Opinion
E076180
03-24-2021
In re J.L. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.F., Defendant and Appellant.
Jack Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Pamela J. Walls, Special 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J272342 & J272343 & J272344 & J272345) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Jack Love, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Pamela J. Walls, Special Counsel for Plaintiff and Respondent.
The juvenile court terminated the parental rights of A.F. (Mother) to two of her daughters, A.L. and J.L. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) Mother contends the juvenile court erred by not applying the parent-child bond exception. (§ 366.26, subd. (c)(1)(B)(i).) We affirm the judgment.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A.L. was born in June 2015. J.L. was born in May 2016. Mother has two older daughters who were removed at the same time as A.L. and J.L. The older daughters are A.G., who was born in 2009, and J.G., who was born in 2011. The four children were detained in August 2017 because Mother's consumption of methamphetamine placed the children at risk of abuse or neglect. (§ 300, subd. (b).) At the time of the four children's detention, P.B. (Boyfriend) was Mother's boyfriend.
The juvenile court ordered legal guardianship for J.G. and A.G., so Mother is not asserting error as to the two older daughters.
A.L. and J.L. (collectively, younger daughters) were placed together in a foster home. A.G. and J.G. were placed together in a second foster home. At the detention hearing, the attorney for the four children requested a no-contact order between Boyfriend and the children due to Boyfriend's history of drug abuse. The juvenile court granted the no-contact order.
By March 2018, Mother completed individual counseling, made progress in substance abuse treatment, and tested negative for drugs. Mother was consistent in visiting the children twice per week for two hours, and the visits were appropriate and beneficial for the children. Also in March 2018, Mother gave birth to another daughter, A.B. When the Department assessed Mother's and Boyfriend's home for a risk to A.B., the Department found the home "had all provisions needed for the newborn as well as provisions for the older children to return home." The Department did not take custody of A.B. In April 2018, the juvenile court ordered that Mother have unsupervised visits with the four children.
An October 2018 status report reflected Mother visited with the children "at the McDonald's . . . every other weekend for four hours, plus one day during the week for two hours." The visits went well, and the siblings enjoyed visiting with each other during the visits. Mother had failed to appear for drug tests since June 22, 2018. Mother said she believed her case plan was complete so she no longer had to test. On October 16, 2018, the juvenile court terminated Mother's reunification services. For permanency planning, the juvenile court ordered "foster care with a permanent plan of adoption." The court authorized services for Mother under the permanent plan. The juvenile court ordered supervised visitation between Mother and the children.
Mother tested negative for drugs during the reporting period that ended in late January but was a no-show on January 24, 2019. In April 2019, Mother continued to test negative for drugs. A.G.—the oldest child—was "very responsible for her age and [her foster parents] still have to remind her that she is also a child and not responsible for the care of her younger siblings." When asked what was working well, A.G. said Mother was " 'starting to spend more time with us[] (instead of being on her phone all the time.)' " When asked what she wished for, A.G. said, " 'Find a better way to discipline us[] (instead of hitting and pinching, would prefer being put on a time out.)' "
The younger daughters were initially behind in their developmental milestones but were making progress in catching up. A.L. was referred to speech therapy. A.L. could understand English and Spanish, but exhibited delays in expressing herself verbally. J.L. received speech therapy. The younger daughters had been in two foster homes since their removal; they liked their current foster home and said they felt safe and comfortable there.
Mother and the four children continued having visits at a McDonald's. The visits were supervised by a social worker or the foster parents. The visits occurred every other Saturday for up to four hours and one day during the week for two hours. The children looked forward to their visits, especially to seeing their siblings. "[D]uring a visit on October 17, 2018, the children were observed taking turns talking on their mother's cell phone to an unknown person. The children could be heard saying, 'Hi daddy,' 'I love you daddy' and 'I miss you daddy.' When the [social worker] later addressed this with [Mother], and she was reminded about the 'no contact' order between the children and [Boyfriend], she used the excuse that she made the call so the children could see their baby sister and because the baby resides with [Boyfriend], he had to hold the phone. She denied that he made any contact with the children." During a visit on March 16, 2019, "one of the children was reported to feel uncomfortable and afraid of [Mother]."
In May 2019, Mother reported that she and her brother moved into an apartment. Mother continued to test negative for drugs. In June 2019, the juvenile court granted Mother unsupervised day visits with the children for up to eight hours. The court continued the no-contact order for Boyfriend.
Mother had unsupervised visits with the children (1) on June 18 for three hours; (2) on June 22 for eight hours; (3) on June 27 for seven hours; and (4) on July 1 for eight hours. On June 28, the younger daughters' foster parent told the social worker that the younger daughters "have returned from their unsupervised visits with their mother very hungry and appearing angry. When [the foster parent] asked the [younger daughters] what they ate (during the visit), they state 'pizza.' However, that evening at dinner [A.L.] 'stuffed herself, and ate very quickly.' The foster [parent] also reported that [J.L.] had 'wet herself,' and stated that the [younger daughters] have not exhibited those behaviors 'since they were first placed with her.' The foster [parent] reported that she had asked the [younger daughters] who else was at the home during their visit with the mother, and [the younger daughters] said the father of their baby sister was there. When the foster [parent] asked them again, they both stopped and said, 'No, he wasn't there.' "
On June 29, the social worker observed that A.G.—the oldest daughter "appear[ed] uncomfortable when asked about the recent unsupervised visitations with her mother. Although guarded in her responses, [A.G.] did acknowledge that their mother had taken the children to '[Boyfriend's] house to visit their baby sister.' [¶] On July 1, 2019, the [social worker] received a text message from [Boyfriend] at 7:04 p.m. stating, 'I seen them myself during a visit.' "
On July 3, the foster agency reported to the Department that [the younger daughters] "were exhibiting regressive behaviors as evidenced by [J.L.], who has been toilet trained since the age of 1.5 years old, wetting the bed at night and her pants during the day, and [A.L.] gorging herself with food, and then throwing it back up. Their foster [parent] has had to put [J.L.] back into pull-ups, and has to sit with [A.L.] while she eats to get her to slow down and reassure her that there is more food to eat and plenty to drink if she wants it. It was further reported that the oldest child, [A.G.], has become more emotional and appearing stress[ed], as evidenced by her crying and worrying that during visits their mother has not been attentive toward the younger siblings, resulting in [A.G.] being concerned for their safety."
On July 24, the juvenile court ordered that Mother's visits with the children be supervised. In August 2019, A.L.'s eating behaviors normalized and J.L. ceased wetting herself and her bed. On August 12, 2019, the juvenile court terminated the services that had been given to Mother under the permanent plan but allowed Mother to continue having supervised visits with the children.
The younger daughters referred to their foster parents as " 'mommy' and 'daddy.' And seek them out for comfort and to have their needs met." The younger daughters have a close bond with their foster family, and the foster parents were "[t]he most significant people" in the younger daughters' lives. The younger daughters were progressing in their development, but A.L. had some delays, such as not being able to follow a two-step direction. It remained difficult to understand A.L.'s speech, but her verbal skills were improving due to speech therapy and her foster parents working with her on a daily basis. A.L. requires "constant supervision which the foster family provides."
A February 2020 status report reflected that Mother visited with the four children under the supervision of the social worker or foster parents at a McDonald's. The visits occurred every other Saturday for two hours and one day during the week for two hours. The younger daughters continued to look forward to the visits, particularly to seeing their siblings. The visits mostly went well; however, during one visit in January 2020, A.L. fell in the bathroom and complained, " 'My mom did not care for me.' " The foster parent explained that A.L. had been in the bathroom with Mother and suffered a small bump on her head, which the foster parent treated with ice.
During a visit on February 15, 2020, A.L. was not being watched by Mother and A.L. " 'followed another family out the door,' and had to be brought back into the visitation area by her foster parent." Also in February 2020, during a visit, Mother told J.G., " 'I am your mother, don't listen to these people, speak your mind, don't listen to [foster father], and don't do what they tell you to do.' " Mother also told J.G. to tell the social worker that J.G. wanted to live with Mother, not with her foster parents. J.G. said Mother's statements caused J.G. to feel disappointed because J.G. knew Mother " 'is not supposed to talk about those things.' "
The juvenile court continued the hearings in the case due to the pandemic. During the pandemic, Mother visited with the children via FaceTime. During a FaceTime visit on June 3, 2020, Boyfriend was physically present with Mother during the visit, in violation of the no contact order between Boyfriend and the children.
In July 2020, J.L. was meeting her developmental milestones, and A.L. was meeting her developmental milestones with the exception of her speech issues. A.L. continued to show signs of past neglect, in that when the foster family ran out of milk, A.L. worried and often asked when they would have milk again. As a result, the foster mother began keeping an extra gallon of milk in the house. The younger daughters continued to show a strong attachment to their foster parents, and the foster parents wanted to adopt the younger daughters
J.G. and A.G.'s foster parents were willing to provide legal guardianship for J.G. and A.G. A.G. felt Mother wanted the children returned to Mother's custody for Mother's "own selfish reasons which is not fair [to the children] to be back to where they started with no hope for a better and bright future." A.G. explained that A.G. "used to take care of her siblings every day. . . . She took on the mother's role at a very young age and she cannot do that anymore."
At a hearing on November 12, 2020, Mother's attorney asserted the juvenile court should apply the parent-child bond exception so as to not terminate Mother's parental rights to the younger daughters. Mother's attorney asserted that Mother loves the younger daughters, and that the younger daughters would "suffer some type of detriment if parental rights are terminated." The attorney for the four children asserted the younger daughters were thriving in their foster home, so they would not suffer a detriment if Mother's parental rights were terminated. The Department asserted there was no evidence to support the parent-child bond exception.
The juvenile court found that Mother consistently visited the children. The court then examined the issue of whether Mother occupied a beneficial parental role in the younger daughters' lives. The court found the younger daughters had been out of Mother's care for two and one-half years and that most of Mother's visitation with the children had been supervised. The court found Mother did not occupy a beneficial parental role in the younger daughters' lives. The court found the younger daughters were comfortable in their foster home and that they look to the foster parents to fulfill their needs. The court concluded that "if there was some detriment it's far outweighed by permanency." The juvenile court terminated Mother's parental rights to the younger daughters.
DISCUSSION
Mother contends the juvenile court erred by not applying the parent-child bond exception in regard to the younger daughters. (§ 366.26, subd. (c)(1)(B)(i).)
If a juvenile court finds a dependent child is adoptable, then it will terminate parental rights unless one of the statutorily enumerated exceptions is applicable. (§ 366.26, subd. (c)(1).) One of the enumerated exceptions provides that parental rights shall not be terminated if "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
The parent arguing in favor of the parent-child exception bears the burden of proving the exception applies. (In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).) There are three evidentiary components to the exception: (1) regular visitation, (2) a beneficial parent-child relationship, and (3) detriment to the child that would result from termination of the parent-child relationship. (Ibid.; In re C.F. (2011) 193 Cal.App.4th 549, 555.)
The juvenile court found Mother established regular visitation, but that she failed to demonstrate a beneficial parent-child relationship and detriment to the younger daughters. Accordingly, we will focus on the beneficial parent-child relationship issue. Factors to consider include " ' " '[t]he 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.' " ' " (Breanna S., supra, 8 Cal.App.5th at p. 646.)
Because Mother bore the burden of proof on this evidentiary issue, and the juvenile court found she failed to meet her burden, we examine "whether the evidence compels a finding in favor of [Mother] on this issue as a matter of law." (Breanna S., supra, 8 Cal.App.5th at p. 647.) That means we examine the record to determine whether Mother'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." ' " (Meister v. Mensigner (2014) 230 Cal.App.4th 381, 395.)
A.L. was born in June 2015. J.L. was born in May 2016. The four children were removed from Mother's physical custody in August 2017. Thus, A.L. was two years old at the time of detention, and J.L. was one year old at the time of detention. The termination hearing occurred in November 2020, so the children were out of Mother's physical custody for three years, which means the younger daughters spent more time in foster care than in Mother's care.
As to the positive or negative effect of interaction, during the brief period in summer 2019 when Mother had unsupervised visits, after the visits, the younger daughters began "exhibiting regressive behaviors as evidenced by [J.L.], who has been toilet trained since the age of 1.5 years old, wetting the bed at night and her pants during the day, and [A.L.] gorging herself with food, and then throwing it back up. Their foster [parent] ha[d] had to put [J.L.] back into pull-ups, and ha[d] to sit with [A.L.] while she [ate] to get her to slow down and reassure her that there is more food to eat and plenty to drink if she wants it." The younger daughters' behavior normalized shortly after visits with Mother were once again supervised. Given the younger daughters' negative reactions to unsupervised visits with Mother, the evidence supports a finding of unsupervised interaction with Mother having a negative effect on the children.
In regard to the child's particular needs, A.L. was unable to follow a two-step direction and required "constant supervision." During a visit with Mother, A.L. followed another family out of the restaurant, which Mother failed to notice. A.L.'s foster mother had to retrieve A.L. and return her to the restaurant. Thus, during a two- hour visit, Mother was unable to provide A.L. with the constant supervision A.L. needed.
In her foster home, A.L. continued to show signs of past neglect, in that when the foster family ran out of milk, A.L. worried and often asked when they would have milk again. As a result, the foster mother began keeping an extra gallon of milk in the house because A.L. has heightened needs related to food security. When A.L. had unsupervised visits with Mother, A.L. returned to her foster home and gorged herself with food until she vomited. A.L.'s foster parent had to sit with A.L. while A.L. ate to slow her eating and reassure her there were sufficient food and beverages. Thus, Mother was unable to provide A.L. with a feeling of security related to food.
In regard to J.L., the record supports a finding that A.G. provided a significant amount of care for J.L. when J.L. was in Mother's custody. A.G. was "very responsible for her age and [her foster parents had] to remind her that she is also a child and not responsible for the care of her younger siblings." A.G. explained that A.G. "used to take care of her siblings every day. . . . She took on the mother's role at a very young age and she cannot do that anymore." When the four children had unsupervised visits with Mother during the summer of 2019, A.G. was stressed and cried because she worried about the younger daughters' safety during the visits due to Mother's lack of attentiveness. The foregoing evidence supports a finding that Mother was not able to meet J.L.'s needs for parental care.
In sum, the record supports the findings that (1) the younger daughters spent more time in foster care than in Mother's custody; (2) unsupervised interaction with Mother had a negative effect on the younger daughters; and (3) Mother was unable to meet the younger daughters' needs. Accordingly, the evidence does not compel a finding that Mother had a beneficial parent-child relationship with the younger daughters.
Mother contends the juvenile court erred by saying, "I can't find that mother currently stands in a parental role to the children, as their day-to-day needs are being met by their current caregivers who have had the children for two-and-a-half years which is a substantial portion of their life, and, frankly, a majority of [J.L.'s] life." Mother asserts that if she had to prove she had daily contact with the younger daughters then "the rule would swallow the exception."
The juvenile court's comment about day-to-day contact was likely derived from In re Autumn H. (1994) 27 Cal.App.4th 567 and its progeny. In Autumn H., the appellate court wrote, "The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences." (Id. at p. 575.)
In In re Casey D. (1999) 70 Cal.App.4th 38, the dependent child's father asserted "the Autumn H. standard 'renders the exception meaningless.' He point[ed] out that by the time of the section 366.26 hearings, after reunification services have been terminated, 'by the very nature of the proceedings the parents do not have day-to-day interaction, companionship and shared experiences with the child' since at that point the child is being raised by foster parents. [The father] assert[ed], 'It is hard to fathom that the Legislature intended its exception to termination of parental rights to be interpreted as requiring a parent/child relationship based on day-to-day care and interaction that simply does not exist at the point in time when the court is considering termination of parental rights.' " (Id. at pp. 50-51.)
The appellate court rejected Father's argument. The court explained that Autumn H. did not mandate daily contact. Rather, Autumn H. described a characteristic of the parent-child relationship that would help to meet the exception. The appellate court wrote, "Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship." The court explained that the exception could be met "in the case of an older child, despite a lack of day-to-day contact and interaction," but that the exception would be difficult to meet "where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental [relationship], rather than [a] caretaker or friendly visitor relationship with the child." (In re Casey D., supra, 70 Cal.App.4th at p. 51.)
In the instant case, the juvenile court's comment that the younger daughters' "day-to-day needs are being met by their current caregivers" seems to be taken directly from the Autumn H. line of cases. Thus, the juvenile court's comment can be understood as the court remarking on a characteristic aspect of the parent-child relationship that was missing in this case, and which caused Mother to have more of a friendly visitor role.
Next, Mother highlights the positive aspects of her visits with the children. Mother notes that the visits typically went well, and the children largely enjoyed the visits. Mother's argument indicates there was a pleasant relationship between Mother and the younger daughters, but it fails to explain how the relationship was a parent-child relationship, and, more importantly, how the evidence compelled a finding in Mother's favor. (See Breanna S., supra, 8 Cal.App.5th at p. 647 ["whether the evidence compels a finding in favor of the parent on this issue as a matter of law"].) Accordingly, we find Mother's argument to be unpersuasive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.