Opinion
F079529
03-24-2020
In re A.T. et al., Persons Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. B.T. et al., Defendants and Appellants.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, B.T. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant, Y.C. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Stanislaus Super. Ct. Nos. 518128 & 518129)
OPINION
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant, B.T. Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant, Y.C. Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Y.C., mother, appeals the juvenile court's summary denial of her Welfare and Institutions Code section 388 petition and termination of her parental rights over her children, A.T, and A.D.T. Mother contends the juvenile court erred by not holding a hearing on her section 388 petition and by declining to apply the beneficial-parent child relationship exception to terminating parental rights. B.T., father, joins in mother's arguments. We find no error and affirm.
All further undesignated statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On October 24, 2017, the Stanislaus County Community Services Agency (Agency) received a referral stating that mother had taken then-10-month-old A.D.T. to a clinic for an injury to his upper right arm. Mother said A.D.T. received the injury by "falling on his crib" on October 19, 2017. The x-rays revealed that A.D.T. had multiple fractures all over his body, including to his arm, leg, and rib cage. The injuries were in various stages of healing, and the fracture to his arm actually occurred about a week before when mother said it had occurred. A.D.T. also had a possible brain injury. Abuse was suspected.
Mother told a social worker investigating the referral that she is the primary caretaker of the children and does not leave the children with anyone else. Mother initially reported father had minimal contact with the children and no contact outside her presence. Mother then retracted her statement and said that when A.D.T. is crying or tired, father takes him into the bedroom while mother stays in the living room. Mother hears crying from the bedroom, but the crying stops. Mother said that father has never hit the children and then retracted her statement and said father bit A.D.T. for no apparent reason. Mother said this was an accident due to a bad dream father had. Mother also reported that father had bit her on the shoulder in the past due to a nightmare. Mother denied that she or father used drugs.
Mother denied domestic violence, but the social worker reported that father was previously arrested on a domestic violence warrant where mother was the victim. The social worker noted mother appeared to have bruises on her body. Mother told the social worker father had to complete anger management courses for another domestic violence incident but repeatedly denied domestic violence, stating that all couples fight, and that father did not intend to hurt her.
When the social worker spoke with father, father initially reported he was at work when A.D.T. got injured and does not know how it happened. Father denied hitting the children. When father was shown x-rays of A.D.T.'s injuries, he stated, " 'I can't believe it got this bad.' " Father then admitted to ongoing abuse of A.D.T., and that the injury to A.D.T.'s right arm was caused by father "yanking him off his crib" while A.D.T. cried. Father said A.D.T.'s ribs were broken because father squeezed him forcibly. Father denied domestic violence. Father admitted to using alcohol and methamphetamines when he got frustrated with the children and that after the death of his grandmother his usage increased.
A.T. and A.D.T. were taken into protective custody.
A.D.T. had to have "percutaneous pinning surgery" to pin his right arm and back together. A.D.T. had rib fractures in the front and the back of his body, which was typical of forcible squeezing of the chest. While conducting surgery on A.D.T., the doctors found an abrasion to his right thigh that mother said was caused by father biting A.D.T. A.D.T. had what appeared to be old bite marks on his leg. A full body x-ray revealed that A.D.T. had a previous injury to the shoulder that would likely require another surgery. The social worker concluded, "It appears that [A.D.T.] has been getting hurt for a long period of time."
The agency filed a petition on behalf of A.T. and A.D.T. alleging the children came within the jurisdiction of the juvenile court.
At the detention hearing on October 27, 2017, the trial court ordered that the children be detained from the parents. The children were placed together in a foster home.
On December 4, 2017, a first amended petition was filed, alleging the children came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (e) (severe physical abuse of a child under five years of age).
In the jurisdiction/disposition report, filed on December 5, 2017, the social worker recommended that family reunification services be denied to mother and father pursuant to the bypass provisions of section 361.5, subdivisions (b)(5) and (b)(6).
Section 361.5 subdivision (b) provides that family reunification services need not be provided when the court finds by clear and convincing evidence [t]hat the child was brought within the jurisdiction of the court under [section 300, subdivision (e)] because of the conduct of that parent or guardian" (§ 361.5, subd. (b)(5)) or "[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian ... and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian" (§ 361.5, subd. (b)(6)(A)).
On December 18, 2017, the social worker met with mother. Mother explained to the social worker that father had been controlling throughout their relationship and she was not allowed to work. Mother admitted that father hit her during one incident. Mother reported father was a good father to A.T. but did not have much of a bond to A.D.T. Mother said she never saw bruises on A.D.T. and did not think father would hurt him.
Mother began engaging in voluntary services. As of January 10, 2018, she had completed six out of 10 parenting classes at Sierra Vista. Mother also got a driver's license and a car, which she said she would not have been able to do while in a relationship with father. Mother reported she had learned from the parenting classes and does not want to get back into a relationship with father.
Father also engaged with services, including classes on topics such as relapse prevention, job skills, anger management, parenting groups, thinking change, as well as 12-step support groups. Father graduated from substance abuse classes and transitioned into sober living.
On February 2, 2018, the agency filed an addendum report changing its recommendation as to mother. The agency now recommended mother be granted reunification services pursuant to section 361.5, subdivisions (c)(2) and (c)(3). The agency opined it was in the children's best interest to offer the mother reunification services as the children are closely and positively attached to her and that services were likely to prevent re-abuse and continued neglect.
Section 361.5, subdivision (c)(2) provides in pertinent part that the court shall not order reunification for a parent or guardian described in subdivision (b)(6) unless it finds by clear and convincing evidence that reunification is in the best interest of the child. Section 361.5, subdivision (c)(3) further provides in pertinent part that the court shall not order reunification in any situation described by section 361.5, subdivision (b)(5) unless it finds based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.
The social worker noted that mother had actively taken initiative to participate in services to address the issues that brought the children to the attention of the agency. The social worker thought it possible that mother did not know father was abusing A.D.T. The social worker also noted that mother has reported she will no longer be in a relationship with father and had benefitted from services. The social worker also noted the children had a strong bond with mother.
At the jurisdictional/dispositional hearing on February 8, 2018, the juvenile court stated it "ha[d] concerns about the change in the recommendation, but the court will reluctantly agree to adopt the recommendation by the agency to now provide services to the mother." The juvenile court found the first amended petition, which was further amended on the date of the hearing to be true. The juvenile court found by a preponderance of the evidence that the children were persons described by section 300, subdivisions (a), (b)(1), and (e) and adjudged the children dependents of the court. The juvenile court found the provisions of section 361.5, subdivision (b)(5) and (6) applied to both parents. The juvenile court, however, "very reluctantly offere[ed] reunification services to the mother," finding it would be in the best interests of the children to provide services to mother and that such services would likely prevent reabuse or neglect pursuant to section 361.5, subdivisions (c)(2) and (c)(3). Mother was ordered to participate in individual counseling focused on acknowledging the abuse A.D.T. had endured, identifying signs of abuse, and learning how not to engage in abusive relationships. Mother was also ordered to complete a parenting program. Among mother's case plan objectives were: "You will not allow any contact between the abuser and your children" and "[t]ake appropriate action to avoid being a victim of further domestic violence." The court denied father reunification services but ordered him to have a minimum of one visit per month in light of the possibility that mother was able to successfully reunify. The court ordered that the visits be "closely supervised," meaning that the supervisor was to be in the same room where the visit was taking place.
Mother continued to engage in services and visit with the children. Mother began opening up with her counselor about the details of the domestic violence she experienced in her relationship with father but still had doubts about whether he hurt A.D.T. Mother visited approximately once per week from December 2017 through May 2018 and twice a week from May 2018 through the six-month review period. It was noted that the children appeared to enjoy spending time with mother. Mother was noted to be "present and engaged during her visits," and that she "stimulates the children by engaging in age appropriate activities and attending to their needs." Father also visited, and the visits went well.
At the six-month review hearing on July 26, 2018, the agency's recommendation was to continue services for mother. The agency expressed concerns that mother had a need for further individual counseling because mother "still shows some uncertainty as to whether or not [father] hurt [A.D.T.]." The agency also asked the court for discretion for "trial visits." The agency was not yet ready to exercise discretion because mother had not acknowledged or seemed to understand that father abused the child. The court found that mother's progress was good and continued her reunification services.
On October 3, 2018, the agency made an oral section 388 petition to ask for the social worker to be granted discretion to allow overnight visits with mother pending the next hearing. No parties objected, and the juvenile court granted the request, noting it seemed appropriate and "[m]other is doing a good job."
Mother began having home visits with the children in August 2018. Mother's visits went well, and the children appeared to look forward to spending time with mother. After the first home visit on August 23, 2018, however, A.T. mentioned to the care provider and the social worker he had seen "daddy." The social worker could not ascertain whether A.T. saw father during his visit with mother or his visit with father which were only a few days apart. On September 7, 2018, A.T. showed the social worker two dinosaurs he stated he got from "daddy." The social worker asked the care provider where A.T. got the dinosaurs, and the social worker said A.T. had them after his visit and consistently reported he went to daddy's house and got the dinosaurs from daddy. The social worker made several unannounced visits to mother's home and did not see any indication that father had any contact with mother. The social worker shared this information with mother's counselor, and on September 11, 2018, the counselor stated mother had "maintained she has had no contact with father since CPS involvement." The social worker expressed her concern with mother, but mother said she would never jeopardize reunifying with her children, and that she feels liberated to be out of the violent relationship with father. Mother's home visits began with three days a week from 11:30 a.m. to 3:30 p.m., then progressed to Monday through Saturday from 9:00 a.m. to 3:30 p.m.
On November 3, 2018, during one of mother's visits with the children, A.D.T. fell, which resulted in a moderate size hematoma to his forehead. Mother took A.D.T. to the emergency room but left before a CT scan could be completed. The social worker asked the care provider to schedule a follow up visit. The care provider and mother attended the follow up visit and no concerns were reported.
The agency filed a 12-month status review report dated November 28, 2018, wherein the recommendation was that the children remain dependents of the court, and services be continued as to mother. The report indicated the children were doing well in their placement and appeared healthy and well cared for and bonded to the care provider. Mother had completed her parenting services. The report indicated mother had been "adamant" she had had no contact with father.
On January 4, 2019, the agency filed an addendum report changing its recommendation as to mother. The new recommendation was that mother's services be terminated and a section 366.26 hearing be set. On the date the report was filed, the social worker received a police report dated November 1, 2018, which indicated that father was arrested for driving under the influence with mother as a passenger in the vehicle. The vehicle was released to mother, and father reported to the arresting officer that he had been drinking with his "ex-girlfriend," mother. Father listed mother's address as his home address. When confronted with the information from the police report, mother indicated she was "just giving [father] a ride because his relatives had called her and requested that she pick him up from his sister's house." Mother said she was aware she was not supposed to have contact with father, but "she feels bad for him because he is ill and needs help." Mother admitted to transferring money to father during the dependency proceedings during a period which he was in custody. Mother also admitted to allowing A.T. to have telephone contact with father. Mother explained that she "speaks to [father] on speaker phone and that [A.T.] heard his voice and wanted to say hello.
The social worker concluded that though mother has completed her services, she has not met her case plan objectives, which comprised of, "Pay attention to and monitor your children's health, safety, and well-being[.] Show that you will not permit others to physically abuse your children, you will not allow any contact between the abuser and your children, and take appropriate action to avoid being a victim of further domestic violence."
At the contested 12-month review hearing, on February 21, 2019, mother's counsel made an offer of proof that mother would testify she knows she made a mistake and had a lapse in judgment regarding the safety of her children in having contact with father. She does not want to minimize or justify her conduct and is accepting full responsibility for her actions. Mother offered documentation that she had enrolled in voluntary counseling and parenting classes. Mother also offered an "apology letter," where she stated she changed her number and would get a restraining order against father and stay away from his family. Father offered a letter from the district attorney's office that stated he had been sentenced to 365 days in jail, and that the court made a stay-away order as to A.D.T. Father's counsel made an offer of proof that father would testify that when he got pulled over the night of his arrest, he told the officer he was drinking with his mother, not the "mother of his children." He gave the police mother's address as a "mailing address," but he does not live there.
Counsel for the agency argued that mother had engaged in manipulative behavior by not telling anyone about the incident. Counsel for the children pointed out that mother continued to be adamant she did not have contact with father after the incident in the vehicle until she was confronted with the police report on the November 1, 2018 incident. Counsel also pointed out that though A.T.'s comments that he saw "daddy" did not rise to a serious level of concern for the social worker at the time, looking back, it appears mother was allowing the children to have contact with father. Counsel also pointed out that on November 3, 2018, mother left the hospital before a CT scan could be completed.
The juvenile court found that mother had not made substantive progress in resolving the issues that caused the children to be removed from her care nor demonstrated the ability and capacity to complete the objectives of the case plan and to meet the children's needs as to emotional and physical safety. The court stated it found the fact that mother never mentioned her contact with father "extremely concerning." The juvenile court told mother that it believed mother "really [has] learned nothing in the 16 months [she has] been provided with services. The juvenile court terminated mother's services and found that even if services were to be extended, there was no evidence of a substantial likelihood that the children could be returned to mother's care. The juvenile court set the matter for a section 366.26 hearing, with a permanent plan of adoption. Visitation with mother was decreased to once monthly.
The children's Court Appointed Special Advocate (CASA) filed a report dated June 11, 2018. The CASA noted that after the 12-month status review hearing, the children went from visiting with mother six days a week from 9:00 am to 3:30 pm to being in their foster home full time. The CASA noted the children's transition back to the foster home went smoothly and noted that when the foster father returns home, A.D.T. runs to him and does not want to be away from him. The CASA noted that in April 2017, there was a meeting where A.T. was excited to see his mother but was fine when the meeting was over and readily left to go back to the foster home.
The section 366.26 report indicated that the children's care providers, with whom they had lived since December 22, 2017, wished to adopt the children. The recommended permanent plan was adoption with their care providers and termination of parental rights. The social worker believed that mother had had contact with father at the time of his DUI arrest and further believed that mother had had ongoing contact with father throughout the life of the case. The social worker explained that mother's "dishonesty makes it nearly impossible to assess for the safety of the children. Additionally, [mother's] actions speak to her inability to keep herself safe from a violent relationship let alone provide safety and protection for [the children]."
On June 18, 2019, mother filed a section 388 petition requesting the juvenile court reinstate reunification services. Mother alleged she had obtained a domestic violence restraining order on May 21, 2019. She also alleged she had received domestic violence services weekly since April 8, 2019, and had attended additional counseling sessions twice a month during March, April, and May. Mother attached documentation supporting the allegations in her petition. Mother alleged the request would be in the children's best interest:
"[T]o continue their lives with the parent who has raised and loves them. [The children] were on the verge of being returned to [mother's] care, when she made a mistake. She has done what she can to ensure [father] has no access to her and will immediately call 911 and have him arrested if he makes any attempt to contact her. The children clearly love their mother and permanently separating them would impact the rest of their lives. The better course is for this court to permit the mother to show the agency and this court that she understands and is able to keep [father] out of all their lives."
The juvenile court denied the request without holding a hearing. In a written order, the juvenile court stated mother had not made a prima facie showing the request was in the children's best interests. The court concluded mother's efforts "could barely be considered changing circumstances."
At the section 366.26 hearing, on June 21, 2019, mother's counsel submitted a letter written by mother. In the letter, mother said she felt "sincere remorse." Mother said the reason she allowed "minimal contact" with father was because the parenting classes recommend " 'civil' co-parenting." Mother stated she did not come forward because she felt her reasoning would not be understood and she would be perceived negatively. Mother explained that she agreed to transport father because his mother was unable to do so, and she allowed him to drive because she did not know he was under the influence and because, in the past, if she did not agree to his demands, he would emotionally or physically abuse her. Mother wrote that she loves her children and "when they see me both of their faces light up with the love they have for me."
Mother's counsel requested the court apply the beneficial parent-child relationship exception and argued it would be detrimental to the children to terminate parental rights because the bond with mother was so strong. Counsel pointed out that as of January, the children were about to come back into her care. Counsel for father also argued the exception applied and said that father "does believe that there is a strong father/child bond between him and his children." Counsel for the agency argued in rebuttal that there was no evidence the termination of parental rights would be detrimental to the children.
The juvenile court found that the parents had regularly and consistently visited with the children but that the parents had not met their burden to prove the termination of parental rights would be so detrimental to the children that the detriment would outweigh the benefit the children would receive through the permeance and stability of adoption. The juvenile court terminated parental rights.
DISCUSSION
I. Mother's Section 388 Petition
Mother contends the juvenile court erred in denying, without an evidentiary hearing, her section 388 petition to reinstate reunification services because, as she alleges, her petition established the requisite prima facie showings entitling her to a hearing. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing new evidence or changed circumstances exist and changing the order will serve the child's best interests. (§ 388, subd. (a); In re Nolan W. (2009) 45 Cal.4th 1217, 1235.) Courts must liberally construe a section 388 petition in favor of its sufficiency. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) " 'A "prima facie" showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.]' [Citation.]" (In re Josiah S. (2002) 102 Cal.App.4th 403, 418.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Jackson W. (2010) 184 Cal.App.4th 247, 258.)
We review the juvenile court's summary denial of mother's section 388 petition for abuse of discretion. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079.) The denial must be upheld unless we can determine from the record that the juvenile court's decisions "exceeded the bounds of reason by making an arbitrary, capricious or patently absurd determination." (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.). When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
Here, in the juvenile court's written order denying mother's petition, the court noted the children had been in their placement since December 22, 2017 and "by all reports ... are thriving in their placement." The court noted that mother did not attempt to obtain a restraining order until one month prior to the section 366.26 hearing. The court stated that "taking some domestic violence classes and obtaining the restraining order is not even the beginning states of a complete reformation, and can barely be considered changing circumstances, if that." The juvenile court concluded: "There is no evidence presented by the mother of a completed reformation - just the merest beginning of reformation. The children have been in a stable and concurrent placement for the last 18 months, and by all accounts are both thriving and very much loved. Delaying permanency in this instance would not be in either of the children's best interests."
We cannot say the juvenile court exceeded the bounds of reason by denying mother's petition. First, the juvenile court's focus on the children's permanence and stability was proper. Parent and child share a fundamental interest in reuniting up to the point at which reunification efforts cease. (In re R.H. (2009) 170 Cal.App.4th 678, 697, overruled on other grounds in John v. Superior Court (2016) 63 Cal.4th 91.) By the time of a section 366.26 hearing to select and implement a child's permanent plan, however, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254.) Indeed, children have a fundamental independent interest in belonging to a family unit, and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (Marilyn H., supra, 5 Cal.4th at p. 306.) Adoption gives a child the best chance at a full emotional commitment from a responsible caretaker. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Therefore, after reunification efforts have terminated, the court's focus shifts from family reunification toward promoting the child's needs for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Mother's argument ignores this shift in focus. Mother did not allege she could presently provide a safe home for the children and was not requesting the children to be placed with her; she was requesting services be reinstated. This would delay permanence for the children.
Further, the juvenile court's conclusion that mother had not made a prima facie case of changed circumstances was reasonable. Here, mother had maintained she had not had contact with father throughout the life of the proceedings, yet on January 4, 2019, it was revealed that she had been with him on November 1, 2018. According to the police report, this incident occurred at approximately 7:30 a.m. Mother had domestic violence counseling the same day, as well as on November 7, 2018, and continued to maintain that she had no contact with father. The inference made by the department was that mother had had contact with father throughout the proceedings based on her admissions that in addition to being with him on November 1, 2018, she had put money on his books while he was in custody, had spoken to him on the telephone, and had allowed A.T. to speak to father on the telephone. These contacts were contrary to her case plan objectives of not allowing father to have contact with the children and not engaging in a relationship with domestic violence.
There was additionally a suggestion that A.T. had seen father and gone to his house. The social worker at the time relied in part on mother's counselor's assurances that mother had said she had not had contact with father in making their decision to continue home visits. In retrospect, it is a reasonable to infer that mother had allowed in person contact between at least A.T. and father against the objective of her case plan.
Based on this, the juvenile court concluded at the time mother's services were terminated that she had not learned from her services. It is in this context that the juvenile court considered mother's section 388 petition.
Mother did not allege in her petition how the further services would help her after her initial services did not result in reunification. A parent cannot prove a change of circumstances where their allegation of changed circumstances is participating in the same type of services he or she had used in the past. (See In re Marcelo B., supra, 209 Cal.App.4th at p. 642 [the father could not show changed circumstances by showing participation in substance abuse services where those services had previously failed.]) Further, mother had not completed any additional programs; she had only started them. "A petition which alleges merely changing circumstances [as opposed to "changed circumstances"] and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests. [Citation.]" (In re Casey D. (1999) 70 Cal.App.4th 38, 47.)
Mother argues the juvenile court abused its discretion by suggesting that mother could or should have retained a restraining order earlier. Mother suggests the juvenile court's comment was improper because mother was never required at any point throughout the process to obtain a restraining order. As mother maintained she had no contact with father, there did not appear a need for a restraining order. Had mother informed any one that father had been trying to contact her, the issue may have come up, but mother did not tell anyone about her contact with father. In the context of the totality of the court's written ruling, we do not find the court's comment about mother's delay in obtaining a restraining order to be in error. We find no abuse of discretion in the trial court's summary denial of mother's section 388 petition.
II. Beneficial Parent-Child Relationship Exception to Termination of Parental Rights
At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the minor be placed for adoption. (§ 366.26, subd. (c)(1).) There are statutory exceptions which " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' [Citation.]" (In re C.B. (2010) 190 Cal.App.4th 102, 122, fn. omitted.)
One of the statutory exceptions to the general preference of termination of parental rights is the "beneficial parent-child relationship exception." Section 366.26, subdivision (c)(1) provides the court shall terminate parental rights unless "[t]he court finds a compelling reason for determining that termination would be detrimental to the child [where] [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).) It is the parent's burden to show that termination of parental rights would be detrimental to the minor because of the exception to termination of parental rights and adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573-574.)
" '[B]ecause 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.' [Citation.]" (In re K.P. (2012) 203 Cal.App.4th 614, 621, italics added.)
The standard of review of a court's finding that a parent did not meet his or her burden to prove an exception to termination of parental rights applies, because it turns on a "failure of proof," is "whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, italics added.) Specifically, the question is "whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.) The evidence on the record before us does not compel a finding the exception applied as a matter of law.
We note that courts of appeal differ in how they articulate the standard of review in the context of exceptions to termination of parental rights. Some courts apply a "substantial evidence" standard (see In re Autumn H., supra, 27 Cal.App.4th at p. 576), some apply an "abuse of discretion" standard (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351), and yet others apply a "substantial evidence" standard to the factual determination (whether a beneficial parental relationship exists) and an "abuse of discretion" standard to the discretionary determination (whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child.) (In re K.P., supra, 203 Cal.App.4th at p. 622.) Additionally, the proper standard of review is currently on review before the Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839.
In any event, on this record, our conclusion would not be different under any of these standards. Under any of these standards of review, the practical differences between them are slight because they all give broad deference to the juvenile court's judgment. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) We should interfere only if under all the evidence viewed most favorably in support of the juvenile court's action, it finds no judge could reasonably have made the order. (Ibid.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences upholding the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court's judgment, contradicted or uncontradicted; and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the juvenile court's finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 13781379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
Here, the court found mother had regularly and consistently visited with the children but that the parents had not proven the termination of parental rights would be so detrimental to the children that it would be more detrimental than the benefit that the children would have in the stability and permanency provided through adoption. The court noted "that is proved by evidence and not simply argument." The court noted that A.D.T. was extremely young when he was removed, and both children have been in placement with the care provider for 18 months. The court noted the children were thriving and doing "extremely well" in their placement and were bonded with the care providers. The court also noted that that did not mean the children did not have affection for mother and "potentially" father but reiterated that the parents had not made a showing of detriment that is required under the beneficial parent child relationship exception.
The parties agree on appeal that mother and father maintained regular, consistent, and appropriate visits with the children throughout the dependency proceedings. Thus, the issue before us is whether parents met their burden that the children would suffer detriment if the parent child relationship were severed. We do not find the evidence compelled the contrary finding or that this is one of the extraordinary cases where this exception should have been applied.
"The 'benefit' prong of the exception requires the parent to prove his or her relationship with the child 'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.' [Citations.]" (In re K.P., supra, 203 Cal.App.4th at p. 621, italics added.) "[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
It is not enough to show that the children have an emotional bond with their mother. " '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.] Evidence that a parent has maintained ' "frequent and loving contact" is not sufficient to establish the existence of a beneficial parental relationship.' [Citation.]" (In re Marcelo B., supra, 209 Cal.App.4th at p. 643.) Rather, the preference for adoption is overcome if severing the relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. (Ibid.) "The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
We acknowledge there was evidence, highlighted by mother on appeal, that mother's visits with the children went well and that her children had positive reactions to her during them. But this evidence fell short of establishing mother's relationship with the children promoted their well-being to such an extent that it outweighed the well-being the children would gain in a permanent home with adoptive parents. Rather, it was noted that the children were doing well with their foster parents and appeared to be bonded to them. The CASA noted that visits ended well, with the children willingly going back to their foster parents. The visitation logs also indicated that in all the visits which occurred at the department after mother's home visits had been terminated, the children did not demonstrate any difficulties with visits ending.
One of mother's primary arguments is that her progress on her case plan merited the application of the exception because she had progressed to the point of substantial home visits. Mother cites several cases to support the proposition that good progress on the part of the parent justifies application of the beneficial parent-child relationship exception. (In re S.B. (2008) 164 Cal.App.4th 289 (S.B.); In re Amber M. (2002) 103 Cal.App.4th 681; In re Brandon C. (1999) 71 Cal.App.4th 1530; In re E.T. (2018) 31 Cal.App.5th 68.) These cases do not help mother. Rather, they serve as examples of the type of evidence normally required for the court to find the beneficial relationship exception exists which goes beyond participation in a case plan.
The issue of whether a showing that a parent has made progress in addressing the issues that led to dependency is necessary to meet the beneficial parental relationship exception is currently on review before the California Supreme Court in In re Caden C., supra, 34 Cal.App.5th 87, review granted July 24, 2019, S255839. --------
In S.B., supra, 164 Cal.App.4th 289 the appellate court found the juvenile court had erred by failing to apply the beneficial parent-child relationship exception where the juvenile court had found the parent and child had "an emotionally significant relationship." (Id. at p. 298.) In S.B., a bonding study was conducted wherein the clinician opined there was potential harm to S.B. were she to lose the parent-child relationship. (Id. at p. 296.) The juvenile court terminated parental rights in part because the grandparents would allow the relationship to continue. (Id. at p. 300.) The appellate court determined from the record before it that the "only reasonable inference" was that the child would be greatly harmed by the loss of the relationship with her father. (Id. at pp. 300-301.)
In In re Amber M., supra, 103 Cal.App.4th 681, the appellate court found the juvenile court erred by declining to apply the beneficial parent child relationship exception where a bonding study said they had a "primary attachment," "primary maternal relationship," and "it could be detrimental" to sever the relationship. Further, a CASA testified they disagreed with adoption recommendation due to bond and love between mother and children. (Id. at pp. 689-690.)
In In re Brandon C., supra, 71 Cal.App.4th 1530, the appellate court upheld the juvenile court's application of the beneficial parent child relationship exception. In Brandon C., the grandmother who was the prospective adoptive parent testified she would be willing to be the children's legal guardian. She testified she did not think it would be in the children's best interest to terminate their relationship with mother and father, explaining " 'they still have a good relationship with their parents, and I think that should continue.' " (Id. at p. 1533.) The appellate court found substantial evidence supported the court's finding.
In re E.T., supra, 31 Cal.App.5th 68, involved four-year-old twins who were "very tied" to their mother, and the mother was able to ease the children's fear and anxiety during weekly visits described as "therapeutic." (Id. at p. 76.) The appellate court found the juvenile court erred by declining to apply the beneficial parent-child relationship exception because it found the juvenile court applied the wrong standard because it found the bond "was not to such an extent that they can't be happy in their godparents' placement." The appellate court explained "[t]he standard is whether the children benefit from [the m]other's presence in their lives, not whether they could eventually be happy without her." (Id. at p. 77.)
Unlike the cases cited by mother, mother presented no bonding study or other evidence regarding what detriment the children would suffer should the relationship with their parents be severed. (See e.g., S.B., supra, 164 Cal.App.4th 289 [bonding study]; In re E.T., supra, 31 Cal.App.5th 68 [testimony of social worker that separation from mother caused the children anxiety]; In re Amber M., supra, 103 Cal.App.4th 681 [bonding study]; In re Brandon C., supra, 71 Cal.App.4th 1530 [testimony of prospective adoptive parent substantial evidence to support juvenile court's application of the exception].)
At the time of the section 366.26 hearing, the children had been living with their care providers full time for approximately six months, and their visits with mother had been significantly decreased. Their CASA reported no issues with the transition. Though there was evidence on the record the visits went well, and the children loved mother, we note again there is a strong statutory preference for adoption at the stage of the section 366.26 hearing to ensure permanency and stability for the children. We do not doubt mother cares deeply for the children and has perhaps begun to gain a healthier understanding of abusive relationships, but she has not shown that the juvenile court erred in terminating her parental rights.
Because we cannot say the evidence compelled the application of the beneficial parent-child relationship exception, we find no error in the juvenile court's declining to apply it.
DISPOSITION
The juvenile court's orders are affirmed.
POOCHIGIAN, Acting P.J. WE CONCUR: DETJEN, J. MEEHAN, J.