Filed 9/20/17 In re Malia M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kern County. Raymonda B. Marquez, Judge.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Mark L. Nations, Interim County Counsel, and Kelli Falk, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Desirae B. (mother) appeals from orders of the juvenile dependency court finding her three minor children adoptable and terminating her parental rights at the conclusion of a contested hearing on February 27, 2017, pursuant to Welfare and Institutions Code section 366.26.[1] Mother contends the juvenile court erred in failing to apply the beneficial parent-child relationship exception to adoption and termination of her parental rights.[2] We affirm the judgment.

Section 300 Petitions and Early Proceedings

In July 2015, the Kern County Department of Human Services (department) received a referral of general neglect of Malia, Samuel, and Jeremiah because the mother’s home did not have utilities or water. When the social worker attempted to make contact with mother, the residence was vacant. In early August 2015, the department received a second referral alleging general neglect of the three children. The referral noted the home was trashed with dirty mattresses on the floor, cardboard in the windows, trash and mattresses in the yard, and mother partying all night using drugs. The social worker went to the address and found a small trailer meeting the description of the property in the referral. Mother explained she was living at a different location with a friend but mother could not explain where the residence was and did not know the address.

The social worker confirmed that mother sometimes stayed with a friend who lived nearby. Mother agreed to receive services from the department to assist her with Malia. The social worker had difficulty reconnecting with mother. On September 22, 2015, the department received a third referral alleging general neglect of the three children. The referral alleged mother and another family were squatting in a trailer with holes in the walls, no electricity and no refrigerator. There were no beds or furniture in the trailer. The social worker had face-to-face contact with mother at the property described in the referral and found the utilities were working. There was also furniture and beds in the residence. The residence was cluttered but without visible health and safety hazards. Mother told the social worker no one owned the residence, but mother had rented the home a long time ago.

On October 19, 2015, mother took Malia—then three months old—with her to a hardware store while she stole a faucet because child protective services was going to inspect mother’s home based on pending referrals involving Samuel and Jeremiah.[3] Store employees waved down a law enforcement officer who had witnessed mother throwing the faucet into a bush. The officer arrested mother. A section 300 petition was filed for Malia on October 21, 2015, alleging mother’s failure to protect the minor due to the home being dirty and unsanitary, the minor suffering from an untreated eye infection, the risk to the minor due to mother’s substance abuse, and earlier petitions filed on mother’s older children, who are not subjects of this appeal. The petition further alleged mother’s parental rights were terminated in 2005 as to two older children not subject to these proceedings.

Malia was detained on October 23, 2015. Mother waived her right to a trial at the jurisdiction hearing on December 3, 2015. The juvenile court found all of the allegations in the petition to be true. Prior to the disposition hearing, mother was enrolled in a 52-week counseling program for parenting and substance abuse treatment. Mother was making poor progress in controlling her substance abuse, showing up to class under the influence of controlled substances. Mother did attend regular visits with Malia and was both attentive and affectionate throughout the duration of the visits. Prior to the disposition hearing, mother tested positive for controlled substances. At the disposition hearing on January 21, 2016, the juvenile court found Malia to be a dependent of the court and removed her from mother’s custody. The court ordered reunification services for mother, including regular supervised visitation with Malia.

When mother was arrested for theft with Malia in her care, maternal relatives picked up Samuel, then eight years old, and Jeremiah, then six years old, and took them both to Oceanside before social workers arrived. On March 24, 2016, mother went to Oceanside and took the boys into protective custody for the purpose of facilitating more frequent visitation.

The department filed juvenile dependency petitions for Samuel and Jeremiah on March 30, 2016. The petitions were based on the theft incident involving Malia, mother’s ongoing substance abuse issues, and the previous dependency cases involving mother’s older children. Mother was failing drug tests. The boys were detained on April 4, 2016. On May 24, 2016, the jurisdiction hearing was held on both petitions and was uncontested by mother. The juvenile court found the allegations in the petitions to be true.

Combined Review and Disposition Hearings

On October 26, 2016, the juvenile court conducted a six-month review hearing for Malia and disposition hearings for Samuel and Jeremiah. A social study prepared for the hearing indicated mother had 13 drug tests between January 29, 2016, and June 23, 2016. Mother had only three negative tests and two tests positive for methamphetamine. Mother had seven failures to appear for testing, which were presumptively positive, and one refusal to take a test for a social worker. Mother’s early visits with Malia were consistent but described by the social worker who supervised the visits to be “of limited quality.” Mother could not use parenting skills with Malia. During a joint visit with Malia and her brothers in late June 2016, Jeremiah refused to visit. Mother believed this was because he found the visits boring.

Mother enrolled in a parenting class in November 2015, but was dropped from the program. Mother reenrolled in parenting classes in early June 2016 and had attended 24 of 52 sessions with satisfactory participation. In late November 2016, mother enrolled in a substance abuse program and had attended five of eight scheduled sessions with a medium level of interest and an evaluation of satisfactory progress. To remain eligible for the program, however, mother needed to regularly submit to drug testing to complete the program in July 2016. The social worker concluded mother failed to make substantial progress in her case plan and there was not a reasonable probability mother would complete her case plan for Malia within six months.[4] The social worker concluded mother had made minimal progress toward alleviating or mitigating the causes for Malia’s placement outside the home and made minimally acceptable efforts to facilitate Malia’s return to her care.

Social studies were conducted for Samuel and Jeremiah for their disposition hearing. Mother had nine drug tests between July 11, 2016, and October 12, 2016. Two tests were negative and mother had five failures to appear that were presumptively positive, one specimen was unacceptable as human urine, and a positive test for methamphetamine on October 12, 2016. Mother had attended 39 of the 52 weekly parenting classes. Mother had poor attendance in the parenting class and was at risk of being dropped from the class if she had one more absence.

Due to poor progress in her substance abuse treatment program, mother was placed on a 30-day probationary period. If she complied with the treatment goals set forth in the 30-day contract, she would receive a certificate of completion for the substance abuse treatment with the outcome evaluation as unsatisfactory. Because of her positive test on October 12, 2016, mother was dropped from the substance abuse treatment program. Mother continued to abuse controlled substances and made no attempt to address or eliminate the reasons that led to the children being removed from her care.

Mother’s visitation with the children was sometimes inconsistent. During a visit on April 8, 2016, the social worker observed mother reading to Samuel and Jeremiah and noted she was attentive and affectionate. During a visit on April 13, 2016, mother brought snacks for the boys but Jeremiah would not listen to mother when she told him to stop running on a couch or stop fighting with Samuel. The boys hugged mother goodbye at the end of the visit. During a visit a week later, mother helped Malia with a change of diapers, though it took some time for her to complete the task, and interacted well with the boys, but the second half of the visit was chaotic. Jeremiah asked for his mother but kept screaming and crying. He threw Malia’s blankets and mother’s papers around the room. Mother talked to Jeremiah and he calmed down. The boys verbally said goodbye to mother as they were leaving. On April 20, 2016, Samuel told a social worker he wanted to go home with his mother, but he said he did feel safe in the foster home.

During supervised visits with the children in September 2016, mother had contact with both boys during a visit on the 20th, but Samuel played a game on mother’s cell phone and Jeremiah demanded most of the attention during the visit. During a visit on the 22d, all three children were present. Samuel threw Legos across the room. Mother appropriately redirected Samuel and the visit presented no other issues or concerns. Mother had another visit with all three children on the 29th. Samuel spent most of the visit playing on the phone. Jeremiah was rowdy and difficult. Mother was having difficulty getting Jeremiah to comply with her requests for him to settle down. The social worker had no other concerns regarding mother’s visit or interaction with the children. Mother visited all three children on October 18, 2016. Jeremiah was much calmer than during earlier visits. Samuel played games on a cell phone. Jeremiah and Malia played with building blocks.

The social worker noted mother continued to abuse controlled substances and made no attempted to eliminate or address the reasons that led to the children being removed from her care. Although mother was receiving reunification services, she was only going through the motions of attending classes without making any real change in her life. The social worker believed the children continued to be at risk in mother’s care due to her failure to make substantive progress in her court-ordered reunification services case plan. The social worker recommended no reunification services be given to mother for Samuel and Jeremiah.

In a supplemental social study report prepared by the department, the social worker noted mother was consistent in visiting Malia during the dependency. The social worker noted mother failed to complete substance abuse treatment, a 52-week parenting class, and to submit to unannounced urine drug tests on at least a monthly basis. The department recommended that family reunification services to mother be terminated.

At the joint six-month review hearing for Malia and the disposition hearing for Samuel and Jeremiah, mother testified she kept records of every time she tested and had never missed any test but the social worker put down that she failed to show up for the tests. Mother said the director of the rehabilitation classes did not drop her but the social worker said she missed her classes. Mother believed the social worker lied about her, which mother believed was evidenced by mother’s failure to get a different social worker assigned to her case.

By clear and convincing evidence, the juvenile court found Samuel and Jeremiah to be dependents of the court and removed them from mother’s custody. Pursuant to sections 361.5, subdivision (b)(10), (11), and (13), the court denied mother reunification services for her sons.

Section 366.26 Hearing

The juvenile court held a hearing on permanency planning and to terminate mother’s parental rights on February 27, 2017. Malia had been in her foster home since October 29, 2015. Samuel and Jeremiah had been in their foster home since April 22, 2016. Malia had no medical or developmental problems and because of her young age, she was likely to be adopted. Samuel had no developmental concerns. Jeremiah was born with a physical condition that did not require treatment, but he had temper tantrums and he suffered from enuresis. He is very active and loved sports. Both Samuel and Jeremiah have bonded with their current caregivers, who expressed their wish the boys remain in their home. Samuel and Jeremiah were, therefore, specifically adoptable.

Mother attended 80 percent of the possible supervised visits with Malia and 75 percent of the supervised visits available to her for her sons. Visits were usually described as going well without incident, or as visits without incident. The social worker found Malia did not look to her mother to meet her emotional needs. Although Malia’s current caregivers were not interested in adopting her, Malia’s paternal grandmother was approved under the Interstate Compact for the Placement of Children. The paternal grandmother was not interested in taking placement until parental rights were terminated and further expressed her wish for the children to remain together if possible. The benefits of adoption would outweigh any possible benefits from maintaining mother’s parental rights.

At the time of the social worker’s report, Jeremiah was seven years old and Samuel was nine years old. They had formed a relationship with mother prior to being placed into protective custody. During that time, however, neither child looked to mother to meet their daily emotional and physical needs as mother was not a parental figure on whom they could depend. Jeremiah wanted to continue to visit his mother. Samuel felt his mother constantly lied to him, and he would not be upset if he could no longer visit her. Jeremiah said he would be sad if he could never see his mother again.

Jeremiah and Samuel wanted to stay with their current caregivers. Samuel did not want to live with relatives, specifically an aunt and uncle who expressed interest in adoption. Jeremiah did not remember these relatives. Both children need ongoing parental stability, and the benefits of adoption outweigh the benefits of maintaining mother’s parental rights. The social worker recommended parental rights be terminated.

In a separate report, the social worker reiterated that Malia was adoptable due to her young age and the absence of any significant medical problems or developmental delays. Samuel and Jeremiah were specifically adoptable because their caretakers expressed their commitment to adoption. In assessing the degree of detriment in severing mother’s legal ties to the children, the social worker took into account the degree of attachment the children had with their parents as well as the children’s ages. The social worker noted all three children had a “moderate relationship” with their mother, but not so significant a relationship with her that they would suffer severe emotional trauma if mother’s parental rights were terminated.

At the hearing, mother testified that she regularly visited the children. Mother brings snacks and craft projects to do with the children during visits. Mother provides discipline when the children need it and said the children obeyed her. The children call her “Mom” and give her hugs and kisses during visits. Mother explained the children are excited to see her during visits. Malia falls asleep on mother and repeats everything mother says. Mother said Malia loves her.

Mother explained that Samuel reacts to pain or being upset by shutting down. She acknowledged Samuel told her he did not want to go home with her. Mother told him she would never stop fighting for him but explained he would not be coming home with her. Mother believed that given the choice, Samuel would want to come home with her. Due to an illness, there was period of time when Samuel did not live with mother. Mother said that Jeremiah had lived with her his whole life.

The juvenile court found Malia was generally adoptable; Samuel and Jeremiah were specifically adoptable. The court noted mother’s counsel argued that the beneficial relationship exception was raised on behalf of mother. The court noted the first prong of that exception was evidence of regular contact between the parent and the children. The court found that although mother did not have 100 percent visitation with the children, there was evidence to justify her absences because of illness or her children’s illnesses. The court found sufficient evidence of regular visitation. Under the second prong—a showing of benefit to each child—the juvenile court noted the parent had to establish the parent-child relationship outweighs the benefits of adoption. The court noted the parent had to occupy the role of parent, something beyond being a friendly visitor. There needed to be consistent, daily nurturing. Here, the evidence did not bear that out.

The court further found that when the boys lived with their mother there were periods of instability in her care. The court observed Jeremiah struggled emotionally, which he exhibited through tantrums and other physical manifestations. Samuel had expressed he would not be upset if he could no longer visit with mother. The court found the boys were in need of parental stability. The court found there was clear and convincing evidence the children are likely to be adopted. The court terminated mother’s parental rights to all three children.[5]

DISCUSSION

Appellate Review of Beneficial Relationship Exception

Mother contends the juvenile court erred in failing to apply the beneficial parent-child relationship exception to the statutory preference for adoption. We find no error in the juvenile court’s ruling.

Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. The burden is on the parent to prove changed circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent’s burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences that uphold 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, 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 trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)

Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court’s judgment. (See ibid.)

For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so 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., supra, 27 Cal.App.4th at p. 575.)

Interactions between the 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, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. 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., supra, 27 Cal.App.4th at p. 575.)

A substantial evidence challenge to the juvenile court’s failure to find the beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of such relationships. Such a challenge amounts to a contention the undisputed facts lead to only one conclusion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re I.W. (2009) 180 Cal.App.4th 1517, 1528-1529.)

Throughout the proceedings, social workers noted mother failed to complete services and continued to test positive for narcotics or failed to take tests. Mother took a parenting course but missed many classes and apparently failed to complete the full 52-week program. Mother’s visits with her children were generally positive, though she had difficulty at times controlling Jeremiah or engaging with Samuel, who often played games on her phone rather than interact with her. Mother never had a strong bond with Malia. Mother clearly had a relationship with all three children and showed love for them but failed to demonstrate that she acted as a parental model. The boys were old enough to state their preference to stay with mother, but neither Samuel nor Jeremiah did so. Samuel wanted to stay with his current caregivers. Jeremiah indicated he would miss having visits with mother. There was no indication that mother’s sons or Malia would experience detriment from not maintaining parent-child ties to mother. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)

The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child’s life in the parent’s custody, the positive or negative effect of interaction between the parent and child, and the child’s particular needs. The fact the visitations were still supervised and had not progressed to overnight stays prior to the termination of reunification services is important because it shows mother was not yet prepared to care for and nurture the children full time. Mother bore the burden of showing more than loving contact and pleasant visits. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)

Although day-to-day contact is not necessarily required, it is typical. 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 the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Mother needed to demonstrate she occupied a parental role in her children’s lives resulting in a significant, positive, emotional attachment from child to parent. Here, there was little or no evidence mother occupied this crucial role in her children’s lives. (In re L.Y.L., supra, 101 Cal.App.4th at p. 954.) Mother failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) There was insufficient evidence from mother demonstrating that the benefits of maintaining the parent-child relationship would outweigh the benefits to the children of adoption. The juvenile court did not err in finding the parent-child benefit exception to the preference for adoption did not apply to these children

DISPOSITION

The findings and orders of the juvenile court are affirmed.