Opinion
D076219
02-19-2020
In re I.H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.L. et al., Defendants and Appellants.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant G.L. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J513974C) APPEALS from an order of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant G.L. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.H. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Emily Harlan, Deputy County Counsel, for Plaintiff and Respondent.
G.L. (Mother) and J.H. (Father) appeal an order terminating their parental rights. Mother contends that the juvenile court erred by terminating her parental rights after finding that the beneficial parent-child relationship exception to adoption did not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) Father joins in that argument and also contends the juvenile court erred in denying a request for a continuance of the selection and implementation hearing to allow for evaluation of an out-of-state relative placement. We conclude that the juvenile court did not err in making these rulings and therefore affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
In September 2017, the San Diego County Health and Human Services Agency (the Agency) petitioned the juvenile court under section 300, subdivision (b), on behalf of seven-year-old I.H. The Agency alleged that Mother and Father were unable to provide regular care for I.H. due to their current use of methamphetamine and long history of substance abuse. The petition further alleged that Mother and Father had a "volatile" relationship, including at least one recent violent altercation while I.H. was present.
As discussed in the detention report, I.H.'s parents had a long history of substance abuse, criminal charges, and housing instability. At the time of I.H.'s detention, Mother admitted to using methamphetamine multiple times a day, being homeless, and being unable to feed I.H. Likewise, Father admitted he could not provide for I.H. I.H. had been diagnosed with autism, had minimal verbal communication ability, and, due to his associated behavioral issues, needed constant supervision to avoid harming himself.
The juvenile court found that the Agency had made an adequate showing that I.H. was a person described by section 300, subdivision (b), and ordered him detained in out-of-home care.
In its jurisdiction report, the Agency noted that after the detention hearing, Mother indicated she was interested in regaining custody of I.H., but also admitted to her continued use of methamphetamine and heroin. Despite repeated efforts, the Agency was unable to contact Father. Mother indicated that if she failed to reunify with I.H., she would prefer that he reside with a relative. Of the potential relative placements identified by Mother, only a maternal great-aunt expressed interest in having I.H. placed in her care. Because the great-aunt resided in Illinois, the Agency indicated it would start the Interstate Compact on the Placement of Children (ICPC) process to evaluate the great-aunt. Before the next hearing, I.H. was placed with a foster family.
The parties do not discuss the results of the evaluation or potential placement with the great-aunt. Our own review of the record does not disclose any reason to suspect any error with regard to placement with the great-aunt.
In an addendum report, the Agency noted it finally succeeded in finding Father, who was now living in a transitional housing program. The Agency also noted that Mother had failed to attend any of her scheduled visits with I.H.
At I.H.'s jurisdiction and disposition hearing in February 2018, the court sustained the allegations of the petition under section 300, subdivision (b). The court placed I.H. in a foster home and ordered the Agency to continue its evaluation of potential relative placement. The court ordered reunification services for the parents.
In advance of the six-month review hearing, the Agency reported that both Mother and Father were apparently homeless, continuing to struggle with their addiction, and both admitted they could not currently care for I.H. The parents had not made any progress in their case plans and were not consistently visiting with I.H. Mother had newly identified a maternal uncle living in Michigan for possible placement, who the Agency was in the process of evaluating. The Agency recommended that reunification services be continued for another six months. The court agreed and ordered that I.H. remain in his current placement while his parents received another six months of reunification services.
In advance of the 12-month review hearing, the Agency recommended that the court terminate the parents' reunification services and set a selection and implementation hearing under section 366.26. The Agency reported that I.H. was continuing to improve and was doing well with his foster family, who indicated they were interested in adopting I.H. Meanwhile, both parents continued to have unstable housing and maintained only sporadic contact with the Agency. Mother's visits with I.H. remained inconsistent and both parents indicated they were still unable to care for I.H. The Agency reported that the maternal uncle living in Michigan was determined to be inappropriate for placement.
At a contested hearing, the social worker testified that Mother had recently become "quite consistent" in her visits with I.H. and that the visits were "good quality" with "good interaction" between Mother and I.H. However, the social worker declined to offer an opinion regarding whether I.H. looked forward to the visits, explaining that "it's hard to say because of his autism." Following the social worker's testimony and based on the court's review of the documentary evidence, the court terminated reunification services and set a selection and implementation hearing.
Mother filed a notice of intent to file a writ petition challenging the court's order, but her attorney later filed a letter with this court indicating that there were no viable issues for review. Accordingly, this court dismissed the writ proceeding.
In its initial assessment report, the Agency recommended that the court terminate parental rights and find I.H. to be adoptable. In the report, the social worker stated that I.H. had become attached to his current caregivers, who he referred to as "mom" and "dad." I.H.'s teacher noted that his behavior worsened on days after his visits with his birth family.
The social worker noted that recently, Mother had participated in numerous supervised visits with I.H. However, the social worker opined that the relationship between I.H. and Mother "does not rise to the level of a beneficial parent-child relationship." The social worker noted that although Mother and I.H. were affectionate during the visits, I.H. was generally quiet, referred to Mother by her first name, and did not show signs of distress upon leaving.
The Agency recommended that the juvenile court select a permanent plan of adoption. I.H.'s current caregivers stated they were "definitely" interested in adopting I.H. The Agency noted that I.H. was also generally adoptable with 30 possible adoptive families identified by the Agency in San Diego County that had expressed an interest in adopting a child with I.H.'s characteristics.
In late March 2019, Mother identified for the first time a relative in Louisiana that was interested in caring for I.H. The Agency quickly initiated an ICPC evaluation.
In addendum reports, the Agency noted that Mother continued her weekly visits with I.H. and the visits were generally appropriate and consistent with the prior visits. In a final addendum report, the Agency confirmed its prior recommendations. The Agency noted that the ICPC evaluation for the maternal uncle in Louisiana had stalled because "an issue arose" that had to be addressed and would "require further assessment" by the local agency.
At the section 366.26 hearing, Father requested a short continuance to allow for completion of the ICPC evaluation of the maternal uncle in Louisiana. Mother joined in that request. Father's counsel explained his concern that if his parental rights were terminated, he would have "no voice, no input" at a future hearing to consider the relative placement. Father's counsel further claimed the Agency and minor's counsel would not ask the court to place I.H. with his relative because they supported I.H.'s current placement. The court denied the request for a continuance, finding no good cause to further delay the proceedings.
Turning to the selection and implementation issue, the court acknowledged that I.H. "knows his mom" and "certainly may also understand and have feelings for his mom, who was his mother figure for the first seven years of his life." However, the court found that the relationship "is not one that is a mom who stands to parent and is accepted as a parent in caring, and is able to care for [I.H.] as a parent." The court proceeded to find that I.H. was adoptable and that none of the exceptions to adoption under section 366.26, subdivision (c)(1) applied. The court therefore terminated parental rights and selected adoption as I.H.'s permanent plan. Mother and Father appealed.
DISCUSSION
I
Mother contends that the court erred in selecting adoption as the permanent plan for I.H. following the selection and implementation hearing held pursuant to section 366.26. " 'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.' [Citation.] It is designed to protect children's 'compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] 'The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.' " (In re Celine R. (2003) 31 Cal.4th 45, 52-53 (Celine R.).)
Father joins in this argument, not on the basis that the beneficial parent-child relationship exception applies to his relationship with I.H., but in regard to I.H.'s relationship with Mother.
"Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' [Citation.] The circumstance that the court has terminated reunification services provides 'a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more' of specified circumstances. [Citation.] The Legislature has thus determined that, where possible, adoption is the first choice. 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' " (Celine R., supra, 31 Cal.4th at p. 53.)
"[I]f the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53.)
Mother does not dispute the court's finding that I.H. is likely to be adopted, but contends that the beneficial parent-child relationship exception applies such that her parental rights should not have been terminated and the court should have selected an alternative permanent plan. The beneficial parent-child relationship exception applies where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The parent bears the burden in the juvenile court of showing the exception applies. (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.).)
The parties agree the trial court did not make an express finding regarding whether Mother maintained regular visitation and contact with I.H. in the months preceding the section 366.26 hearing and disagree on this factual point. However, even assuming Mother's visits were sufficiently consistent, we see no error by the trial court in finding she failed to show the existence of a beneficial parent-child relationship.
"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
Mother suggests that most appellate courts have applied the substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We believe the hybrid standard of review is correct for the reasons stated in J.C., supra, 226 Cal.App.4th at pages 530-531, and we need not add our voice to the discussion surrounding the proper standard in this instance. This issue is currently pending in the California Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. Our conclusion in this case would be the same under any of these standards. As Mother concedes, the practical differences between them in this context are not significant. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
"To overcome the preference for adoption and avoid termination of the natural parent's rights, the 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. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.))
"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) "A friendly relationship . . . 'is simply not enough to outweigh the sense of security and belonging an adoptive home would provide.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) "While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination." (Angel B., supra, 97 Cal.App.4th at p. 467.)
The trial court found that Mother did not have a beneficial parent-child relationship with I.H. that outweighed the benefits of adoption. Mother contends otherwise, pointing to the evidence demonstrating such a relationship. The role of this court on appeal, however, is not to second-guess the juvenile court's decision or to reweigh the evidence. Instead, we consider whether substantial evidence supports the trial court's ruling that no sufficient relationship exists. We conclude the evidence supports that finding.
Neither the Agency nor the trial court disputed that Mother and I.H. had a generally loving relationship and enjoyed each other's company. This, however, is not enough to satisfy the beneficial parent-child relationship exception. (Autumn H., supra, 27 Cal.App.4th at p. 575.) While there was some measure of benefit to I.H. arising from his relationship with Mother, the evidence supports the trial court's finding that it was not sufficiently significant. The court-appointed special advocate (CASA) reported that Mother's visits were "hard" on I.H., leading to him becoming "defiant, angry, and visibly upset." During visits with Mother, I.H. often referred to her by her first name. He frequently declined additional hugs and kisses from Mother and resisted "cuddling." When the visits ended, I.H. generally did not resist or show signs of distress about leaving Mother. On one occasion when Mother did not arrive for a scheduled visit, I.H. showed no signs of distress and signaled to the social worker that he did not want to continue to wait.
Although some of I.H.'s lack of emotion toward Mother could reasonably be attributed to his autism diagnosis, the evidence in this case is markedly different from the evidence in a case Mother relies upon, In re Scott B. (2010) 188 Cal.App.4th 452 (Scott B.), which also considered the relationship between a mother and her son with autism. In Scott B., there was significant evidence of the strong relationship between the mother and her son, including the son's repeated testimony that he wanted to stay with his mother and his threats to run away if he could no longer see her. (Id. at pp. 465-466.) As the appellate court explained, the mother's involvement in the minor's life provided stability. (Id. at p. 472.) No such evidence is present in this case.
Moreover, even assuming Mother established the existence of a positive parent-child relationship, she has not shown that the juvenile court abused its discretion by finding that the benefits of adoption outweighed the benefits of maintaining that relationship. Rather than suffering when he was separated from Mother, I.H. was thriving in his placement with a foster family. His recent academic and behavioral progress since being placed with his foster family in a stable environment was undermined by his visits with Mother and Father. Thus, the juvenile court could have reasonably found that the bond between Mother and I.H. was not of such a quality that maintaining that relationship would outweigh the benefits of adoption. Mother has not shown that the court abused its discretion by finding that the beneficial parent-child relationship exception did not apply.
II
Father contends on appeal that the trial court erred in denying his request for a continuance of the selection and implementation hearing to allow the Agency to complete the ICPC evaluation for an out-of-state relative placement. As Father acknowledges, we review the trial court's ruling for abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605.)
Mother joins in this argument on appeal.
As a preliminary matter, the Agency contends the Father forfeited this argument by failing to argue the purported good cause for the continuance. We disagree, finding the issue sufficiently raised by Father's counsel at the selection and implementation hearing. Thus, we will consider the merits of Father's contention.
It is undisputed that the maternal uncle in Louisiana was not identified until after the court terminated reunification services and set the matter for a selection and implementation hearing. Parents do not contend the Agency or trial court erred in any matter in evaluating relatives for placement or in placing I.H. with his foster parents such that I.H.'s current placement must be reevaluated. (See, e.g., In re Isabella G. (2016) 246 Cal.App.4th 708, 723-724.) The issue on appeal, therefore, is simply whether the trial court should have continued the section 366.26 hearing to allow for completion of the ICPC evaluation for I.H.'s Louisiana uncle.
Father fails to demonstrate any compelling reason regarding why he was prejudiced by the denial of his request for a continuance. As he acknowledges, the section 366.26 hearing focuses on selecting and implementing a permanent plan for the child. (See, e.g., Celine R., supra, 31 Cal.4th at pp. 52-53.) The court must select the statutory preference for adoption unless one of the specified statutory exceptions applies. (Ibid.)
On appeal, Father contends that if the relative placement evaluation was completed before the section 366.26 hearing, the court could select a permanent plan "which could preserve the parent-child relationship." Although not expressly identified by Father, the only possible exception to a permanent plan of adoption that could apply in such a circumstance is found in section 366.26, subdivision (c)(1)(A), which applies when the child is living with a relative "who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child."
However, even assuming the section 366.26 hearing was continued and the Louisiana uncle was found to be generally appropriate for placement, Father offers nothing but speculation to support the possibility that this exception could apply. Because the relative was not identified until well after the dispositional hearing and after reunification services had been terminated, the relative placement preference would apply only upon the need for a "new placement." (In re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 794-795.) Father presented no evidence that the need for a new placement before his parental rights were terminated was anything other than a remote possibility. Instead, all evidence before the trial court suggested that I.H.'s current caregivers fully intended to adopt I.H. and were appropriate for such a placement. So long as adoption is available as a permanent plan for a minor, placement with a relative not willing to adopt is not favored. (In re Maria Q. (2018) 28 Cal.App.5th 577, 596-599.)
Moreover, even assuming that a new placement became necessary, the exception to terminating of parental rights under section 366.26, subdivision (c)(1)(A) applies only if the relatives with whom the child is placed are unable or unwilling to adopt and removal from that relative would be detrimental to the emotional well-being of the child. Again, there was no evidence regarding the relatives' willingness to adopt of any effect on I.H.'s emotional well-being caused by his theoretical removal from a relative he did not know. We will not speculate otherwise on appeal. (See, e.g., In re Cody R. (2018) 30 Cal.App.5th 381, 390; In re Isaiah S. (2016) 5 Cal.App.5th 428, 436.) Thus, Father offered no evidence to support his assertion that if the hearing was continued to allow for the complete evaluation of the Louisiana relative, the outcome of the section 366.26 hearing would have been any different with regard to Father's rights.
Father's speculation regarding a remote possibility, unsupported by any actual evidence, that if the hearing was continued to allow for evaluation of the relatives for placement there was a chance that his parental rights would not be terminated is insufficient to establish good cause for a continuance. (§ 352, subd. (a).) Such continuances are discouraged and I.H.'s need for prompt resolution of his custody status and the need to provide him with a stable environment outweigh any speculative claim by Father. (See, e.g., In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) Accordingly, Father fails to demonstrate any abuse of discretion by the trial court in denying his request for a continuance.
DISPOSITION
The order is affirmed.
BENKE, Acting P.J. WE CONCUR: IRION, J. DATO, J.