Filed 11/6/18 In re G.N. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant W.P.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant R.N.

Michelle D. Blakemore, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

The juvenile court terminated the parental rights of defendants and appellants, W.P. (Mother) and R.N. (Father), as to G.N. (Minor), born in September 2016. On appeal, Mother contends the court erred in declining to apply the beneficial parent-child relationship exception to termination of parental rights. Father simply maintains that any reversal as to Mother should inure to his benefit as well. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY[1]

On December 27, 2016, personnel from plaintiff and respondent, San Bernardino County Children and Family Services (CFS), received a referral alleging emotional abuse and general neglect of the children by Mother and physical abuse by Father. The allegations alleged substance abuse by Mother and domestic violence in the presence of the children; Father^[2] reportedly threw a beer can at Mother and hit Minor.

On January 3, 2017, CFS personnel received a second referral alleging Mother was transient, on drugs, and had left the children with a friend, J.C. The children disclosed witnessing Mother and Father (Parents) engage in domestic violence while in their care. They also described illicit substance use by both Parents and drug paraphernalia in the home. They described being hit by both Parents. They disclosed that on one occasion Father threw a cup at Mother’s head, causing her to have a bloody ear. Father would pull Mother’s hair and hit her with his hands. The children said they did not feel safe with Parents. On January 25, 2017, M.M.M.2 reported she had not seen Mother in four months; she said Mother left the children because Mother wanted to be with her boyfriend.

Mother had a previous history with CFS, including three previous neglect investigations, three prior substance abuse investigations, and a separate general neglect investigation with respect to M.M.M.1, which prompted voluntary family maintenance services. When the social worker met with Mother, Mother refused to provide an address for the social worker to assess provisions for Minor. Mother admitted mutual domestic violence with Father: “‘I would get the best hits.’” However, she denied the children were present during these incidents; she said the children were lying when they said otherwise; Mother reported that Parents would tell the children to go to their room when Parents fought. The social worker told Mother to drug test the day after their initial interview; Mother failed to show for the test.

Father had an extensive history with CFS; reunification services as to six of Father’s other children had previously been terminated; Father’s parental rights had been terminated as to one of his other children. Father also had an extensive criminal history. At the time of the initial investigation, the social worker could not locate Father.

The social worker filed separate juvenile dependency petitions as to each of the children. With respect to Minor, the petition alleged Mother had a substance abuse problem (b.1); Father had a violent criminal history (b.2); Father had a history of domestic violence (b.3); Mother exposed the children to domestic violence (b.4); and that six of Father’s previous children had been removed from his custody, with all of whom he had failed to reunify and as to one of whom he had had his parental rights terminated (j.5-j.8). On February 23, 2017, the juvenile court detained the children.

In the jurisdiction and disposition report filed on March 13, 2017, the social worker noted Minor had been placed in foster care; the other children were left in the care of J.C. Father, who had apparently been located, denied any instances of domestic violence. Mother visited with the children separately. Mother provided a negative drug test on February 27, 2017.

The social worker recommended the juvenile court find the allegations in the petition true, remove Minor from Parents’ custody, deny reunification services to both Father and Father 2, and order reunification services for Mother. The recommended case plan for Mother included parenting classes, domestic violence classes, counseling, and drug treatment.

In an additional information for the court filed on April 18, 2017, the social worker reported Mother had informed her that Father had been arrested for domestic violence against Mother on April 5, 2017. The social worker confirmed the arrest. Mother continued to have supervised visits with the children at CFS offices.

At the jurisdiction and disposition hearing on April 18, 2017, the juvenile court found all the allegations in the petitions true, sustained the petitions, and declared the children dependents. The court removed the children from Parents’ custody. The court denied reunification services to Father under Welfare and Institutions Code section 361.5, subdivision (b)(10) (reunification services terminated as to previous children) and (b)(11) (parental rights terminated as to a previous child).[3] The court denied Father 2 reunification services pursuant to section 361.5, subdivision (e)(1) (parent incarcerated). The court ordered reunification services for Mother.

In the status review report filed on October 17, 2017, the social worker recommended the court terminate Mother’s reunification services and set the section 366.26 hearing. The social worker referred Mother to individual counseling, parenting education, domestic violence, substance abuse services, and random drug testing on March 27, 2017. Mother enrolled in parenting classes on March 30, 2017; domestic violence classes on April 3, 2017; and individual counseling on April 4, 2017. Mother attended five parenting classes, six domestic violence classes, and individual counseling. Her last attendance in services occurred on June 22, 2017. Her service provider attempted to re-engage Mother on July 24, 2017; however, Mother indicated she would no longer be attending services at their agency; she said she would be taking classes at another agency.

Mother enrolled in substance abuse services on June 20, 2017, but appeared to be struggling to stay clean; she was referred to an intense, outpatient program on July 5, 2017, in which she enrolled on July 20, 2017. She attended those services between July and September, and then stopped attending. During her attendance, she tested positive for methamphetamine four times, failed to show for two tests, and tested negative once. Mother failed to show for 12 random drugs tests requested by the social worker and tested negative once.

On August 17, 2017, Mother’s counselor brought her to CFS offices where the counselor reported that Mother had expressed that Father had battered her. The social worker observed Mother’s left eye was swollen black and purple. On August 20, 2017, Mother reported the incident to the police, who arrested Father. Father’s family subsequently threw Mother out of their home; she was then homeless.

On May 26, 2017, M.M.M.1 and M.M.M.2 had an argument with Mother because she was blaming them for the dependency proceedings.^[4] During subsequent visits, Mother was observed to act appropriately; the children appeared to enjoy the visits. Mother attended all visits as scheduled between April and June 2017; however, Mother left early during visits in August and September 2017.

On October 18, 2017, the court ordered Mother to drug test that day; failure to test would be considered as a positive result. In an additional information for the court filed on December 1, 2017, the social worker reported that Mother had approached her after the hearing on October 18, 2017, to ask if she had to test that day; Mother said that if she did, it would reflect positive for methamphetamine because Mother had used methamphetamine the previous night. Mother tested nonetheless; the result was positive for amphetamines. Mother failed to show for another drug test scheduled for November 2, 2017. Mother began attending individual counseling again through another agency on November 13, 2017, and had been showing improvement.

At the hearing on December 1, 2017, Mother’s counsel argued: “Your Honor, one thing I would like to point out, in the [section] [361].21[, subdivision] (e) report it states that the older three minors are in one placement and the youngest minor G[.N.], he is in a separate placement. He’s one year old. So for the kids that are—for the three kids in one placement, the youngest of that group is eight. And children ages three and older get twelve months—you get twelve months of services unless there is a sibling group. I don’t think this is a proper sibling group because the one kid who would make this a sibling group for only six months of services is in a separate placement.” The court responded: “I have reviewed the statute as cited by counsel. I don’t have the same reading. It looks to me when defining what a sibling group is, the requirements are a sibling group who were removed from parental custody at the same time, which did occur in this case.”

The court found Mother had made no progress. Thus, the court terminated reunification services for Mother and set the section 366.26 hearing.

On the petition for extraordinary writ, Mother contended the court erred in terminating her reunification services as to the elder siblings because they were not placed with Minor, as required by section 361.5, subdivision (a)(1). By opinion dated February 6, 2018, we granted Mother’s petition and ordered the juvenile court to provide Mother with a minimum of six additional months of reunification services as to the elder siblings.

In a report filed on March 20, 2018, the social worker recommended Parents’ parental rights as to Minor be terminated and he be placed for adoption with the prospective adoptive parents (PAPs). The social worker noted that Minor remained in the only foster home in which he had been placed during the proceedings and that the family wished “to legalize their parental relationship with the child.” The prospective adoptive mother informed the social worker Minor was “very bonded” to the PAPs: “[W]e have had [Minor] since he was five months old[;] [h]e is our life and joy[;] we are dedicated to him.” “We love him so much and it’s an overwhelming feeling of joy[] and happiness when I’m around him. I also want to provide a safe and healthy life for [Minor]. We can provide [Minor] with what he needs to succeed in life.” Mother attended all her scheduled visits in the months of December 2017, January 2018, and February 2018. She cancelled one visit in March 2018. Father had not visited Minor since at least March 16, 2017.

On March 26, 2018, Mother filed a section 388 petition seeking reinstatement of reunification services. Mother alleged as changed circumstances that she had completed seven sessions of nurturing parenting and had engaged in continuous domestic violence classes since January 2018. She asserted the change would be in Minor’s best interest because he “would be able to reunify with his mother.” The juvenile court denied the petition, finding the request did not state new evidence or a change of circumstances, was not in Minor’s best interest, and Mother had tested positive for drugs when giving birth to another child on March 25, 2018.

In an addendum report compiled on May 9, 2018, the social worker reported that Mother had been receiving services at an inpatient facility in San Bernardino, but left on or about May 4, 2018. Mother told the social worker Mother had relapsed a week earlier.

On May 14, 2018, the juvenile court held the section 366.26 hearing. Father testified he had been incarcerated since October 2017, and was just released on or around March 9, 2018. Father immediately began visiting Minor weekly upon Father’s release from jail. Father testified he cared for and played with Minor during visitation. He believed his continued relationship with Minor would be beneficial to Minor.

Mother testified she visited Minor weekly, but only missed a couple of visits over the 15 months of the proceedings. During visitation, she would play and care for Minor. When visits were over, Minor wished to leave with Mother. Prior to detention, Mother fed, bathed, and cared for Minor during his first five months of life. Mother believed Minor needed her.

The juvenile court found Minor likely to be adopted. The court noted: “I will agree that this child has been out of care almost—for over 15 months and three times the length of the time that he lived primar[ily] with the mother as he was removed at five months.” The court found Father had not visited consistently due to his incarceration, but that Mother “has been I think overall consistent.” Nonetheless, the court found neither parent occupied a parental role in Minor’s life; thus, “it would [not] be detrimental to him to sever the bond.” The court terminated Parents’ parental rights as to Minor.

II. DISCUSSION

Mother contends the court erred in determining that the beneficial parent-child relationship exception to termination of parental rights did not apply. Father asserts that, to the extent we agree with Mother, any reversal of the order terminating parental rights should also be reversed as to him. We disagree with Mother.

Once reunification services have been terminated and a child has been found adoptable, “adoption should be ordered unless exceptional circumstances exist.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i), one such exception exists where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” A beneficial relationship is established if it “‘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 Brandon C. (1999) 71 Cal.App.4th 1530, 1534, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “The parent has the burden of proving that termination would be detrimental to the child . . . .” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)

“‘[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. 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.’ [Citation.]” (In re C.F. (2011) 193 Cal.App.4th 549, 555.)

“[I]t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) “‘A biological parent who has failed to reunify with an adoptable child may not derail 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.’ [Citation.]” (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)

“We determine whether there is substantial evidence to support the trial court’s ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court’s ruling. [Citation.] If the court’s ruling is supported by substantial evidence, the reviewing court must affirm the court’s rejection of the exceptions to termination of parental rights . . . .” (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)

Here, although Mother consistently visited Minor, she failed her burden of proving termination of her parental rights would be detrimental to Minor. CFS personnel took Minor into custody when he was only five months old. Mother’s visitation, although consistent, never progressed beyond supervised visitation. As the juvenile court noted, for 75 percent of his life, Minor’s daily needs had been provided for by the PAPs. Minor and the PAPs were bonded with one another and the PAPs were dedicated to providing for his needs. Although Minor may have garnered some benefit from continued visitation with Mother, Mother failed to prove that benefit outweighed his need for a stable, permanent placement.

Mother complains: “There were no details in [CFS]’s reports about what occurred at any of the visitation during the entire case . . . .” However, Mother could have objected to admission of the reports, requested supplements to address the issue, or called the social worker to testify as to the quality of the visits. Mother did none of these things. As such, Mother has forfeited any issue with respect to a contention that the reports were incomplete. (People v. Seijas (2005) 36 Cal.4th 291, 301 [a specific and timely objection must be made in the trial court on the ground sought to be urged on appeal].) Sufficient evidence supported the juvenile court’s determination that the beneficial parent-child relationship exception did not apply such that termination of Mother’s parental rights would not be detrimental to Minor.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

MILLER

J.

SLOUGH

J.