown the social worker that she had a place she could live in with L.T. At some point, appellant moved into her grandmother's house. However, by May 2018, appellant was living with her boyfriend.
On January 8, 2018, appellant tested positive for methamphetamine. Appellant claimed she did not know why she tested positive and thought "a previous friend laced her cigarettes with methamphetamine." A test on March 19, 2018, came back clean.
On May 29, 2018, the court found appellant had made significant progress toward mitigating the issues requiring out-of-home placement and returned L.T. to her care.
Appellant failed to appear for drug tests on July 16, 2018; July 30, 2018; and August 6, 2018. When she finally did test on October 8, 2018, the test came back positive for methamphetamine. Nonetheless, appellant denied using methamphetamine.
Appellant's therapist in a nonoffenders sexual abuse program said appellant had three "no shows." However, appellant did meet with L.T.'s therapist for "collateral sessions." B. Appellant has not Shown Error in the Dependency Court's Refusal to Apply the Beneficial Parent-Child Relationship Exception to Adoption
1. Law
Generally, the law provides that at a section 366.26 hearing, the court "shall" terminate parental rights unless a statutory exception applies. (§ 366.26, subd. (c)(1).) Here, appellant invokes the beneficial parent-child relationship exception. That exception applies when the court "finds a compelling reason for determining that termination would be detrimental to the child" in that "[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) & (B)(i).)
" '[T]he burden [of proof] is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence.' [Citation.] [¶] To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits - the parent must show that he or she occupies a parental role in the life of the child. [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
Appellant did not prevail in the trial court. Therefore, the standard on appeal is "whether the evidence compels a finding in favor of the appellant as a matter of law. [Citation.]" (In re I.W., supra, 180 Cal.App.4th at p. 1528, italics added.) That is, "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.)
2. Analysis
Appellant emphasizes that L.T. had lived with her a substantial portion of her life, and visits between the two went well. However, appellant "must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits - the parent must show that he or she occupies a parental role in the life of the child. [Citation.]" (In re I.W., supra, 180 Cal.App.4th at p. 1527.) And while the portion of L.T.'s life spent with appellant is relevant (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643), then five-year-old L.T. had lived with her foster parents for a total of approximately one year (from November 2017 to May 2018, and from March 2019 onward) by the time of the section 366.26 hearing. In contrast, appellant and L.T. were only visiting weekly. By then, L.T. had formed a "parent/child relationship" with her foster parents "as she looks to them to provide for her basic needs." L.T. was comfortable in their care and considered their home to be her home. L.T. called her foster parents "mama" and "papa." L.T. would go to them when she was upset, and they would "easily" soothe and comfort her. L.T. told the social worker that she likes living with her foster parents and feels safe in their care. L.T. drew a picture for the social worker of "her family" - which was a picture of her foster parents and their adoptive daughter. In contrast, the Agency concluded that L.T.'s relationship with appellant was that of a friendly visitor. Any positive aspects of the relationship between L.T. and appellant were outweighed by "the security and the sense of belonging" (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.)) that was created by L.T.'s current family unit with her foster parents.
L.T. was near her sixth birthday at the time of the section 366.26 hearing.
Appellant also argues that she "substantially" complied with her case plan. She points to her completion of an AOD assessment, individual counseling, 12-step program, drug testing, and a parenting class. Eventually, she also acquired stable housing.
The Agency argues that appellant improperly relies on facts in the record that she did not cite to the dependency court in connection with the section 366.26 hearing. We need not reach that issue because even if appellant's reliance on such matters is permissible, she does not prevail on the merits.
Appellant argues that the court's ruling that it had received "no evidence" that an exception to termination applies, shows that the court "failed to exercise its discretion." Even assuming it was the dependency court's duty to scour the record for evidence bearing on the beneficial parent-child relationship - which we doubt - we take its statement as short-hand to mean there was insufficient evidence to establish any exception. In any event, we review the trial court's ruling, not its reasoning. (See In re Terrance B. (2006) 144 Cal.App.4th 965, 975, citing In re Natasha A. (1996) 42 Cal.App.4th 28, 38.)
However, appellant also failed to appear for three drug tests in 2018 and tested positive for methamphetamine in January and October of 2018. Additionally, appellant was a "no show" on three occasions for her nonoffenders sexual abuse program.
Even if appellant's progress on her case plan is accepted as evidence of her devotion to L.T. (cf. In re S.B. (2008) 164 Cal.App.4th 289, 300-301), we cannot say that evidence compels the application of the beneficial parent-child relationship exception as a matter of law. Any benefit L.T. might receive from her relationship with appellant must be balanced against L.T.'s interest in a permanent, loving home. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
In sum, while appellant points to some evidence that she loves L.T. and had positive visits, we cannot say their relationship overcomes L.T.'s interest in "the security and the sense of belonging" (Autumn H., supra, 27 Cal.App.4th at p. 575) that remaining with her foster parents would provide.
DISPOSITION
The orders are affirmed.