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In re J.C.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jul 17, 2017
E067878 (Cal. Ct. App. Jul. 17, 2017)

Opinion

E067878

07-17-2017

In re J.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.C., Defendant and Appellant.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J258370) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.

I

INTRODUCTION

When J.C. was two weeks old, he was removed from his parents' custody because of his mother's substance abuse, domestic violence, and the family's unsafe living environment. J.C.'s mother (Mother) appeals the juvenile court's order terminating parental rights to J.C. and selecting adoption as the preferred permanent plan. She contends the juvenile court erred in failing to apply the beneficial parent-child relationship exception to adoption under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). We affirm the judgment.

Father is not a party to this appeal.

Unless otherwise noted, all statutory references are to the Welfare and Institutions Code. --------

II

FACTUAL AND PROCEDURAL BACKGROUND

In January 2015, San Bernardino County Children and Family Services (CFS) received a referral that J.C.'s family was living in a shed. When a social worker went to the shed to investigate, the social worker observed through a crack in the shed door, Mother lying on the floor with J.C.'s father standing in front of her, dragging her. Mother screamed, "Juan don't hit me, don't hit me." The social worker notified law enforcement. J.C.'s parents (Parents) were arrested for child endangerment because of the family's unsafe living environment.

Parents admitted arguing but denied any physical violence. They also denied living in the shed, although it was furnished with their personal belongings. The criminal charges against Parents for child endangerment were later dropped and J.C.'s father (Father) was released. Mother remained incarcerated until February 24, 2015, because of outstanding warrants for failing to appear on a battery charge.

Juvenile Dependency

In January 2015, CFS filed a juvenile dependency petition alleging J.C. was at risk of harm based on Parents engaging in domestic violence, suffering from substance abuse, and failing to provide a safe living environment for J.C. Mother had a criminal history and a history of CFS referrals, in which her two older children were placed in a long-term guardianship with a maternal aunt in 2007. At the detention hearing in the instant case, the juvenile court ordered J.C. detained.

CFS reported in its jurisdiction/disposition report that Mother denied that Father had ever hit her or dragged her. Mother admitted she had had a substance abuse problem for many years but claimed to have been sober for a while. According to Mother, her substance abuse began when she was 15 years old. She used methamphetamine daily until she was 26 years old. In 2011, she received substance abuse treatment. She relapsed in 2014 but denied currently abusing substances. Mother reported that her two older children were in a guardianship with their maternal aunt, because Mother had been in and out of jail and had had a drug problem. Mother's criminal history, beginning in 2005, included being under the influence of controlled substances, misdemeanor burglary, and two felony counts of possessing a controlled substance.

Mother denied living in the shed. She said her mother lived next door to the shed. Parents were moving into an apartment the day they were arrested for child endangerment. They had been storing their belongings in the shed and were in the shed because she was changing J.C.'s diaper. The police reported conditions in the shed were hazardous to an infant. There were exposed electrical wires, the smell of gasoline fumes, and hazardous materials, including motor oil, gasoline, pesticides, and automotive part cleaner. Yard equipment hung from the ceiling. The police determined that Parents and J.C. had been living in the shed since J.C.'s birth.

At the jurisdiction/disposition hearing, the court sustained the petition allegations, and ordered reunification services and supervised visitation for Parents. Visitation for Mother was to commence upon her release from custody.

CFS reported in its August 2015, six-month status review report that Mother had entered a drug treatment program in March 2015, but was discharged from the program after testing positive for methamphetamines in March, April, and May 2015. She entered another program in July 2015. Mother's supervised visits with J.C. were appropriate. Mother reportedly had a good relationship with J.C. At the six-month review hearing, the juvenile court ordered reunification services continued.

In CFS's 12-month status review report, filed in February 2016, CFS recommended setting a section 366.26 hearing. Mother had not completed her case plan and Mother's visitation with J.C. was inconsistent. However, in a supplemental report, CFS stated that Mother had provided certificates of completion for domestic violence and parenting education courses. She also provided a substance abuse progress report and completion letter for individual counseling. CFS initially recommended the court continue reunification services for Mother, but changed its recommendation to terminating services after Mother tested positive for methamphetamines on February 16, 2016. At the 12-month review hearing in March 2016, the court terminated Parents' reunification services. Section 366.26 Hearing

CFS reported in its section 366.26 hearing report, that J.C.'s initial foster family and his subsequent foster family were unwilling to adopt J.C. Nevertheless, J.C. was doing well and was developmentally on target.

In July 2016, Mother filed a section 388 petition requesting J.C. be returned to her custody or, alternatively, reinstatement of reunification services. Mother alleged her changed circumstances included completing a residential substance abuse program, parenting classes and counseling, and obtaining an apartment and job. The juvenile court granted an evidentiary hearing on Mother's section 388 petition and continued the section 366.26 hearing to the same date in September 2016. In response to the section 388 petition, CFS recommended granting the petition and offering Mother family maintenance services. Mother had been sober for several months and was regularly visiting J.C. The court continued the section 366.26 hearing and hearing on the section 388 petition to September 2016, to allow J.C. time to transition to living with Mother.

Shortly after Mother had had one unsupervised transition visit, CFS discovered that Mother had tested positive for amphetamines on August 16 and 22, 2016, and on September 7 and 12, 2016. In accordance with CFS's recommendation, at the hearing on September 27, 2016, the juvenile court denied Mother's section 388 petition, finding there was no change in circumstances and it was not in J.C.'s best interest to grant the section 388 petition. The court continued the section 366.26 hearing to January 2017 to allow CFS to locate a concurrent adoptive home for J.C.

CFS reported in its January 2017 addendum report that it had located an adoptive home for J.C. CFS recommended terminating parental rights and implementing a permanent plan of adoption for J.C. At the section 366.26 hearing on March 3, 2017, the social worker testified Mother's visits had been appropriate throughout the juvenile dependency proceedings. J.C. had shown love and affection for Mother, and appeared to be bonded to her. During visits, Mother had demonstrated appropriate parenting skills. All visits were supervised, with the exception of the one eight-hour unsupervised visit during the transition period. Mother testified that all other visits were weekly visits until after the hearing on the section 388 petition. Then the visits were biweekly. During visits, J.C. ran to Mother and reached for her. Mother brought food, sang, played games with J.C., and changed his diaper. At the end of visits, J.C. cried and grabbed on to her.

During the section 366.26 hearing, the court found that J.C. and Mother had successful visits but there was not a parental bond. Mother had not held a parental role in J.C.'s life. The court noted J.C. was removed from Mother when he was two weeks old and had not lived with Mother ever since. The court noted that Mother had had the opportunity to transition J.C. back to her care but lost the chance to regain custody by relapsing on drugs. The court found J.C. would not be greatly harmed by terminating parental rights. The court therefore terminated parental rights, with adoption ordered the preferred permanent plan.

III

BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION

Mother contends that during the section 366.26 hearing, the juvenile court erred in rejecting the parent-child relationship exception to adoption. We disagree. A. Applicable Law

At the section 366.26 hearing, the juvenile court's task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S. (2005) 132 Cal.App.4th 158, 164 (Marina S.).) If the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the juvenile court must terminate parental rights, unless one of several statutory exceptions applies. (§ 366.26, subd. (c)(1); Marina S., at p. 164.)

Under section 366.26, subdivision (c)(1)(B)(i), the beneficial parent relationship exception may apply when a parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of showing either that "(1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental relationship would be detrimental to the child." (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).)

No matter how loving and frequent the contact, and notwithstanding the existence of an "emotional bond" with the child, "the parents must show that they occupy 'a parental role' in the child's life." (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The relationship that gives rise to this exception to the statutory preference for adoption "characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship." (In re Casey D. (1999) 70 Cal.App.4th 38, 51 (Casey D.).) To overcome the preference for adoption, the parent must show that severing the 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.]" (Angel B., supra, 97 Cal.App.4th at p. 466.)

We recognize that "[i]nteraction between natural parent and child will always confer some incidental benefit to the child. 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. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; in accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936 (Jason J.).) "A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction." (Casey D., supra, 70 Cal.App.4th at p. 51.)

The juvenile court may consider the relationship between a parent and a child in the context of a dependency setting, but the overriding concern is whether the benefit gained by continuing the relationship between the biological parent and the child outweighs the benefit conferred by adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156.) The factors to be considered when determining whether a relationship is sufficiently strong and beneficial to outweigh the benefit of adoption are: "(1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted; Jason J., supra, 175 Cal.App.4th at pp. 937-938.)

A child who has been adjudged a dependent of the juvenile court should not be deprived of adoption "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." (Angel B., supra, 97 Cal.App.4th at p. 466.) For the beneficial parent-child relationship exception to apply, "the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt." (Id. at p. 468; Jason J., supra, 175 Cal.App.4th at p. 938.) The juvenile court should order adoption unless exceptional circumstances exist. (Casey D., supra, 70 Cal.App.4th at p. 51; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re K.P. (2012) 203 Cal.App.4th 614, 621.) B. Standard of Review

California courts have disagreed as to the applicable standard of review for an appellate challenge to a juvenile court ruling rejecting a claim that an adoption exception applies. We agree with the view expressed in In re K.P., supra, 203 Cal.App.4th at pages 621-622, that "the review of an adoption exception incorporates both the substantial evidence and the abuse of discretion standards of review." The substantial evidence standard of review applies to the factual determination of whether a beneficial parental relationship exists. (Ibid.) The abuse of discretion standard of review applies when determining whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child. (Ibid.) C. Discussion

Mother has not demonstrated that her relationship with J.C. is so significant that its termination would greatly harm J.C. or that her relationship with J.C. outweighs the well-being J.C. would gain in a permanent, stable adoptive home. (Angel B., supra, 97 Cal.App.4th at p. 466.) J.C. was only two weeks old when removed from Mother and, when the court terminated parental rights, J.C. inevitably was too young to understand the concept of a biological parent.

Although the evidence indicates that Mother acted lovingly and appropriately with J.C. during visits, she has not demonstrated that J.C.'s relationship with her was so significant that its termination would cause J.C. detriment. Mother regularly visited J.C., but J.C. had only lived with her during the first two weeks of his life. With the exception of one visit, all visits were supervised and were for only one to two hours a week initially, and biweekly after the section 388 hearing. Mother was given the opportunity to transition to returning J.C. to her care but Mother relapsed on drugs and was unable to maintain sobriety. Mother lost the chance to regain custody of J.C. and supervision of visits was again required, with visits reduced to biweekly.

The record thus does not support a finding that Mother's relationship with J.C. was sufficiently significant such that J.C. would suffer detriment from its termination. The evidence does not show that severing Mother's relationship with J.C. would deprive J.C. of a substantial, positive emotional attachment causing J.C. to suffer great harm. Mother has not demonstrated that "the relationship 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." (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1253.) At the time of the section 366.26 hearing, Mother did not hold a parental role or have a substantial, positive emotional attachment such that J.C. would be greatly harmed by termination of Mother's parental rights. (Angel B., supra, 97 Cal.App.4th at p. 466.) Although after termination of Mother's reunification services, she attempted to overcome factors leading to the removal of J.C. and regularly visited him, substantial evidence shows that Mother's relationship with J.C. was that of a friendly visitor or nonparent relative, and not that of a parent and child.

On the other hand, if Mother's parental rights were not terminated, J.C. would be deprived of a permanent, stable adoptive family, which the Legislature has deemed preferable to long-term foster care or legal guardianship and to prolonging adoption of an infant beyond the streamlined time frame provided in the juvenile dependency statutes. (Angel B., supra, 97 Cal.App.4th at p. 468.)

Mother's reliance on In re C.B. (2010) 190 Cal.App.4th 102 (C.B.) is misplaced. In C.B., the court did not hold that the beneficial parent-child relationship exception applied. Rather, the court reversed the order terminating parental rights and remanded the case to the juvenile court for reconsideration of whether the evidence established that the exception applied. The court in C.B. concluded the juvenile court erred in rejecting the beneficial parent-child relationship exception in part based on the unenforceable expectation that the prospective adoptive parents would voluntarily permit future contact between the children and their biological parents. (Id. at p. 128.)

In addition, the court in C.B. concluded there was evidence supporting a finding the parents' had a strong, beneficial parent-child relationship such that termination of parental rights would be detrimental to the children, despite a lack of day-to-day contact and interaction, because the children were older. (C.B., supra, 190 Cal.App.4th at p. 126.) At the time of the section 366.26 hearing, the children were 9, 10, and 17 years old. The C.B. court found that the children "were 'of an age where they are intellectually and emotionally aware of whom their parents are.'" (Ibid.) The children testified that "'they would be "mad" and "sad" if they were not able to have contact with their mother, . . ." (Ibid.) The C.B. court further noted that the juvenile court had observed that the "'children know their parents as their parents' and 'view [them] as their parents.'" (Ibid.)

C.B. is distinguishable in that in the instant case the juvenile court did not reject the beneficial parent-child relationship exception based on the expectation that J.C.'s prospective adoptive parents would voluntarily permit future contact between J.C. and Mother. In addition, J.C. was an infant during the juvenile dependency proceedings and had lived with his parents for only two weeks. Thereafter, visitation was supervised and for only one or two hours once or twice a week, or biweekly later on in the proceedings. The record demonstrates that it was unlikely that J.C. was intellectually or emotionally aware that Mother was his biological parent. (C.B., supra, 190 Cal.App.4th at p. 126; Casey D., supra, 70 Cal.App.4th at p. 51.)

As observed in Casey D., supra, 70 Cal.App.4th at page 51, "adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption. That showing will be difficult to make in the situation, such as the one here, 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, rather than caretaker or friendly visitor relationship with the child."

Here, J.C. was two weeks old when removed from his parents and never lived with Mother or Father thereafter. Mother failed to reunify with J.C., despite concerted efforts to do so, because of her inability to free herself from substance abuse. Mother has not demonstrated that the instant case constitutes an exceptional circumstance in which there exists "such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption." (Casey D., supra, 70 Cal.App.4th at p. 51.) The juvenile court therefore did not abuse its discretion in rejecting the beneficial parent-child relationship exception and terminating parental rights.

IV

DISPOSITION

The judgment terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J. We concur: MILLER

Acting P. J. FIELDS

J.


Summaries of

In re J.C.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jul 17, 2017
E067878 (Cal. Ct. App. Jul. 17, 2017)
Case details for

In re J.C.

Case Details

Full title:In re J.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jul 17, 2017

Citations

E067878 (Cal. Ct. App. Jul. 17, 2017)