Filed 8/28/18 In re A.G. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

M.M. (Mother) and C.G. (Father), the parents of three children, appeal from an order terminating their parental rights. Mother contends the juvenile court erred when it determined the benefits of continuing her relationship with the children did not outweigh the benefits of adoption. Father joins in Mother’s arguments and asserts that, if they prevail, the order terminating parental rights should be reversed as to both parents. The order is supported by the record and complies with the law, so we affirm it.

BACKGROUND

The history of this case from the filing of the Welfare and Institutions Code section 300[1] petition through the order terminating reunification services and setting a permanency planning hearing after the combined 12-month review and section 388 hearing is discussed in our previous opinions in this matter, which we incorporate by reference. (C.G. v. Superior Court, Jan. 24, 2018, A152232 [nonpub. opn.]; In re Anthony G. et al./San Mateo County Human Services Agency v. Carl G., Nov. 15, 2017 A150037 [nonpub. opn.].) On October 12, 2017, Father filed a writ petition in this court challenging the termination of reunification services. We temporarily stayed the permanency planning hearing and on January 24, 2018, denied the writ petition and dissolved the stay.

On December 8, 2017, the San Mateo County Human Services Agency (the Agency) filed a report for the section 366.26 hearing set for December 12, 2017. The Agency recommended that parental rights be terminated and adoption selected as a permanent plan.

The social worker reported: “In a meeting on May 25, 2017 the undersigned explained to the mother she would need to follow through with the following services: continue to go to CORA’s [Community Overcoming Relationship Abuse] domestic violence support groups, attend a restraining order clinic, change her phone number, start a parenting program and prove to the Agency and courts that she no longer would have contact with the father unless he were to start/complete services. The undersigned also reported that it was the mother’s responsibility to show the court that she could protect her children in any way, [sic] this would be by staying in communication with the Agency or by moving to a confidential location. The mother’s communication with the Agency continues to be minimal and on June 4, 2017 the mother texted the undersigned reporting that she did not need a restraining order and would get one if she needed. Additionally, there are various instances that prove that the mother continues to maintain communication with the father including filing duplicate [section] 388 motions and having conversations with the children about attending events with the father present. The Agency has also observed a white van to be present at the mother’s home, [sic] this white van in previous reports, has been identified as the father’s transportation. Additionally, at the contest[ed] hearing on August 22, 2017, the father stated off the record to the court that ‘he had not glared at the mother, and that he and the mother came to the hearing in the same car, and that they continue to sleep and have sex with each other.’ Due to these circumstances, it seems as if the mother continues to have communication with the father and is ambivalent about the Agency’s concerns. Although the mother had started with services and has continued to fully participate in visitation with the children, this does not negate the concerns we have of the children coming in contact with the father as demonstrated in the previous dependency case with San Francisco County.”

The social worker wrote that “the child[ren] have also continued to thrive in the care of the godparents. The children are comfortable in the home and are excelling in school and with peer relationships. Additionally, the caretakers have gone above and beyond to connect the children to their needed services and provide them with additional supports outside of the Agency recommendations. The children have all stated to the undersigned that they feel comfortable in the home and are happy to remain in the godparents[’] care. The caretakers have also repeatedly reported that they are willing to be a permanent plan for the children and have reported that they would like to adopt all of the children.” The godparents/caretakers told the social worker that they “are and will be there for the children. They have known the children since they were very young, and living with their birth mother. The caregivers feel that they can provide a loving and stable home for the children.” They “feel it is their sacred obligation to meet the children’s need for seamless love and support, and to be kept together in one family. The caregivers want them to look back on their life and know that they didn’t miss out on having a childhood, and that they were and are loved.”

All three children were doing well in school. The oldest daughter’s therapist had been focusing their sessions around the approaching termination of Mother’s visits. The girl had various questions about the visits, but “has had no emotional reactions to this thus far.” However, the caretakers were concerned about her lying to her psychiatrist about her feelings and that she would continue to hide her emotions. It was decided to coordinate treatment between the therapist and her psychiatrist.

The boy’s therapy was focused on preparing for the reduction and eventual termination of visits with Mother. According to the therapist, he had not shown any emotional reaction to the decrease in visits “but does ask a lot of questions regarding termination.”

The youngest daughter was initially quiet and withdrawn in therapy but had become much more communicative and able to express her emotions. Her therapist reported no concerns since visitation with Mother had been reduced.

On February 15, 2018, the Agency filed an addendum to the section 366.26 report. The Agency continued to recommend adoption as the permanent plan and the godparent/caretakers’ home as the best and most appropriate placement. The godparents had an approved adoption home study. The social worker wrote that the children “are charming, animated, grateful, and courteous children. They have experienced traumatic histories and have resided in and out of foster care for nearly two years. Despite this, they have shown their positive attitudes and love for life when they feel safe and protected. The current caregivers / godparents have provided the children with the opportunity to live in a safe home, both physically and emotionally. The children have the ability to transfer their attachment to their primary caregivers and are considered adoptable.” The caregivers “are capable and willing to assist the children by ensuring that they attended recommended services” and to participate in additional services themselves to help the children address their mental health issues. “Overall, as the caregivers have demonstrated an ability to support the children so that they feel safe, loved, and protected in their home environment, the Agency believes that the children’s placement in this home continues to be the best and most appropriate placement.”

The children had visited with Mother throughout the course of the case. Therapeutic supervision was still necessary for her visits with the children to be successful. The Agency was concerned that Mother, if unmonitored, “might say or act inappropriately with the children (such as mention the father, ask about their feelings about the father, or make false promises about living all together again or vacationing together), which would further affect their mental health negatively.” The social worker wrote that “[a]lthough they have a relationship together, there does not appear to be healthy communication between the mother and children. It is the Agency’s position that there does not appear to be a detriment to any of the children should parental rights be terminated. The children have no current contact with the presumed father and have fear and anxiety about the possibility of seeing him. The children’s contact with mother can only safely occur with the Agency’s presence, and since family reunification services have already been terminated, the Agency is charged with developing the best permanent plan for the children that will not be disrupted or disturbed throughout the future. The children deserve stability, consistency, and permanence. The current caregivers have provided this for them. . . .”

The section 366.26 hearing was held February 27, 2018. None of the parties elected to question the social workers who prepared the reports. Father testified that he last saw the children in April 2016, when “we were at home in Brisbane. We were in the closet trying to figure out why the San Francisco social worker was harassing us with the Brisbane police.” He testified to a loving parent-child relationship with the children before they were removed and that he prepared their meals, ate with them and helped with their day care assignments. He made several attempts to contact the social worker since the case started but she refused to talk to him or provide him with services.

Mother testified that she had a deep emotional bond with her children, “beyond the limit,” and that their relationship never changed. The children always looked forward to seeing her at their visits. Mother would bring food she had prepared to the visits and they would play, write, do art projects and talk about what was going on in the children’s placement and school. The children always said that they missed her. Mother felt the children wanted the visits to continue and that it would be difficult for them to live without her. In her culture “being with a parent . . . means a lot. We are not—we don’t look at the way that we would be separated from our families.”

The court found neither parent established the existence of a beneficial relationship that outweighed the benefits of adoption.[2] It terminated parental rights, adopted a permanent plan of adoption, and set an adoption review hearing for August 6, 2018. The court also ordered a supervised farewell visit with Mother but specified the visit would immediately terminate if Mother mentioned Father to the children. Mother and Father filed timely appeals.

DISCUSSION

Mother contends the court erred when it declined to find the benefits of her relationship with the children precluded the termination of her parental rights. We review the refusal to make such a finding for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.).)[3]

If a child is found adoptable at the section 366.26 hearing, the juvenile court must terminate parental rights and place the child for adoption unless it finds for a compelling reason that termination would be detrimental to the child because, inter alia, “[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).) “To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. [Citation.] The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent.” (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) The child’s relationship with the parent must “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. In other words, the 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. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).) Only in extraordinary cases will preservation of the parent’s rights prevail over the legislative preference for adoption. (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

This is not the extraordinary case where the children’s relationship with their mother outweighs the well-being they could gain in a permanent adoptive home. We do not question Mother’s love for her children, that she was generally “very affectionate, inquisitive and appropriate in terms of her interactions” with them during visits, and that they share an emotional bond. But it is clear from the record that Mother was unable to provide her children a safe home. True, she engaged in services, made laudable progress toward and even completed some of her service goals. But the record—notably evidence that Mother maintained contact with Father, failed to seek a restraining order, talked to the children about attending events with him, and Father’s admission in August 2017 that he and Mother were still intimate—amply supports the conclusion that Mother failed to acknowledge the risk of harm that contact with Father poses to the children and the resulting finding that she would not or could not keep the children safe. As the court stated when it terminated Mother’s reunification services, “Even with the stakes being as high as they are, you have chosen [Father] over your children. That is what the evidence in this case shows. Those are the facts in this case. [¶] [Father] has shown himself to be a person who can barely control his behavior in a courtroom where there are armed bailiffs, let alone in a home with vulnerable people. [¶] It is a toxic and dangerous situation for these children . . . .”

On the other side of the balance, it is uncontested that the children have a positive, established parental relationship with prospective adoptive parents who have the ability and desire to provide them with a stable, nurturing home. All three children have stated they enjoy living with their caregivers and want to remain with and be adopted by them. “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The court’s determination was within its discretion.

DISPOSITION

The order terminating parental rights and ordering adoption as the permanent plan for the three children is affirmed.

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Siggins, P.J.

We concur:

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Jenkins, J.

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Ross, J.*