Filed 9/15/17 In re M.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, for Defendant and Appellant Mary S.

Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant Paul H.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent.

Mary S. (Mother) and Paul H. (Father) appeal from orders terminating parental rights to their daughter M.H. under Welfare and Institutions Code[1] section 366.26. Mother contends the evidence does not support the juvenile court's finding that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply. She asserts that, as a matter of law, a reasonable trier of fact could not have reached the conclusion that the beneficial relationship exception did not apply. Father joins in her arguments. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2105, while conducting a records check at the parents' residence, the police discovered that Mother had an arrest warrant and Father had a valid Fourth Amendment waiver on file. A search of the home revealed various drug paraphernalia and baggies containing a crystalline substance, all within reach of two-year old M.H. A detective with the police child abuse unit concluded that the home was " 'definitely not safe for the child.' " The police arrested Father for drug possession and Mother for two arrest warrants.

A few days later, a social worker with the San Diego County Health and Human Services Agency (the Agency) visited the home. Mother indicated that she had been feeling overwhelmed lately, which had led to her relapse on methamphetamine. She also reported morphine use for the previous 11 years to manage pain caused by two cracked vertebrae and stated that she currently used morphine without a prescription. Mother obtained the morphine from a friend of Father and did not know the milligram amount of the pills she was taking. She did not believe her use of morphine affected her ability to safely and adequately parent M.H. Mother denied any substance abuse issues and refused referrals for drug treatment.

The Agency filed a dependency petition on M.H.'s behalf alleging she came within the juvenile court's jurisdiction under subdivision (b) of section 300 because the parents had failed to provide her a safe home as evidenced by the drugs and paraphernalia found by the police. The petition also alleged that both parents had substance abuse histories and Mother had admitted to using morphine recently. At the detention hearing, the court found the Agency had made a prima facie showing M.H. was described by section 300 and detained her in foster care.

At the jurisdiction/disposition hearing in January 2016, the court found the allegations in the dependency petition to be true, declared M.H. a dependent, and placed her in foster care. The court ordered Mother to participate in reunification services consisting of an outpatient drug treatment program, parenting classes, and individual counseling. At the six-month review hearing in August 2016, the court found that Mother made minimal progress toward alleviating the causes necessitating the placement. Father did not participate in services and had made no progress. The court terminated reunification services and scheduled a section 366.26 hearing in order to choose a permanent plan for M.H.

At the section 366.26 hearing in February 2017 the court found M.H. adoptable and that none of the exceptions to the termination of parental rights applied. The court terminated parental rights. The parents timely filed notices of appeal, which we consolidated. Mother, acting in propria persona, filed a separate petition for writ of habeas corpus and for combination writ of mandate or prohibition. We separately addressed the petition.

DISCUSSION

I. GENERAL LEGAL PRINCIPLES

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the juvenile court finds a minor is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the minor under one of the specified exceptions. (§ 366.26, subd. (c)(1).) An exception exists where 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).) The beneficial relationship exception applies when the juvenile court finds "a compelling reason for determining that termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) due to the circumstance that "[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).)

A beneficial relationship is one that 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 adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) The parent must show that the parent-child relationship is such that the child will be greatly harmed by the termination of parental rights, so that the presumption in favor of adoption is overcome. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853 (Brittany C.).) Variables to consider in evaluating the benefits of a parental relationship are the age of the child, the amount of time spent in the parent's care, whether the interactions are positive or negative, and whether the child has particular needs that the parent can best satisfy. (In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.).)

"The parent has the burden of proving that termination would be detrimental to the child under section 366.26, subdivision (c)(1)(A). [Citations.] The juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. . . . Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it 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. (2000) 78 Cal.App.4th 1339, 1350.)

"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 (Bailey J.).) We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)

II. ANALYSIS

As a preliminary matter, Mother argues that the plain language of section 366.26, subdivision (c)(1)(B)(i) requires a parent to prove two elements: (1) regular visitation; and (2) a beneficial relationship. Establishing these two elements constitutes a "compelling reason" for determining that terminating parental rights would be detrimental, as stated in section 366.26, subdivision (c)(1)(B). She contends that Bailey J. and its progeny incorrectly interpret the statute by requiring a parent to prove a third element beyond regular visitation and beneficial relationship; i.e., that there is a "compelling reason" not to terminate parental rights. Accordingly, she asserts we should consider her arguments solely under the substantial evidence standard of review. We disagree.

Under the statutory language, although the juvenile court may only apply the beneficial relationship exception if it finds that (1) the parents maintained regular visitation and (2) the child would benefit from continuing the relationship, it must also exercise its discretion to determine if "a compelling reason" exists to find termination would be detrimental to the child, as part of applying the statutory criteria. (§ 366.26, subd. (c)(1)(B).)[2] Characterizing the beneficial relationship exception as requiring a "compelling reason for finding that termination would be detrimental to the child," simply refers to the balancing analysis the juvenile court must apply to determine whether the parent-child relationship is of sufficient benefit to overcome the presumption favoring adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother acknowledges the applicability of the Autumn H. balancing test for assessing whether the beneficial relationship exception applies. In any event, our conclusion is the same under either standard.

Mother does not dispute that M.H. is adoptable. The record shows that M.H. is generally adoptable with 58 San Diego County adoptive families with approved home studies who are willing to adopt a child matching M.H.'s characteristics. M.H. is also specifically adoptable as her current caregivers want to adopt her. The Agency concedes that Mother maintained regular visitation with M.H. We agree as the record shows Mother consistently participated in supervised visitation with M.H. Accordingly, we focus on the second prong and examine whether M.H. would benefit from continuing her relationship with Mother. (§ 366.26, subd. (c)(1)(B)(i).)

On this prong the Agency does not dispute that Mother and M.H. shared a parent-child relationship. It is undisputed that Mother and M.H. share a loving relationship and that Mother acted appropriately during her supervised visitation. The ultimate question we must decide is whether Mother overcame the presumption in favor of adoption by showing her relationship with her daughter is such that M.H. will be greatly harmed by the termination of parental rights. (Brittany C., supra, 76 Cal.App.4th at pp. 853.) After reviewing the record, we conclude Mother did not meet her burden of showing by a preponderance of the evidence that severing the parental relationship would result in great harm to M.H. Mother has not yet addressed her substance abuse issues. The Agency removed M.H. because the parents left drugs and drug paraphernalia within M.H.'s reach. When the Agency removed M.H. from Mother's care, Mother admitted that she relapsed on methamphetamine because she felt "overwhelmed." Mother also admitted morphine use the previous 11 years for pain management and that she currently used morphine without a prescription. Nonetheless, Mother denied any substance abuse issues and refused referrals for drug treatment. It appears that Mother never drug tested, in part due to past abuse that had occurred in a bathroom. The court ordered hair follicle drug testing, with Mother's consent, in August 2016; however, there is nothing in the record showing that Mother consented and the testing occurred.

M.H. was about 25 months old when the Agency removed her from Mother's care. At the time of the section 366.26 hearing, M.H. had not lived with Mother for about 15 months. M.H. has been living with her prospective adoptive parents almost the entire 15-month period that she has been out of Mother's care. M.H. is too young to understand the concept of a biological parent. (Angel B., supra, 97 Cal.App.4th at p. 467 [two-year old child was "very young, too young to understand the concept of a biological parent"].) By the time of the July 2016 status review report, M.H. shared a bond with both Mother and her foster parents. M.H. went to her foster parents easily and gave them hugs without prompting. M.H. also ran to see Mother during visits and shared hugs. While M.H. referred to Mother as "Mommy" she also called the foster mother "Mommy" and once referred to the social worker as "Mommy."

Importantly, the record does not show that M.H. would be harmed if her visits with Mother ended. Early in the dependency proceedings M.H. appeared upset to leave visits. Later in the proceedings M.H. "immediately" settled back into her home routine after her visits. M.H. appeared to be comfortable and happy in the caregiver's home with constant displays of affection and closeness. The social worker noted that M.H. had begun to establish stability with her foster parents who understood the responsibilities of adoption, were motivated to adopt M.H. and committed to providing her a stable, permanent, and safe home.

In contrast, the social worker opined that Mother appeared to deny her drug history and still had not gained insight as to why she should maintain sobriety. This concerned the social worker because the responsibility of caring for a child is often stressful and could pose as a trigger to Mother's substance abuse. The social worker noted that at age three M.H. was "at a crucial stage in her development" where her "brain [was] continually developing at a rapid rate" and "during this crucial period . . . the foundation of a child's overall development is created" including acquiring "knowledge and a sense of self, their communication style, and how they interact with the world." The social worker expressed concern that if parental rights were not terminated, M.H. "may continue to remain in an unstable state which may cause her confusion and potentially impact her life in a negative way."

The juvenile court was entitled to credit the assessments and conclusions of the social workers. (In re Casey D. (1999) 70 Cal App.4th 38, 53.) Moreover, "delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (Id. at p. 47.) Mother's citation to In re Brandon C. (1999) 71 Cal.App.4th 1530 does not assist her. In that case, the juvenile court found that the children would benefit from continuing their relationship with their mother and ordered a legal guardianship instead of adoption. (Id. at p. 1533.) The appellate court found, under the circumstances presented, sufficient evidence supported the juvenile court's decision to order guardianship. (Id. at p. 1538.) The issue here is whether substantial evidence supported the juvenile court's contrary finding that the beneficial relationship did not apply. The Agency's reports provided such evidence. The record does not support a conclusion that this is an extraordinary case where preservation of the parent's rights should prevail over the Legislature's preference for adoptive placement. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) Given the lack of evidence that M.H. would be harmed if the parent-child relationship is severed, we conclude the juvenile court did not err in determining that the beneficial relationship exception to adoption did not apply. Because the evidence does not support reversal of the termination of Mother's parental rights, the Father's rights remain terminated.

DISPOSITION

The orders are affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.