In re J.M.
Filed 8/6/13 In re J.M. CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
In re J.M. et al., a Person
Coming Under the Juvenile Court Law.
H039138
(Santa Clara
County
Super. Ct.
Nos. JD20291, JD20292,
JD20293)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN’S SERVICES,
Plaintiff and
Respondent,
v.
C.V.,
Defendant and
Appellant.
Appellant
C.V. (the mother) challenges the juvenile court’s order terminating her
the permanent plan for her three children.
She claims that the court erred in failing to find that the parental
relationship exception precluded termination.
We disagree and affirm the order.
Background
The
mother’s three children, five-year-old Jo.M., three-year-old Ja.M., and
eight-month-old H.R. (the children),were detained in August 2010. Petitions were filed alleging that the
mother’s chronic ongoing substance abuse placed the children at risk of
physical harm and neglect in her care.
The mother had not been caring for the children. Instead, she had left the children in the
care of the children’s great-grandparents, who were too aged and ill to care
for them.
methamphetamine habit. The fathers of
the children were both incarcerated. The
eldest child reported that “he does not see [the mother] a lot,†even though
she lived with the great-grandparents.
The maternal grandmother reported that she and the maternal great‑grandparents
had been taking care of the children “since they were born,†with the
great-grandparents providing “most of the care.†The great-grandparents “didn’t get any help
from†the mother.
The
mother and both fathers submitted on the social worker’s report at the October
2010 jurisdictional hearing, and the
court found the petition true. At the
December 2010 dispositional hearing, the court removed the children from the
mother’s custody, placed the children in foster care, and ordered that the
mother and both fathers be afforded reunification services. The mother’s case plan required her to
complete a specific parenting class and a program of counseling or
psychotherapy, undergo random drug testing on a weekly basis, attend a 12-step
program at least three times a week and provide verification of attendance, complete
a substance abuse assessment, and participate in any recommended
supervised visits with the children for two hours each week.
The
mother, who was incarcerated until January 2011, completed a parenting class,
attended NA, and completed a substance abuse program while she was in jail, but
the parenting class was not the one required by her case plan. She was consistently visiting the children. At the July 13, 2011 six-month review hearing, the Santa Clara
County Department of Family and Children’s Services (the Department)
recommended that the mother’s services be continued but that services for the
fathers be terminated. The mother had
completed a parent orientation class, but she had not completed the specific
parenting class required by her case plan.
She had attended 12 sessions of counseling with a therapist. The mother had not been compliant with her
drug testing requirements. She had
failed to test on “many occasions when she has been required to test.†The mother had not been attending the
required number of NA meetings each week.
She had continued to consistently visit the children, but she was often
late for visits. The court continued her
reunification services and her weekly
visits with the children. These visits
were twice weekly for one hour each.
In
November 2011, after a four-month transition period, the children moved from a
foster home, in which they had been placed for a year, to a prospective
adoptive home. At the November 2011
12-month review hearing, the Department recommended that the mother’s services
be terminated and a Welfare and Institutions Code section 366.26 hearing be
set. The mother still had not completed
the specific parenting class required by her case plan. She had continued to be noncompliant with the
drug testing requirement. She had failed
to test on many occasions and had once submitted a sample that the lab
determined was not urine. The mother had
nearly always been late for visits with the children. The court terminated the mother’s
reunification services and set a Welfare and Institutions Code section 366.26
hearing. The mother’s supervised visits
with the children were reduced to once a week for one hour.
Although
the Welfare and Institutions Code section 366.26 hearing was originally set for
March 2012, it was repeatedly continued.
In August 2012, the mother filed a Welfare and Institutions Code section
388 petition seeking custody or reinstatement of reunification services. At the September 2012 hearing on this
petition, the mother testified that the children were “real attached to meâ€
during visits. She maintained that she
and the children had “a very strong†bond.
In her view, the children would “go through a lot of pain†if she lost
them. The mother claimed that “I’m the
one that raised them, taught them.†Her
trial counsel introduced as an exhibit service logs describing the visits
between the mother and the children.
These logs showed that the mother, often accompanied by the maternal
grandmother and the maternal great-grandmother, had pleasant visits with the
children. They also demonstrated that
the mother missed a number of visits and was often late for visits. The court denied the petition. A second such petition was summarily denied a
couple of weeks later.
At
the October 2012 Welfare and Institutions Code section 366.26 hearing, the sole
issue was applicability of the parental relationship exception. The Department recommended that parental
rights be terminated and adoption be selected as the permanent plan. The mother had continued to be late to
visits. She was late for more than half
of the visits after reunification services were terminated. It was undisputed that the children enjoyed
the visits, that they had “a relationship with their mother,†and that they
“enjoy spending time†with her. The
prospective adoptive family was open to future contact between the children and
the mother.
The
two older children, who were at this point six years old and four years old,
gave inconsistent indications of their desires.
They had both said they would like to live with their “biological
family,†but the eldest had also said that he would be “happy†if the court’s
decision was that he would live with the prospective adoptive parents. And he had told the prospective adoptive
parents that “he feels bad as he wants to be in their home and ‘loves it here’
but doesn’t want to say no to his mother.â€
The middle child said that she wanted the prospective adoptive family to
be “her forever family.†The mother did
not appear at the hearing, and her trial counsel did not present any testimony.
The
court rejected the mother’s contention that the parental relationship exception
applied. “[N]ot withstanding [
continued to be supervised once a week for an hour or less and that could
never . . . suggest that [the mother] had a parental role
with the children.†The court found that
there was not a “beneficial†relationship, and, even if there was, it would not
outweigh the benefits to the children of adoption. The court terminated parental rights and
selected adoption as the permanent plan for the children. The mother timely filed a
order.
Analysis
“Adoption
must be selected as the permanent plan for an adoptable child and parental
rights terminated unless the court finds ‘a compelling reason for determining
that termination would be detrimental to the child due to one or more of the
following circumstances: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from
continuing the relationship.’ †(In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) This is known
as the parental relationship exception.
The
proponent of the parental relationship exception bears the burden of producing
evidence of the existence of a beneficial parental relationship. Because the existence of such a relationship
is a factual issue, the court’s finding on this point is reviewed for
substantial evidence. (
“[A] challenge to a juvenile court’s finding that there is no beneficial
relationship amounts to a contention that the ‘undisputed facts lead to only
one conclusion.’ [Citation.] Unless the undisputed facts established the
existence of a beneficial parental or sibling relationship, a substantial
evidence challenge to this component of the juvenile court’s determination
cannot succeed.†(Ibid.)
Even if the
juvenile court finds a beneficial parental relationship, the parental
relationship exception does not apply unless the court also finds that the
existence of that relationship constitutes a “compelling reason for determining
that termination would be detrimental . . . .â€
(Welf. & Inst. Code, § 366.26, subd.
(c)(1)(B).) A juvenile court’s
ruling on whether there is a “compelling reason†is reviewed for abuse of
discretion as the court must “determine the importance
of the relationship in terms of the detrimental impact that its severance can
be expected to have on the child and . . . weigh that
against the benefit to the child of adoption.â€
(Bailey J.,
“ ‘The factors to be considered when
looking for whether a relationship is important and beneficial 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.’ [Citation.] ‘Interaction 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.’ [Citation.]
Evidence of ‘frequent and loving contact’ is not sufficient to establish
the existence of a beneficial parental relationship.†(Bailey
J., supra, 189 Cal.App.4th at pp.
1315-1316.)
The
evidence before the juvenile court supports its finding that the mother did not
have a beneficial relationship with
the children. These children were
detained when they were very young. The
youngest was less than a year old and the eldest just five years old. Even before their detention, the mother was
not their caregiver. The maternal great‑grandparents
(and to a lesser extent the maternal grandmother) had been responsible for the
children since they were born. The
children had little contact with their mother prior to their detention despite
the fact that she lived in the same home with them and the
great-grandparents. Hence, she had not
established a substantial parental
relationship with the children prior to their detention. After their detention, the mother’s
relationship with the children was limited to supervised weekly visits. But for the period when she was incarcerated
during the first few months after detention, the mother arrived late for most
of these hour-long supervised visits, further limiting their duration. Given that she had failed to establish a
parental relationship prior to detention, her frequently tardy, supervised
visits could not possibly succeed in developing such a relationship.
The
evidence relied on by the mother did not establish otherwise. It is not enough for a parent to show that
they consistently visited the children.
The parent must show that a parental relationship exists that is
beneficial to the children. The mother
testified at the hearing on her Welfare and Institutions Code section 388
petition that: (1) she had
“raised . . . [and] taught†the children; (2) the children
were “real attached to me†during visits; (3) she and the children had “a very
strong†bond; and (4) she believed that the children would “go through a lot of
pain†if she lost them. All of the other
evidence demonstrated that the mother had not “raised†the children. The great-grandparents had taken on this
burden because the mother shirked it.
While it was undisputed that the children enjoyed the visits, the
juvenile court was not required to credit the mother’s subjective belief that
the children were “real attached†to her or that they had a “strong bond.†The children were plainly happy living with
the prospective adoptive parents, who acted as and were treated by the children
as their parents. The entire relationship
between the children and the mother was a product of supervised visits that
were frequently less than an hour long due to the mother’s refusal to arrive on
time. The juvenile court could have
concluded that this type of relationship did not offer any significant benefit
to the children.
Since
juvenile court’s finding that there was not a beneficial parental relationship,
there is no need to consider the “compelling reasons†component of the parental
relationship exception. A minimal
parental relationship can never outweigh the benefit to young children of
adoption into a home in which they are happy and flourishing. The juvenile court did not err in concluding
that the parental relationship exception did not apply and terminating the
mother’s parental rights.
III. Disposition
The order
is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo,
Acting P. J.
_____________________________
Grover,
J.
name="_ftn1" title="">[1] The maternal great-grandfather died in
February 2011. The maternal great‑grandmother
was severely ill throughout the dependency proceedings.
name="_ftn2" title="">[2] The mother’s trial counsel’s original
proposed witness list included the mother who “will testify as to her bond with
the children,†but her amended list did not include the mother.
