Opinion
D072151
09-27-2017
In re K.K. et al., Persons Coming Under the Juvenile Court Law. San Diego County Health & Human Services Agency, Plaintiff and Respondent, v. S.K., Defendant and Appellant.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Daniela Davidian, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. EJ3567A-B) APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent.
S.K. (mother) appeals from the juvenile court's order terminating parental rights for her two children. (Welf. & Inst. Code, § 366.26.) Mother contends there was insufficient evidence to support the court's finding of the children's adoptability. She further contends the court erred in failing to find the beneficial parental relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i)). As we explain, we disagree with both contentions and thus affirm the order of the court.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
In early July 2015, the San Diego County Health and Human Services Agency (Agency) filed section 300, subdivision (b)(1) petitions on behalf of K.K., born April 2008, and on behalf of A.K., born June 2012 (K.K. and A.K. are sometimes collectively referred to as minors). The petitions alleged there was a substantial risk minors would suffer serious physical harm or illness as a result of the failure of mother and father C.K. (father) (sometimes collectively referred to as parents), to provide regular care due to their mental illness, developmental disability, or substance abuse.
Father is not a party to this appeal.
The petitions further alleged that between May and June 2015, mother "used narcotics and/or dangerous drugs, to wit, methamphetamine, to excess, as evidenced by, but not limited to, the mother's admission that she has an 11[-]year history of using methamphetamine and recently relapsed and tested positive for amphetamine. The mother is homeless and has been residing in a truck and abusing drugs and her behavior has been erratic and violent and her drug abuse has rendered her unable to provide regular care for [minors] and [minors'] father is incarcerated and has failed to protect and supervise [minors who are] in need of the protection of the Juvenile Court."
Further, as to A.K. only, the petition alleged he was exposed on or about June 17, 2015, to a "violent confrontation" between mother, who appeared under the influence, and the paternal great-grandmother, C.A. After mother became upset, mother punched C.A. in the face while C.A. was holding A.K. The petition also alleged mother's "erratic behavior" and ongoing drug abuse placed A.K. at substantial risk of serious physical harm.
In connection with the petitions, Agency filed an application for protective custody warrant on behalf of minors. In the application, Agency noted that in late May 2015, it received a child abuse hotline call concerning general neglect for K.K. and A.K., as mother was suspected of using methamphetamine and living in her truck with A.K. Agency reported that mother was arrested on May 24, 2015, as a result of two open warrants for illegal lodging and being under the influence; that C.A. was called and was able to take A.K. into her care on mother's arrest; and that A.K. was dirty and the following day, was sick with a high fever. At the time, K.K. was living in the home of maternal grandmother. On June 10, mother tested positive for amphetamine.
Agency received a second referral on June 19, 2015, after the San Diego Sheriff's Department was dispatched to C.A.'s home on June 17, when mother assaulted C.A. (as noted ante). The referral stated that on June 17, mother arrived unannounced to visit with A.K. on his birthday; that C.A. believed mother was under the influence as mother's eyes were "crazy blown out"; that when C.A. informed mother she could not visit with A.K. because of her condition, mother attempted to take A.K. from C.A.'s arms; and that, when unsuccessful, mother punched C.A. in the face. Mother next walked outside and pointed a finger at C.A. "like [mother] was shooting . . . a gun." C.A. filed a restraining order against mother on June 26.
The following day (i.e., June 20) when contacted by an Agency social worker, mother admitted striking C.A., and, when asked about her failed drug test, she also admitted to using methamphetamine about two weeks earlier, but denied she needed treatment. Mother had a prior dependency case when A.K. tested positive for methamphetamine at birth. Although mother successfully reunited with A.K. after she completed six months of services, she admitted relapsing. The court granted the warrant application on July 2.
The July 6, 2015 Agency detention report generally relied on the same information used to support the protective custody warrant. Agency's July 6 report recommended mother be offered reunification services; parents have liberal supervised visitation; and mother be referred to a substance abuse specialist for assessment. Agency further recommended father not receive reunification services because he began serving an eight-year prison term for first degree burglary and assault charges in June 2013.
At the July 6 detention hearing, the court made prima facie findings on both petitions; ordered minors detained in licensed foster care, but provided Agency with the discretion to evaluate all appropriate relatives to determine whether minors could be detained with an appropriate relative caregiver; and ordered liberal and supervised visits for the parents, with father's visits to be by telephone only.
In its August 11, 2015 jurisdiction/disposition report, Agency recommended mother be provided with reunification services; father not receive such services; K.K. be placed with a nonrelative extended family member (NREFM); A.K. be placed back with the paternal great-grandmother; that mother's visits with minors be liberal and supervised; and that mother be assessed by a substance abuse specialist.
During this reporting period, Agency noted that mother missed a prearranged visit with minors on July 30; that when mother was interviewed on July 23 by an Agency social worker, mother appeared "uninterested," as she had her head rested in her hands for most of the interview; that during this same interview, mother was evasive and expressed her belief that C.A., whom mother referred to as a "Wino" and as "sadistic," was responsible for mother's involvement with Agency; and that, although mother and A.K. had been living in mother's truck for two or three months while K.K. lived with her maternal grandmother, mother nonetheless reported that she and A.K. had been "doing well, going to church every Sunday" until C.A. called "CPS" on mother.
The Agency's August 11 report also described a phone interview with mother on July 15. During that interview, mother admitted that she had a problem keeping steady employment; that she had been referred to a substance abuse program by a substance abuse specialist, but had been unable to make the appointment because her car allegedly had broken down; that she was homeless and was unfamiliar with taking a bus, despite being given bus passes by the specialist; and that she did not believe it was necessary to meet in person with an Agency social worker to discuss her need for services because she would "rather tell the Judge in person."
The Agency social worker confirmed mother was a "no-show" for her scheduled intake at the substance abuse program. During the July 23 Agency interview, mother admitted using methamphetamine "off and on" since she was 15 years old. Mother also insisted minors be placed with the maternal grandmother. When an Agency social worker informed mother that Agency could not approve the maternal grandmother, mother raised her voice and stated, "How can you tell me where my kids can live. She is my mother and if I want my kids to live with my mother, they will."
On August 3, an Agency social worker assisted with the change of placement of A.K. from licensed foster care to C.A. According to the August 11 report, when A.K. saw his paternal great-grandmother, he smiled, jumped up and down and showed no hesitation leaving with C.A. The August 11 report also noted that minors were both healthy and happy; that K.K. was developmentally on track and was bright and articulate; and that A.K. was to receive a developmental screening because at times his speech was difficult to understand and he displayed defiant behaviors.
Agency's August 31, 2015 addendum report noted mother had not visited minors after being a "no-show" at the July 30 visit, despite Agency's efforts to schedule such visits. This report further noted that mother was "canning (recycling)" to get money; that mother made enough money to "buy a pack of cigarettes"; that she was then under "constant stress" and her "mind" and "heart" were "not okay"; and that she claimed she needed to sell her truck in order to enter into a substance abuse program.
On August 31, 2015, the juvenile court made true findings on the minors' petitions. On September 11, 2015, it declared minors dependent children of the court, after finding by clear and convincing evidence minors should be removed from the custody of mother pursuant to section 361, subdivision (c). It ordered K.K. placed in the home of a NREFM and A.K. placed in the home of an approved relative. It also ordered Agency to provide mother services consistent with her case plan and mother to comply with those services. The court set the six-month review hearing for March 9, 2016.
In its March 9, 2016 status review report, Agency recommended that mother's reunification services be terminated, that minors remain placed in out-of-home care, and that the court set a 366.26 hearing to select a permanent plan for minors. During this reporting period, Agency noted that mother remained homeless and unemployed; that communication with mother had been challenging because mother did not have a phone; that despite its many attempts, Agency did not make contact with mother until January 8, 2016; and that since making contact with Agency, mother had not made any progress in services or visited minors.
Specifically, the March 9 report noted mother had not enrolled in a substance abuse treatment program per her case plan. Mother also failed to participate in education/parenting services and counseling/mental health services. This report further noted minors were doing well in their respective placements and C.A. was willing to become the permanent caregiver for K.K.
On March 4, Agency filed a section 388 petition seeking a change in the court order from granting mother services to terminating such services. Agency's petition alleged this change was necessary because mother neither made any progress in services nor visited minors during the six-month review period. The court set the matter for an evidentiary hearing on March 24 to coincide with the contested six-month review hearing.
Agency filed an addendum on March 24 in connection with that hearing. Agency's recommendations from its March 9 report remained the same. Agency noted C.A. had moved into a larger home and could now care for both K.K. and A.K. It confirmed the maternal grandmother could not be approved for placement.
At the March 24 hearing, the court found by clear and convincing evidence that there was a substantial likelihood that reunification between mother and minors would not occur because of the "inaction of the mother, including, but not limited to, [her] failure to visit [and her] failure to participate and make progress in court-ordered treatment programs." The court further found there had been a change in circumstances and granted Agency's section 388 petition, finding it was in minors' best interests to do so. The court set a section 366.26 hearing for July 2016.
Agency's July 21, 2016 section 366.26 report noted mother's whereabouts remained unknown. Agency also noted that C.A. wanted to assume legal guardianship of K.K. and A.K.; that during the reporting period K.K. had been placed in C.A.'s home where she lived with her brother A.K.; and that, if C.A. was unable to assume such guardianship over K.K., there were 15 families in San Diego approved to adopt a child matching K.K.'s characteristics. As to A.K., Agency noted he had some behavioral issues but with services, he was making steady progress while living with C.A. for the past 11 months. If C.A. was unwilling or unable to assume guardianship over A.K., Agency's July 21 report noted there were 40 families in San Diego approved to adopt a child matching A.K.'s characteristics. Finally, Agency noted there were 10 families in San Diego approved to adopt a sibling set matching K.K.'s and A.K.'s characteristics.
The July 21 report noted C.A. at that time preferred legal guardianship over adoption because she hoped father one day could reunite with minors. C.A., however, made clear that regardless of father's situation, she was committed to providing minors with a "safe, stable and permanent home."
The July 21 report stated that C.A. "has known the minors since they were born. She reported that the minor, [A.K.,] was placed in her care when he was 3 days old, following the removal from the mother due to general neglect and exposure to parental substance abuse that resulted in him testing positive for methamphetamine at the time of his birth. Furthermore, the paternal great-grandmother reported both [K.K.] and [A.K.] have resided in her care for extended periods of time while the parents were making poor lifestyle choices that were not conductive to effectively care for the children. As a result, over time, the minors grew very close to the paternal great-grandmother because they looked to her as the adult in their lives who was responsible for ensuring that all of their needs were met. It is clear that the paternal great-grandmother loves the minors and wants the best for them."
A Voices for Children court-appointed special advocate (CASA) report, prepared in connection with the section 366.26 hearing, supported Agency's assessment that minors were thriving in their placement with C.A. (See generally §§ 100 et seq. & 101, subd. (c) [defining CASA].) Specifically, the CASA stated that she had visited minors in the home of C.A. three times during the applicable reporting period; that it was evident C.A. and minors had "a close relationship and . . . there is a lot of love in the home"; that C.A. "provides structure in the home"; and that C.A.'s home "is an excellent placement for the children. . . ." Thus, the CASA recommended termination of parental rights and C.A. be granted guardianship of K.K. and A.K. The juvenile court set the section 366.26 hearing for August 4.
In its August 4, 2016 addendum report, Agency reported mother had left a voicemail message with an Agency social worker on August 2, reporting she "has been in detox . . . for 5 days and plans to enter inpatient treatment . . . once there is an opening." Mother requested the August 4 hearing be continued and indicated she wanted the court to know she "wants her children back." The court in response continued the section 366.26 hearing to August 18, which was subsequently continued to late January, mid-March, and late April 2017.
In its December 7, 2016 addendum report, Agency reported that C.A. preferred adoption of minors over legal guardianship. Because Agency sought the most permanent plan for minors, it determined adoption was most favorable for providing permanency for K.K. and A.K.
Agency's December 7 report summarized eight visits between minors and mother during the reporting period. Mother's visits with minors were overall appropriate, as mother was affectionate and tended to the needs of K.K. and A.K. during the visits. At the conclusion of the visits, however, neither K.K. nor A.K. "displayed . . . visible signs of distress" when departing from mother. Before the visit on October 22, C.A. reported K.K. was "hesitant to attend the visit" and "had begun wetting the bed since visits with [mother] were reinstated." C.A. further reported that K.K. also did not want to visit with mother on October 29 and that, before the November 5 visit, K.K. again did not want to attend the visit with mother.
The December 7 report stated father also visited with minors while he was incarcerated.
In recommending termination of parental rights and adoption as the permanent plan, Agency evaluated the relationship between minors and mother as follows: "The relationship . . . does not rise to the level of a parent-child relationship. Between July 2015 and March 2016, [mother] had little contact with the Agency and despite expressing the desire for visitation, she never followed-up to schedule visits. The absence of [mother's] visits has prevented the children [from] develop[ing] an attachment to her and to see [mother] as a parent figure. The relationship demonstrates a friendly non-parent relationship in which they view [mother] as an older family member but do not look towards her to meet their emotional and physical needs. [A.K.] has demonstrated during visits that he enjoys playing with [mother] but ignores her requests to help clean or simple instructions to settle down. In some instances, [mother] required the intervention of the monitor to help parent and instruct her children on behavior and to listen to [mother's] requests. It has also been reported that [K.K.] has begun bedwetting since [mother] began her visits in October 2016. [Mother] has been affectionate and appropriate with the children however the relationship is not significant enough that the children have demonstrated their ability to stabilize in her absence. Moreover, [K.K.] has expressed her disinterest to visit [mother] on 3 occasions and declined to visit on 2 occasions. The children appeared happy when visiting with [mother] but neither have shown any distress at the conclusion of visits." Agency thus concluded that adoption would provide the children "with a sense of permanency and stability. It is evident that the benefits of adoption (i.e., protection, support, security) outweigh the current relationship that [father] and [mother] have with the children."
Agency submitted two separate January 24, 2017 reports, one in connection with the pending section 366.26 hearing and another in connection with a section 388 petition mother had filed on January 3, 2017. As relevant to this appeal, Agency noted in its January 24 section 366.26 report that during this reporting period, mother continued weekly supervised visits with minors. The report further noted during two conversations between K.K. and an Agency social worker, K.K. indicated she "hoped [her] mom got better so [she] could live with her again" but also indicated "she would be happy if she lived with her caregiver forever but also sad because she loves [mother]." A.K. told the social worker he would be happy to live with C.A. forever.
Mother actually filed two section 388 petitions, one on January 3, and another on March 15, 2017. Both petitions requested the court change the order terminating her reunification services and either return minors to her care or reinstate such services and allow her unmonitored visits with minors. The court summarily denied both petitions, which orders mother separately appealed. (See case Nos. D071645 & D072035.) This court, on April 24, 2017, granted mother's unopposed request to consolidate case numbers D071645 and D072035. Mother, however, did not request the instant appeal also be consolidated with her appeals from the denial of her section 388 petitions.
Agency's January 24 section 366.26 report continued to recommend the permanent plan of adoption for minors, stating in part as follows: "The children have been thriving in their current placement and the caregiver has expressed interest in adopting them together. During this reporting period, [mother] has maintained regular contact with the children but the relationship does not rise to the level of a parent-child relationship and there would not be detriment if parental rights were terminated. Adoption would be in the best interest for the children, providing them a secure and permanent home.
"During this reporting period, there have been 8 scheduled visits. This writer observed 3 visits. . . . [Mother] attended all scheduled visits and was consistently on time. During the visits, [mother] was affectionate towards [K.K.] and [A.K.] as evidenced by saying, 'I love you' and hugs and kisses. [Mother] at times was challenged with re-directing the children as evidenced by the need to repeat herself several times or when a child refused to obey directions. The children did not show significant behaviors at conclusion of visits.
"[¶] . . . [¶]
"[Mother] has been appropriate with the children but has not been able to develop a strong parent-child relationship. During 2-hour visits, [mother's] role as a parent has been challenged by the children as evidenced by their refusal to listen or to respond to re-direction. The ambivalence of [K.K.'s] behavior of 'spitting' on [mother during one of the visits] or disobeying her, indicates [K.K.'s] confusion and frustration about her feelings towards [mother]. By establishing permanency and stability in her life, [K.K.] will heal and overcome her confusing feelings. Furthermore, the children are able to see [mother] 1 day a week and yet, [K.K.] has chosen not to attend 3 visits and [A.K.] has chosen not to attend 1 visit during this reporting period. The children do not display any significant behaviors at the conclusion of visits revealing the children's resiliency and ability to separate from [mother]. Thus, it would not be detrimental if [mother's] parental rights were terminated.
"It is also important to evaluate whether the permanent plan of adoption outweighs the benefits of maintaining parental relationships. [K.K.] and [A.K.] have had previous CWS involvement and reunified with mother in August 2013. The children were removed again in June 2015. [K.K.] has had 3 placements since coming into dependency a second time. [A.K.] has had 2 placements since coming into placement a second time. There is a need for permanency in [K.K.'s] and [A.K.'s] lives as they both have experienced multiple placements and removals. The caregiver has provided a sense of belonging for the children that they have expressed satisfaction with the prospect of living with her forever. The children have been returned to [mother] after completing reunification services but after less than 2 years the children's safety was compromised again and required the protection of the Agency. Moreover, [mother's] and [father's] absence from the children's lives during critical stages of development has hindered the parent-child relationship. If parental rights are not terminated, the instability could have a long lasting impact that has already started with their ambivalence towards [mother].
"The children are just developing stability in their current placement. This stability has allowed them to create new friendships, participate in extracurricular activities in school, and to develop a healthy attachment with their caregiver. Adoption will secure the children with a sense of permanency and these benefits outweigh the current relationship they have with [mother] and [father]. Therefore, the Agency respectfully continues to recommend the termination of parental rights and for the Court to order a permanent plan of adoption."
At the March 15 contested section 366.26 hearing, the record shows mother cross-examined an Agency social worker. The social worker testified that the visitation center monitors provided Agency narratives of visits that included such categories as "demonstrates a parental role"; "demonstrates a knowledge of the child's development"; "responds appropriately to child's verbal or nonverbal signals"; "puts the child's needs ahead of [his or her] own [needs]"; and "shows empathy toward the child." The social worker agreed that the visitation center logs showed mother consistently satisfied each such category during her visits with minors; that mother also consistently demonstrated a "loving affect" toward minors during visits and was a "good role model" for minors; and that in the preceding two months, A.K. did not want his visits with mother to end.
The social worker further testified that the visitation logs also showed that, on more than one occasion, minors were excited to see mother; that mother brought age-appropriate activities for minors; that mother on more than one occasion engaged in reading activities with minors; and that mother was able to "soothe" minors when they got upset and was able to redirect minors.
Before the Agency social worker completed her testimony, the parties agreed to have minors testify as they were then present in court. K.K. testified that she loved mother "very much"; that she liked visiting her mother; that she would like to spend time with mother outside the visitation center; that when she is sad during visits she feels better when mother hugs her; that sometimes when she is sad and not with mother, she pretends mother is hugging her to make her feel better; and that she gets the "same feeling" from her maternal grandmother and paternal great-grandmother.
On further questioning, K.K. stated that she derived more "power" from hugging mother than "grandma," which made K.K. "really happy"; and that in her mind, the maternal grandmother and paternal great-grandmother could "take the place" of mother.
During cross-examination, K.K. clarified that, if she was being hugged at the same time by the maternal grandmother and the paternal great-grandmother, it would equal the "power" she felt from one hug with mother. K.K. further testified that she liked living with the paternal great-grandmother; that she felt taken care of in her home; and that she believed she would still get to see mother if she was adopted by the paternal great-grandmother. K.K. also testified that it had been a "long time ago" when she last lived with mother, perhaps when she was five or six years old; that she was about to turn nine years old; and that in the beginning she did not want to visit mother but recently she "love[d]" visiting mother.
The record shows the court then questioned K.K., including what it meant to be adopted. K.K. testified that if she was adopted by the paternal great-grandmother, "half of me would be missing because I'm not with my mom. But I'd still be happy with my grandma at the same time." On recross-examination, K.K. stated she trusted mother and the paternal great-grandmother. When asked the difficult question of whether she trusted one more than the other, K.K. stated that was "hard" to answer, but that her mother "brought [her] to this world" and thus, she trusted mother "more."
The record shows A.K. also was called, but could not be qualified, as a witness.
Agency's April 26 addendum report, prepared in connection with the continued contested section 366.26 hearing, continued to recommend adoption as the permanent plan for minors. This report described a visit between minors, mother and the maternal grandmother on April 8 that was also attended by the Agency social worker who had testified at the March 15 hearing. This same social worker also attended five other visits beginning in mid-October 2016 through the April 8 visit. During the April 8 visit, the social worker observed A.K. jump on mother. When mother attempted to stop A.K. from jumping on her, A.K. punched mother four times on the head. A.K. refused to say he was sorry when prompted by mother, and instead began laughing. As mother continued to hold A.K., he told mother she was hurting him. Mother responded, "Well, you're hurting me. Are you sorry now." A.K. then apologized.
The record shows the court excluded from this report a summary of a telephone conversation between an Agency social worker and the family visitation coordinator. The record also shows the CASA on April 21, 2017, submitted an additional report in connection with the contested April 26 hearing that the court did not admit into evidence.
About 30 minutes before the two-hour visit ended, K.K. became angry with mother when she attempted to interact with both children. K.K., who had been drawing, threw her marker on the floor and said, "I don't want to play with you guys anymore. I want to go home and go to bed. No one's paying attention anymore." When the monitor informed K.K. there was only 30 minutes left, K.K. said, "I want to go now. That's half an hour." K.K. then got up, went into another room and began crying. When mother followed K.K. into that room, K.K. ran out and went into yet another room, laid down in the corner under some pillows while clutching a teddy bear. When mother and A.K. entered that room, K.K. again left and went to a different corner in a different room, still holding the teddy bear. When mother grabbed K.K.'s arm and urged her to stay, K.K. pulled away from mother and "used the door jamb for grip in order to get away from [mother's] hold. [Mother] let go of [K.K.'s] arm and [K.K.] lied down on the floor of the other room."
Near the end of the visit, mother asked K.K. to help clean up. The April 26 addendum noted K.K. ignored mother and instead hummed to herself. K.K. then asked the monitor when they were leaving. At the end of the visit, mother told minors she loved them and minors responded they loved mother as well.
During this visit, the Agency social worker spoke with the visitation monitor while mother tended to the children. The monitor reported the April 8 visit was typical of minors' behavior during visits with mother. The monitor further reported minors were "fine" after the visits and showed "no behaviors on the car ride home."
In connection with the monitor's narrative log of the April 8 visit, the Agency social worker noted the monitor had checked the box indicating K.K did not want the visit to end, when in fact it was "clear that [K.K.] wanted the visit to end and groaned when the monitor told [K.K.] there was 30 minutes remaining." While the Agency social worker noted mother was "appropriate" in visits with minors, as reported by the narratives prepared by the monitors, the social worker also noted mother's relationship with K.K. and A.K. did not demonstrate a significant parent-child relationship.
In support of this opinion, Agency's April 26 addendum stated in part as follows: "[Mother] has not been able to demonstrate the existence of a strong parent-child relationship that would warrant the need to maintain parental rights. During this reporting period, [A.K.] has declined to visit 1 time and [K.K.] gas declined to visit 2 times. The children are aware that their caregiver intends to adopt them and have developed an understanding that it could mean fewer visits with [mother]. The children's choice to decline a visit is indicative of their ability to separate from [mother] with ease. [Mother's] relationship with [K.K.] and [A.K.] is more of a 'friendly visitor' relationship since [K.K.] and [A.K.] have not developed a strong attachment to [mother]. It appears the children are accepting of adoption since they still decline visits when they know they could possibly see [mother] less than they currently do. The monitor pointed out that [mother] has difficulty redirecting the children and has had to intervene in order for the children to behave appropriately. The children were more inclined to listen to the monitor's redirection despite [mother's] multiple prompts. This suggests that the children do not see [mother] as a parental figure to whom they should abide. The children come to the visits with the expectation of playing and even within the 2-hour limit [mother] is unable to successfully demonstrate a parental role. This is evidenced by the monitor's observation that [mother] has not been able to use a timeout or any other disciplinary action. Even as the children vie for [mother's] attention, they quickly become disinterested in the visit when they are unable to obtain it. This type of behavior suggests that the children do not look towards [mother] to meet their needs as they would a parental figure. This is specifically highlighted in the 4/8/2017 visit when [K.K.] wanted to go home after being unable to win [mother's] attention. Once [K.K.'s] expectation to play and talk to [mother] was shattered, she began to avoid [mother]. [K.K.] did not listen to [mother's] requests to clean up and instead [mother] gave into [K.K.'s] disobedience and cleaned up after her mess. [K.K.] did not give [mother] the type of respect given to a parental figure and looked forward to going home to her caregiver where her emotional and physical needs are met. . . . While the children enjoy visits with [mother], it is evident that the children do not expect her to provide for their emotional and physical needs. Thus, it would not be detrimental to terminate parental rights.
"Adoption provides the children with a sense of permanency and stability that they have lacked in their earlier years under the care of [mother]. This led to a weakened relationship that did not rise to the level of a parent-child relationship. The children have demonstrated over time their ability to separate from [mother] with ease and continue to thrive in her absence. It is evident that the benefits of protection, support, and security from adoption outweigh the current relationship that [mother] has with [K.K.] and [A.K.]." Agency therefore recommended termination of parental rights and adoption as the permanent plan for minors.
The record shows the same Agency social worker who had previously testified retook the witness stand at the continued April 26 section 366.26 hearing. The social worker testified there were "discrepancies" between what she personally observed during visits between mother and minors and the visitation logs relied on by mother in her attempt to show a parent-child relationship. The social worker further testified there were "multiple occasions" during visits when both K.K. and A.K. neither looked to mother for comfort nor responded to mother "showing care and concern" for her. The social worker also testified that visitation monitors were not qualified to make adoption assessments; that the visitation logs were "short and brief" and involved "checked boxes" and then a "short . . . narrative for [the monitors] to put in any behavior-specific things that the monitor may have seen"; and that the monitors' role is to assure "safety and appropriateness" in the visits, inasmuch as it is not always possible for an Agency social worker to attend each and every visit.
The social worker next was asked about K.K.'s testimony that K.K. brings art supplies to the visits with mother. The social worker found this testimony important because in her opinion, it showed "parentification." According to the social worker, K.K. was "parentified in the sense that she's offering an activity for the family to enjoy when it should be the parents who bring an activity or direct the mode of how these visits will go." With regards to K.K.'s testimony that if she was adopted, part of her would be sad and part of her would be happy, the social worker testified this was consistent with her own conversations with K.K.; and that in opining the permanent plan of adoption was in the best interest of K.K., the social worker had considered K.K.'s wishes.
On this issue, the social worker testified, "So [K.K.]—she will say yes, she wants to be adopted. And at the same time she'll also talk about how she loves her mom, and she'll miss her mom. She did say to me and I've had reported this in a report that she has said she would like to live with her mom. These disorganized behaviors are very telling of how's she in this trust-mistrust phase with her mom. Again, it's showing how there is a weakened parent-child relationship."
When asked to explain what she meant by "trust-mistrust," the social worker stated: "So naturally, when a child—a child will, because they're weaker and they are young, they look towards a parental figure. That would be the mom. That would be the dad. Instinctually they are looking towards a parent to meet their physical, emotional needs. Now, at an early age if that is—if they experience loss or if they experience trauma, then that trust is violated. And so now they have these disorganized behaviors where they know instinctually they should be looking toward a parental figure to meet their needs, but because the trust has been violated, they don't know how to remedy that. They don't know how to react towards their parent who is supposed to be meeting those needs. But since it hasn't been met, then they have these other adverse reactions." The social worker added K.K. was exhibiting this specific behavior.
In the social worker's opinion, it was C.A.—and not mother—who was meeting the "physical and emotional needs" of both K.K. and A.K.
The record shows mother called Laura S. as a witness at the section 366.26 hearing. Laura testified she was best friends with the maternal grandmother and thus, had known mother since mother was a baby. Laura further testified that her own daughter, Melissa, was the NREFM who had taken care of K.K. for about a year during the most recent dependency; that Laura also lived in Melissa's home; and that Laura interacted every day with K.K. Prior to dependency, Laura testified she saw mother and K.K. interact when Laura would visit the maternal grandmother. Laura observed mother and K.K. were always doing things together and the two seemed bonded and close.
After dependency, Laura testified that she had an opportunity to observe visits between mother and minors at Melissa's home. During one or two of these visits, A.K. also would visit. Laura described A.K. as being "clingy" with mother during such visits. Laura testified the last visit she observed between mother and K.K. was about May 2016.
While K.K. was living with Melissa, according to Laura K.K. "every day" would ask about mother, including wanting to know when mother was coming home. Laura described K.K. as "always" being "sad" during the year K.K. lived with Melissa. Laura further testified that in her view as a layperson, K.K. would be "devastated" if she was unable to see mother again; and that after visits with mother when K.K. was living with Melissa, there was a positive change in K.K.'s behavior.
Mother also testified at the April 26 section 366.26 hearing, including that she cared for K.K. for about seven years; that she visited with K.K. every Saturday; that she spoke by phone to K.K. almost every day at 6:00 p.m., her designated time to call; that when visits started K.K. was "always excited"; that when both K.K. and A.K. visit, K.K. tended to get jealous and emotional "really quick"; and that K.K. in response would "march" into another room and "separate" from mother.
Mother described an April 22 visit during K.K.'s birthday party, which was also attended by other relatives and friends of K.K. Mother stated K.K. was excited to introduce mother to her friends; that before K.K.'s friends arrived, mother and K.K. played and went on rides; and that while the birthday party went on, C.A. was seated at a table in a separate room from the children.
Mother testified she and K.K. shared a bond "in every sense" because they were so much alike. According to mother, K.K. "gets very emotional if she thinks that I'm not for any reason, you know, giving her the amount of love and attention that she's wanting." Mother also testified that in visits over the last six months, K.K. has stated she wanted to spend more time with mother, at times telling mother when visits ended, "I'm not ready to go."
With respect to A.K., mother testified that during his visits he "comes charging straight at me . . . [a]nd . . . he won't let go." Mother further testified that A.K. initially was removed from her care when he was three days old; that A.K. was returned to her care the day she graduated KIVA, in February 2013, when he was about seven months old; and that he remained in her care until he was removed a second time, when he was almost three years old. As a result, mother stated she and A.K. were bonded. Mother described A.K. as her "little duckling" because he would follow mother everywhere.
When asked if A.K. would be emotionally impacted if parental rights were terminated, mother stated A.K. was "very bonded" with C.A. "just the same as he's very bonded with me." Mother stated the difference between A.K. and K.K. being bonded to her and C.A. was their age. Mother also stated minors would be negatively impacted if they were separated from each other.
Mother testified that she had been clean and sober for about nine months; and that unlike her last dependency, this time she had hit "rock bottom" and had come "into recovery at a level of desperation for change."
Finally, the CASA was called as a witness. The CASA testified that she had been assigned to this case in March 2016, and that she was in "full support of adoption" for minors.
After hearing oral argument and considering all the evidence from the multi-day contested section 366.26 hearing, the court ordered parental rights be terminated, finding adoption of minors was in their best interest. The court noted it had spent a great deal of time making what it found was a "very difficult" decision in this case primarily because of K.K.'s testimony. In reaching its decision, the court stated in part as follows:
"So the case law is clear that the person must occupy a parental role in the child's life. I'd like to examine this in terms of [K.K.], because she's nine years old. First of all, I want to admit that [K.K.'s] testimony was compelling and the most important evidence regarding the [beneficial parental relationship] exception.
"Because the boxes [in the narrative logs] were checked or that the boxes weren't checked or because the child is seeking attention from one parent—I mean, these supervised visitations in a room are not ideal. But why are they there? Because parents didn't do what they were supposed to do. There is nothing we can do about that. So that does cause a problem. It truly does. But that's not what's really important here. She loves her mom. She would miss her greatly if the visits stopped. And I suspect she would have some emotional issues to deal with if, in fact, she never saw her mom again.
"I'd like to now go to what was [K.K.'s], quote-unquote, parental experience during the nine years of her life. If it's a parent-child bond we have to consider, the nature and the quality of that bond—[A.K.] was born in June of 2012. [K.K.] was about four at that time. I note that [K.K.] at that time was being parented by a mother who would occasionally take Adderall for energy. She wasn't getting that from a pharmacist.
"The description in the detention report of the mom's behavior and her affect in the hospital at the time of [A.K.'s] birth suggests that the parenting of [K.K.] was leaving much to be desired. Mom has admitted to a history of depression and anxiety since [K.K.] was born. She further admitted that she quit using meth three months into [K.K.'s] pregnancy and then relapsed when [K.K.] was five months old. She basically admits she was battling substance abuse after that.
"So [K.K.] was being raised in a home where a mom was actively using drugs at least on and off. Now, although mom said she hit rock bottom now, according to the report she admitted she hit rock bottom in October 2010 as [K.K.] was about two or three.
"Mom says she lost her car, apartment, and husband and went to rehab. I don't know how good that rehab was because in 2012 she also reported her sobriety date of June 15[], 2012, obviously inferring there was much more drug use from October 2010 when [K.K.] was two or three through June of 2012 when [K.K.] was four to five. So during that time she was parented by a mother who was, at the very least, on and off using drugs as a single parent or with a guy who is in custody right now.
"So the first dependency when [A.K.] was born lasts from June 21st, 2012, until August 20th of 2013. Mom is clean during that period of time. So that's about 14 months. The kids, I would note, were out of the home for eight months of that time. It wasn't a hundred percent clear, but it looked like they were returned on a 60-day visit sometime in April of that year.
"Well, two years later we have a new petition, and the petition speaks for itself. In reviewing again the detention report and jurisdiction report for this particular case, it's unclear when the mom again relapsed. But it's clear that the mother was kicked out of her mother's house in March of 2015 and was living in a camper with the kids. [C.A.], the current caregiver—and this was back then at the time of the detention—indicated she suspected the mom was using drugs based on her history with the mom and the fact she could tell when she was using. Mom was also arrested in May of 2015. I'd also note she had a physical confrontation with [C.A.].
"Reunification services were offered. No progress was made. There [were] no visits from December 15[] through September 2016, a period of nine months. So based on the evidence it's very difficult for this court to find that there was ever an extended period of time when mother provided true day-to-day parental care, nourishment, comfort, affection, and stimulation.
"Review of the file indicates that it was basically a home of controlled chaos and minimal stability. So was that resolved during these supervised visitations over the last few months or over the last nine months? Especially in [K.K.'s] case, I can't say that. You can't make up for years of a controlled chaos with weekly supervised visitation. Truly, I believe, mother is a friendly visitor in the Autumn H. [(1994) 27 Cal.App.4th 567] analysis.
"Now, make no mistake about this. [K.K.] loves her mother, and again, will miss her greatly. She would suffer emotional turmoil in not seeing her. But it appears to me that [K.K.] protects her mother and in a sense is parentified by that and has a true illusion of what mother is, what it means to be a mother.
"She knows that there was this person in her life, and she loves that mother. But considering the environment she lived in I couldn't define that in terms of the case law as a parental relationship. So when I weigh the quality of the parent-child relationship and looking at it over time, not with what's happening right now, I can't find the exception.
"With regards to [A.K.], the exception clearly doesn't apply, and the record speaks for itself in that regard."
DISCUSSION
I
Adoptability
Mother contends the section 366.26 assessment report failed to comply with section 366.21, subdivisions (i)(1)(B), (C), and (D). Specifically, she contends the assessment report allegedly failed to provide sufficient information concerning minors' mental and emotional status; C.A.'s criminal and child welfare history; C.A.'s ability to meet A.K.'s alleged behavioral issues; and contacts between mother and minors. We disagree.
These subdivisions provide in relevant part as follows: "(i)(1) Whenever a court orders that a hearing pursuant to Section 366.26 . . . shall be held, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include: . . . [¶] (B) A review of the amount of and nature of any contact between the child and his or her parents or legal guardians and other members of his or her extended family since the time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, 'extended family' for the purpose of this subparagraph shall include, but not be limited to, the child's siblings, grandparents, aunts, and uncles. [¶] (C) An evaluation of the child's medical, developmental, scholastic, mental, and emotional status. [¶] (D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, including the prospective tribal customary adoptive parent, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. . . ."
First, we note mother omitted any reference to Agency's supplemental January 24 and April 26, 2017 reports, the latter of which was admitted in its entirety except as described ante (in fn. 6), in claiming Agency's assessment of minors under subdivision (i) of section 366.21 was deficient. We further note that both reports were filed to update the court during the applicable reporting periods as a result of the continuances of the contested section 366.26 hearing, which continuances were necessitated in part because mother filed two section 388 petitions during this reporting period, as summarized ante (in fn. 5).
Second, we conclude mother forfeited her challenge to the substantive adequacy of the adoption assessment required under section 366.21, subdivision (i) by her failure to object on this basis to the totality of the multiple reports prepared in connection with the section 366.26 hearing, which included not only the January 24 and April 26 reports, but also Agency's 14-page July 21, 2016 section 366.26 report, and its 17-page December 7, 2016 addendum, summarized ante. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [noting the parent waived her contention that the assessment required by what was then subportion (4) (now (D)) of subdivision (i) of section 366.21 was inadequate based on the "familiar principle that failure to object to the admission of improper or inadequate evidence waives the right to raise the issue on appeal" and further noting if the "complaint on appeal be deemed not the admissibility, as such, of inadequate assessment reports, but substantive insufficien[cy] to establish requisite findings, this complaint, too, was waived by failure to raise it at the trial level [citation]"].)
Third, to the extent mother challenges the sufficiency of the evidence to support the court's finding minors were adoptable, we conclude the record is more than adequate to satisfy this finding. (See In re Brian P. (2002) 99 Cal.App.4th 616, 623 [noting "while a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child's adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court"].)
We review the juvenile court's order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that minors were likely to be adopted. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; § 366.26, subd. (c)(1).) " 'Clear and convincing' evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
"The issue of adoptability requires the court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P., supra, 99 Cal.App.4th at p. 624.)
Here, the record shows Agency's July 21, 2016 section 366 report included a lengthy section titled "Permanency Planning Assessment" in which Agency evaluated minors' "Medical," "Developmental," "Educational," "Mental and Emotional," and "Placement History" status as required under subdivision (i)(1)(C) of section 366.21. The July 21 report went into substantial detail with respect to these subject matters, despite mother's contention otherwise, including, by way of example only, providing the dates of minors' last medical and dental exams, where those exams were performed, and what was done during the exams; minors' development, including the fact K.K. was on track and A.K. had received services through the Development Screening and Enhancement Program for certain described behaviors; minors' education, including that K.K. was attending public school, performing at grade level except with respect to math, and was going into third grade; minors' mental and emotional well-being, which noted K.K. was then adjusting to her new placement with C.A., and, which noted A.K. was doing well in his placement with C.A., where he felt loved and safe; and minors' placement history.
The July 21 report also included a section titled "Analysis of the Likelihood of Adoption and Proposed Permanent Plan." In this section, Agency then noted C.A. wanted to assume legal guardianship over minors because she hoped that father someday could reunite; that C.A. later decided to pursue adoption of minors; that, as noted ante, K.K. was also generally adoptable, as there were then 15 families in San Diego who had been approved to adopt a child matching K.K.'s characteristics; that A.K. also was generally adoptable, as there were 40 families in San Diego who had been approved to adopt a child matching A.K.'s characteristics; and that there were 10 families in San Diego approved to adopt a sibling set matching minors' characteristics.
The July 21 report also included a section titled "Prospective Adoptive Parents/Legal Guardians" that provided a lengthy analysis of C.A. as required under subdivision (i)(1)(D) of section 366.21. This section of the report noted that C.A. was born in 1952 and was then 63 years old; that she completed a clearance through the Department of Justice, California Child Abuse index and the Federal Bureau of Investigation; that she also completed a child-abuse clearance as part of her initial relative home approval in July 2015; that she had no history of drug or alcohol abuse; that she had known minors' all their lives and had taken care of A.K. for most of his young life, including during an earlier dependency, and had also taken care of K.K. when parents were making poor lifestyle choices; and that she had the capacity and motivation to provide minors with a safe and loving home and was prepared to meet their needs on a "long-term, permanent basis."
The July 21 report also included a lengthy discussion concerning C.A.'s understanding of responsibilities—and legal and financial rights—with respect to minors, as also required under subdivision (i)(1)(D) of section 366.21. This report also summarized a conversation between an Agency social worker and K.K. concerning placement and prospective adoption, as well as a conversation the social worker attempted to have with A.K.
What's more, Agency's December 7 addendum included a section titled, "Analysis of the Likelihood of Adoption and Proposed Permanent Plan." This section noted C.A. then wished to adopt both K.K. and A.K. but that, if C.A. was unable to do so, there were seven families in San Diego approved to adopt a child matching K.K.'s characteristics; 28 families approved to adopt a child matching A.K.'s characteristics; and for the sibling set, there were seven families approved to adopt minors. Like the July 21 report, the December 7 addendum included a lengthy discussion concerning C.A., including her social history, criminal clearances, reasons to adopt, ability to meet minors' needs, and the duration and character of her relationship with minors. Also like the July 21 report, the December 7 addendum summarized a conversation during the reporting period between an Agency social worker and K.K. in which K.K. reported she was "happy to be adopted by her caregiver," and emphasized that C.A. was "prepared for anything."
The January 24, 2017 addendum included a section titled "Children's Statements concerning Placement and the Prospective Adoption/Legal Guardianship." This section summarized two conversations between an Agency social worker and K.K. during the reporting period regarding K.K.'s views on being adopted by C.A., and one conversation between the social worker and A.K. concerning the same subject matter. The April 26, 2017 addendum also included an assessment/evaluation section in which the Agency social worker opined minors were accepting of adoption and viewed mother as a "friendly visitor."
Moreover, as summarized ante, the January 24 and April 26 reports also included substantial detail regarding contacts between mother and minors, as required under subdivision (i)(1)(B) of section 366.21.
We conclude the July 21 selection and implementation report, when considered in light of the supplemental reports summarized ante, was in substantial compliance with the statutory requirements and provided the requisite information for the court to render a decision on adoptability. (See § 366.21, subd. (i); In re Valerie W. (2008) 162 Cal.App.4th 1, 11 [noting the "assessment report is 'a cornerstone of the evidentiary structure' upon which the court, the parents and the child are entitled to rely"]; In re John F. (1994) 27 Cal.App.4th 1365, 1378 [noting that "even if the assessment is incomplete in some respects, the court will look to the totality of the evidence," that any alleged "deficiencies . . . go to the weight of the evidence and may ultimately prove insignificant," and that "[s]ubstantial compliance with the assessment provisions has been deemed enough"].)
We further conclude the evidence in the record, as summarized ante, is convincing and amply supports the court's finding minors were adoptable and their adoption would take place within a reasonable time. (See In re Lukas B., supra, 79 Cal.App.4th at p. 1154; compare In re Brian P., supra, 99 Cal.App.4th at p. 624 [noting the juvenile court erred in finding child was likely to be adopted when the court "did not have the benefit of an adoption assessment report, which would have presented the kind of facts needed to support a finding of adoptability" including focusing on the child's "age, physical condition, and emotional state" and further noting a "bare statement" from a social services agency worker that the child's chances of adoption were " 'very good' . . . hardly amount[ed] to clear and convincing evidence"].)
II
Beneficial Parental Relationship
Mother next contends the juvenile court erred by failing to find the beneficial parental relationship existed and constituted an exception to minors' adoption as a permanent plan.
A. Guiding Principles
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several " 'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception, in this case, mother, has the burden of establishing an exception to termination of parental rights. (See In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(2); Evid. Code, § 500.)
Termination of parental rights may be detrimental to a child when the "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).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
To prove the beneficial parental relationship exception applies, a 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." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349; see In re K.P. (2012) 203 Cal.App.4th 614, 621.) "[T]he parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) A juvenile court's decision that a parent has not satisfied this burden may be based on either or both of two component determinations—whether a beneficial parental relationship exists and whether the existence of that relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).)
When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law. (In re I.W., supra, 180 Cal.App.4th at p. 1528.) When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion. (In re K.P., supra, 203 Cal.App.4th at pp. 621-622.) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
B. Analysis
We conclude mother cannot establish as a matter of law that she occupied a parental role in the life of either K.K. or A.K. for purposes of this exception to adoption. (See In re K.P., supra, 203 Cal.App.4th at pp. 621-622; In re I.W., supra, 180 Cal.App.4th at p. 1527.) In addition to the fact mother did not visit minors for about nine or ten months during dependency, the record shows that when the instant petitions were filed, mother was then living with A.K. in a truck; that mother and A.K. had been living as such for about two or three months; that, although living in a truck with A.K., mother reported to Agency she allegedly was "doing well," despite then recently testing positive for drugs; that mother then (and ostensibly throughout the dependency) blamed C.A. for mother's predicament because C.A. had called Agency's hotline out of concern for minors' well-being; that K.K. then was living with maternal grandmother, who could not be approved by Agency for minors' placement; that mother also was then engaging in erratic and violent behavior, as demonstrated by her confrontation with C.A. on June 17, 2015, when she punched C.A. in the face while C.A. was holding A.K.; that shortly after the petitions were filed, mother missed a prearranged visit with minors, appeared less than interested in cooperating with Agency in its quest to offer mother services, and was a "no-show" for her scheduled intake at a substance abuse program because her truck allegedly had broken down; that after missing the July 30, 2015 scheduled visit with minors, mother also did not visit with minors the following month; that despite being offered services and being involved in a previous dependency, mother in the current dependency failed to engage in any court-ordered services during the reunification period, including treatment for substance abuse, which treatment she indicated was allegedly unnecessary; that during the reunification period mother also remained homeless and out of contact with Agency and minors; and that even after mother entered detox in early August 2016 and began visits with minors in mid-October 2016, her once a week two-hour visits with minors remained supervised until the court terminated parental rights at the April 26 hearing.
What's more, the record shows mother admitted that she quit using methamphetamine three months into K.K.'s pregnancy and then relapsed when K.K. was about five months old; that she battled substance abuse thereafter and stated she hit "rock bottom" in October 2010—a statement she repeated in the current dependency proceeding—when K.K. was about two or three years old; that when A.K. was born, he tested positive for drugs; that as a result, minors were in dependency from about June 2012 to August 2013; that during this 14-month period, minors were out of the home for about eight months; and that mother then relapsed in 2015, when she tested positive for drugs and was homeless, necessitating yet another dependency that is the subject of this appeal.
On this record, it is clear mother loves her children and they love her. However, it is also clear mother has not established as a matter of law that the court erred in finding minors grew up in a home of "controlled chaos" with "minimal stability" while in her care, and in its finding that the beneficial parental relationship exception to adoption was inapplicable in this case. (See In re I.W., supra, 180 Cal.App.4th at p. 1527 [noting to establish the beneficial parental relationship exception applies, a 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"].)
We also conclude mother cannot show the court abused its discretion when it found the benefit to minors of preserving mother's parental rights was not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption. (See K.P., supra, 203 Cal.App.4th at pp. 621-622.) We note that mother had not cared for minors for almost two years when the court terminated parental rights; that nine-year-old K.K. testified she had not lived with mother for a "long time," perhaps since she was about five or six years old; that mother admitted she had never held steady employment; that she had been homeless and admitted using drugs "on and off" for about 11 years; that she had relapsed in her commendable, albeit ongoing, effort to achieve once and for all sobriety; and that minors while under her care were living in an environment of "controlled chaos," as noted by the court.
In contrast, the record shows minors were then in a stable placement with C.A., where A.K. had continuously lived for almost two years and where K.K. had continuously lived for almost a year. Thus, the court properly exercised its broad discretion when it found that mother also failed to show minors had a significant, positive, emotional attachment to her that outweighed the well-being each child would gain and was gaining in a permanent home with an adoptive parent. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.)
In light of our decision, we reject mother's contention that the court's termination of her parental rights implicated her substantive and/or procedural due process rights, or the rights of minors. (See e.g., In re Crystal J., supra, 12 Cal.App.4th 407, 413 [noting that due process "requirements in the context of child dependency litigation have . . . focused principally on the right to a hearing and the right to notice," that a "meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses" and that were when an "assessment report is prepared, is available to the parties in advance of the noticed hearing, and does address the principal questions at issue in the particular proceeding, errors or omissions in the report cannot be characterized in terms of denial of due process"].) --------
DISPOSITION
The order terminating parental rights is affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.