Opinion
G058844
08-03-2020
In re J.G., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.G., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Auerlio Torre, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18DP0729) OPINION Appeal from an order of the Superior Court of Orange County, Katherine E. Lewis, Judge. Affirmed. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Auerlio Torre, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
The juvenile court terminated the parental rights of M.G. (mother) over J.G. (the minor). Mother contends that the juvenile court erred by failing to find that the beneficial parental relationship bond exception set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) applied. Applying the standards of review, we conclude mother failed to prove the exception applied and therefore affirm the juvenile court's order.
Further statutory references are to the Welfare and Institutions Code.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In 2012, mother was diagnosed with traumatic brain injury after being shot in the head. Mother suffers from seizures as a result of her medical condition. Her injury also causes her to have memory problems and to be forgetful regarding her anti-seizure medication. Mother smokes marijuana several times a week to relieve pain from her headaches. Mother began using methamphetamine during her pregnancy with the minor, after the death of mother's brother.
In July 2018, mother gave birth to the minor. Mother tested positive for methamphetamine and marijuana at the time of the minor's birth, although the minor showed no signs of withdrawal and had no complications. Mother was attentive and appropriate toward the minor. At that time, mother was living with the maternal grandparents. The juvenile court issued a protective custody warrant for the minor, and placed the minor with a maternal aunt.
Soon thereafter, the Orange County Social Services Agency (SSA) filed a petition alleging that the minor was a dependent of the juvenile court because (1) mother failed or was unable to supervise or protect the minor adequately (§ 300, subd. (b)(1)) and (2) the alleged father had not provided for the minor's support (§ 300, subd. (g)). The juvenile court found a prima facie case that the minor came within the protections of section 300, detained the minor, and granted mother six hours of weekly monitored visitation.
The alleged father did not appear in the juvenile court proceedings and is not involved in this appeal.
Mother was generally on time for visits with the minor, always behaved appropriately, and was attentive to the minor during the visits. The maternal aunt, who monitored the visits, did not believe mother was ever under the influence of any substances during the visits. Mother failed to submit to required drug tests, attend 12-step meetings, or enroll in a substance abuse treatment program. Mother did comply with the case plan requirements that she enroll in parenting classes and counseling.
In a report prepared for the jurisdiction/disposition hearing, SSA recommended that mother receive family reunification services, "including but not limited to, substance abuse testing, substance abuse treatment, and 12-Step meetings, individual counseling, parenting education, and medication management."
At the jurisdiction/disposition hearing, mother submitted on the petition, and the juvenile court found by a preponderance of the evidence that the minor came within the provisions of section 300, subdivisions (b)(1) and (g). The court further found, by clear and convincing evidence, that it would be detrimental to vest custody of the minor with mother. At the end of the hearing, the juvenile court advised mother as follows: "And I also want to tell you, we're dealing with a very young child. And whenever we're dealing with a very young child . . . , it's really important to give the child permanency. [¶] And so what that means is, that you actually only have six months to show me that you can be a safe mother for [the minor]. Okay? [¶] So that means you've got to really do everything in your power to do the substance abuse program, get your testing to be clean. Make sure you make all your visits. And, do those things to show me that you can be a safe place for [the minor]'s return."
After the jurisdiction/disposition hearing, mother enrolled in a residential substance abuse treatment program. Mother was "compliant and actively participating" in the treatment program. Mother also "continued to be in compliance and has displayed progress and insight in all of her case plan activities . . . has been in compliance with all of her required drug tests . . . has continued to maintain[] compliance with her medical requirements . . . has tested negative for substance use at her residential substance abuse treatment program [and] continued to participate in 12-Step Meetings, parenting education program, as well as anger management classes."
Mother's visits with the minor, although more difficult due to her residential placement, continued and were "positive" and presented "no safety concerns." "The mother reports that she loves the child, she wants to reunify with the child." SSA expressed concern that mother had continued to communicate with a previous partner against whom mother had obtained a temporary restraining order (which was subsequently dismissed), without clear indication that the issues leading to the restraining order had been addressed. Despite the foregoing, SSA concluded in a status review report that "the prognosis for reunification between the child and mother appears to be minimal at this time."
In mid-November 2018, mother was kicked out of the residential treatment program because she tested positive for controlled substances and was thereafter found to be in possession of drug paraphernalia. After leaving the residential program, mother began testing through a drug patch. Between November 29, 2018, and January 17, 2019, all of mother's weekly tests were positive for amphetamine and/or methamphetamine and/or THC.
In December 2018, the minor was placed with the maternal grandparents. Mother missed a few visits with the minor after she left the residential treatment program, but the visits they had were appropriate and affectionate, and SSA was not concerned with the minor's safety. SSA believed the prognosis for reunification was moderate. "The mother continues to show that she accepts responsibilities for her actions in regards to her substance use and she recognizes the importance of maintaining her sobriety, and meeting the child's needs. The mother has continued to display a commitment to maintaining a positive, consistent relationship with her child. The mother has continued to display a desire to reunify with the child." The juvenile court ordered an additional six months of family reunification services.
In the 12-month status review report, SSA noted that mother had continued to participate in her case plan, and mother "has maintained a positive and consistent relationship with the child."
Mother's problems with substance abuse, however, continued. Mother was kicked out of two more substance abuse treatment programs for testing positive for drugs. Mother's drug patch tests had multiple positive test results for amphetamine and/or methamphetamine.
The minor enjoyed visits with mother, "smiles a lot" and appeared excited. The visitation monitor reported that the minor "immediately recognized the mother and was comfortable with her when she held [the minor]."
SSA recommended that family reunification services be terminated, and a section 366.26 hearing be scheduled. After a contested 12-month review hearing, the juvenile court found that returning the minor to mother's physical custody would create a substantial risk of harm to the minor's safety, protection, or physical or emotional well-being, and that reasonable services had been provided to mother. The court noted: "[T]he court does recognize mother has made steps to try and address her drug use. [¶] Unfortunately, I don't feel that we're making any substantial progress towards actually attacking that problem and to the degree that I could return [the minor] to you in a period of six months. [¶] So, I commend you for continuing to try. I realize that you have been in two separate residential programs since . . . this case began . . . so I see the desire is there. And I am glad to hear that you are continuing to try. And I want that desire to stay. [¶] Eventually with that desire is a lot of hard work. I'm sure it can come to you, but I can no longer let the child languish in a state of limbo in foster care[,] in order for you to show me that you can be a safe and stable place for [the minor]. [¶] So at this point the court . . . cannot find that there is a substantial probability that the child will be returned in six months." The court then terminated reunification services and set the matter for a section 366.26 hearing.
On the date set for the section 366.26 hearing, mother filed a section 388 petition asking the juvenile court to rescind its order terminating reunification services and setting a section 366.26 hearing, and to instead enter an order returning the minor to mother's custody and care, or alternatively an order reinstating reunification services. The petition asserted that mother had completed a 45-day residential substance abuse program on December 8, 2019, and was now clean and sober.
The juvenile court denied mother's section 388 motion. "At this time the court wants to indicate that although I am very proud of mother for completing a 45-day detoxification program, that's a huge step in the right direction but it's really the beginning of change. It's not the end result. [¶] The court does recognize that mother has struggled with addiction and has had fits and starts with different programs over the course of this case. And has stayed at certain programs, I think one even longer than 45 days. And, yet, still has been haunted with relapse afterwards. [¶] So at this time the court does not find there's been prima facie evidence that circumstances have changed. [¶] Further, with respect to the other prong of best interests of the child. The court does not find that the evidence supports that granting either of these requests would be in the best interests of the child. [The minor] is only one year old [and] deserves permanency and stability."
On the issue of terminating parental rights, the juvenile court admitted into evidence SSA's section 366.26 report and an addendum report, and mother testified. The minor's counsel joined SSA in recommending that the minor be freed for adoption. Mother's counsel asked the court to adopt "a less permanent plan, to allow [mother] to continue her services."
The juvenile court found (1) the minor was generally and specifically adoptable, (2) none of the exceptions to adoption applied, and (3) the permanent plan of adoption was appropriate. The court terminated mother's parental rights and placed the minor for adoption. Mother filed a timely notice of appeal.
DISCUSSION
On appeal, mother challenges only the juvenile court's finding that the beneficial parental relationship exception to adoption did not apply. This exception requires proof that the parent has maintained regular visitation with the child and that "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) Mother bears the burden of establishing the existence of both prongs of the exception. (In re E.T. (2018) 31 Cal.App.5th 68, 76.) In this case, the juvenile court found the first prong had been proven; SSA does not dispute this finding.
The beneficial parental relationship exception requires proof of a "substantial, positive emotional attachment such that the child would be greatly harmed" if he or she were deprived of an ongoing relationship with the parent. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The juvenile court must balance 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." (Ibid.) For the exception to apply, the child's relationship with the parent must be more than the type of relationship the child would enjoy with another relative or family friend. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) "'The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond.'" (In re E.T., supra, 31 Cal.App.5th at p. 76, quoting In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
The review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) We shall apply the substantial evidence standard of review to evaluate the evidentiary showing with respect to factual issues, such as whether a beneficial parental relationship exists. However, the determination of whether the existence of that relationship constitutes "'a compelling reason for determining that termination would be detrimental to the child'" is reviewed for an abuse of discretion. (Ibid.)
The issue of what standard governs appellate review of the beneficial parental relationship exception to adoption is currently pending before the California Supreme Court. (In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.)
At both the 12-month review hearing and the section 366.26 hearing, mother described her relationship with the minor as "wonderful" and "amazing." Mother testified that the minor was "so happy" to see her at visits, would call her "Ma Ma Ma," and would gesture to be picked up. The minor would cry at the end of visits.
However, the minor was very young and had never resided with mother. Indeed, since the minor's birth, mother had only interacted with the minor in the context of monitored visitation. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523 [showing required for exception "'difficult to make . . . where the parents have . . . [not] advanced beyond supervised visitation'"], overruled on other grounds, In re Zeth (2003) 31 Cal.4th 396.) None of the evidence mother presented established that her relationship with the minor was more than a pleasant one in which the minor enjoyed spending time with mother.
Mother cites In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) and In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) in support of her argument that the juvenile court's judgment should be reversed. We find both cases to be distinguishable. In Amber M., therapists, a court appointed special advocate, and the psychiatrist who conducted a bonding study all provided evidence that a beneficial parental relationship between the mother and the children outweighed the stability that would be provided by freeing the children for adoption. (Amber M., supra, at pp. 689-690.) Moreover, all three of the children had lived with the mother for a significant period of time before they were taken into custody (five years, two and one-half years, and seven months).
In S.B., the father was the child's primary caregiver for the first three years of her life, until she was taken into protective custody. (S.B., supra, 164 Cal.App.4th at p. 293.) For a year after the child was taken from the father's custody, she "continued to display a strong attachment" to the father. (Id. at p. 298.) The father "complied with 'every aspect' of his case plan." (Ibid.) The juvenile court found the father and the child had "an emotionally significant relationship," but nevertheless found that the father's relationship with the child was not parental in nature and that termination of the parental relationship would not be detrimental to the child. (Id. at p. 296.) The appellate court reversed the juvenile court's refusal to apply the beneficial parental relationship exception. (Id. at p. 301.)
In the present case, mother did not have a significant temporal relationship with the minor before the minor was taken into custody. Mother's visits with the minor during the dependency proceedings did not show the level of attachment that was seen in Amber M. and S.B., and mother's compliance with her case plan was not comparable to the compliance of the parents those cases. We find no abuse of discretion by the juvenile court in its determination that the beneficial parental relationship exception to adoption did not apply in this case.
DISPOSITION
The order terminating parental rights is affirmed.
FYBEL, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.