Filed 11/13/18 In re M.V. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Frank J. Menetrez, Judge. Affirmed.

Valerie N. Lankford, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, Acting Assistant County Counsel, and Veronica Randazzo, Deputy County Counsel, for Plaintiff and Respondent.

___________________________

Mother P.V. appeals the juvenile court’s termination of parental rights over her six young children. She contends the court should have applied the beneficial parent-child relationship exception to the preference for adoption found in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B).[1] We find no abuse of discretion and affirm.

BACKGROUND

By the time of the termination hearing in this case, mother had six children with father L.A. (who is not a party to this appeal), all of whom were subject to the jurisdiction of the juvenile court: M.V. (born 2009); C.A. (born 2012); K.A. (born 2013); J.A. (born 2014); K.V. (born 2016); and F.A. (born 2017).

1. Detention of the Five Oldest Children

Mother’s five oldest children were the subjects of a dependency petition filed by the Los Angeles County Department of Children and Family Services (DCFS) on March 28, 2016, alleging mother used methamphetamine, father used marijuana, and the parents engaged in domestic violence in the presence of the oldest child M.V.[2] The petition was based on a referral after K.V. was born premature and mother tested positive for methamphetamine at his birth. She denied using drugs and admitted she received no prenatal care because she did not know she was pregnant until one or two weeks before the birth. She claimed she had support from maternal grandmother and grandfather, who lived in the same apartment complex. She denied any domestic violence with father, who did not live in the home with the children.

A social worker contacted the family. The children appeared well cared for. The maternal grandparents actively supported mother and the children. M.V. reported she preferred staying with the maternal grandparents because her parents fight and constantly yell at her. She admitted seeing father hit mother. She also saw father smoking what she described as marijuana.

Maternal grandmother described going to mother’s apartment and seeing “father having mother on the floor.” She also observed father using marijuana. She said she and maternal grandfather were ready to take care of the children. Maternal grandfather also reported father used marijuana and the parents constantly argued in front of the children.

Mother continued to deny drug use and agreed to submit to drug testing. She tested negative for drugs on March 11, 2016.

The juvenile court detained the children on March 28, 2016, and released them to mother on the conditions that M.V. remain with maternal grandmother; mother reside with maternal grandmother; and K.V. reside with maternal grandmother once released from the hospital. Father was given monitored visitation outside maternal grandmother’s home and mother could not serve as monitor. Mother was ordered to submit to weekly on-demand drug testing.

In the jurisdiction/disposition report, M.V. and maternal grandmother both reported seeing father choke mother. M.V. said she did not want to live with her parents because they fought too much; she wanted to live with maternal grandmother. While mother continued to deny all drug-use and domestic violence allegations, she failed to show up for four drug tests between March and May 2016. Mother was provided referrals for parenting and other programs, but she refused to start the programs unless they were court-ordered.

Newborn K.V. was ready to be discharged from the hospital on April 18, 2016, but by the time mother was interviewed on May 3, 2016, she had not picked him up or gotten training on the oxygen machine he needed. Instead, maternal grandmother had come to the hospital and was trained on the machine. The social worker reported having difficulty contacting mother and reported that mother had failed to call her to start services or follow through with the children’s mental health referral.

On the day scheduled for the adjudication hearing, the court continued the hearing but detained the children from mother because she failed to drug test. The children were permitted to remain in maternal grandmother’s home so long as mother moved out.

In preparation for the adjudication hearing, DCFS informed the court that the parents had not made themselves available to DCFS. Maternal grandmother reported that mother visited the children in the mornings to help get M.V. ready for school, and mother returned in the afternoon to assist in feeding the children. Maternal grandmother also reported mother failed to take M.V. to school, and M.V. fell behind academically. Mother missed five more drug tests.

At the adjudication hearing held on September 19, 2016, the court sustained amended allegations that mother was a current methamphetamine user and the parents engaged in a violent altercation in the presence of M.V. The court dismissed all other allegations. The court ordered mother and father to participate in family reunification services. Mother was ordered to participate in a full drug program with aftercare, weekly drug testing, a domestic violence support group, and a parenting class. She was given monitored visitation.

2. Birth and Detention of Youngest Child F.A.

Mother’s sixth child F.A. was born early in 2017, and both he and mother tested positive for amphetamines at his birth. On January 9, 2017, DCFS filed a petition over F.A. based on the allegations of mother’s drug use as well as on the domestic violence allegations sustained in the siblings’ case. The court detained F.A. in foster care and ordered monitored visitation.

3. Review Proceedings

In the jurisdiction/disposition report for F.A. dated March 20, 2017, DCFS reported that parents had not visited F.A. or inquired about him since his birth or made themselves available for interviews.

In the six-month report for the five oldest children also dated March 20, 2017, DCFS reported that M.V. and K.V. lived with maternal grandparents and the other three children lived with an extended family member in mother’s apartment. Maternal grandmother reported that mother visited daily to assist with the children. But DCFS reported mother had not participated in any court-ordered programs or drug testing. When the social worker asked her if she was pregnant during an October 2016 visit, mother said no (even though she must have been pregnant with F.A., who was born three months later). According to the social worker, mother seemed attached only to C.A. and did not have any “maternal kindness” toward the children. She did not pick up K.V. from his crib and did not act very “lovable” toward M.V., K.A., or J.A. M.V. told the social worker she wanted to stay with her grandparents and was happy with them.

It was reported that mother did not participate in M.V.’s Individualized Education Plan meeting, but maternal grandmother did. The school was requesting maternal grandmother be granted education rights. The child C.A. was four years old and still being potty trained because mother had not trained her.

At the March 20, 2017 combined jurisdiction hearing for J.A. and six-month review hearing for the oldest children, the parents were excused from the courtroom due to an outburst during the hearing. The court sustained the allegations in the petition involving F.A., removed him from the parents, and granted parents reunification services. For mother, the court ordered a full drug program, weekly drug testing, a domestic violence program, and a parenting class, as well as monitored visitation. The court granted maternal grandmother co-educational rights for the five oldest children.

A contested six-month review hearing for the five oldest children was set for April 26, 2017. Before that hearing, DCFS reported that mother failed to comply with any of the court-ordered programs because she felt anxious around groups of people. She also continued to fail to drug test, claiming she did not know she had to test. Father also failed to comply with his court-ordered programs. It was reported that mother would go to maternal grandmother’s home in the evenings to help with the children, but not on a daily basis. At the hearing, the court found the parents had not been given reasonable services and ordered family reunification services be extended.

For the oldest children’s twelve-month review hearing and F.A.’s six-month review hearing, DCFS reported that the five oldest children were living with maternal grandparents. F.A. was in the same foster home since birth. Mother and father lived together and failed to participate in any court-ordered services, although both said they wanted their children back. Mother failed to drug test, claiming she did not drug test or participate in her parenting and drug programs because of anxiety. A Multidisciplinary Assessment Team (MAT) meeting was held for F.A., and the assessor was unable to contact the parents and they did not participate.

Maternal grandmother reported that mother visited the five older children daily in the morning and in the evening. According to maternal grandmother, mother “reads to the children and engages with all of them.” She also helped with bathing, feeding, and dressing the children, and she played with them. Mother and the children appeared happy to see one another. M.V. reported she enjoyed mother’s visits. Mother reported, “I love visiting with my kids, I love playing, hugging and kissing them and telling them how much I love them and miss them.”

On July 28, 2017, mother reported she had not visited F.A. since his placement with caregivers in January 2017, six months earlier. F.A.’s caregivers also reported no contact with family members. The parents first visited F.A. on August 5, 2017—seven months after his birth—at the maternal grandparents’ home. On September 18, 2017, DCFS informed the court that mother had not enrolled in any programs or drug tested. Mother told the social worker that she was afraid the drug tests would be positive due to her anxiety medication.

The court eventually terminated family reunification services as to all the children because parents had made minimal or no progress in alleviating the issues that brought the children within the jurisdiction of the court. By that point, F.A. was residing with maternal grandparents. The court set the matters for permanency planning hearings pursuant to section 366.26.

4. Post-Termination Proceedings

Maternal grandparents wanted to adopt all the children. DCFS recommended adoption by the maternal grandparents as the permanent plan.

DCFS noted that mother had maintained consistent and frequent visitation with the children, including F.A. since he was placed with the maternal grandparents. She visited daily in the morning and evening. She read to the children, cleaned their bedrooms, helped with making bottles, did chores, and assisted in the children’s care. She spends holidays and the children’s birthdays with them.

While DCFS believed mother established a “familial emotional connection” with the children, it viewed her role as more of a sibling than a parent. The maternal grandparents reported mother was appropriate with the children but lacked a maternal instinct. She helped with the children but took less of a mother-child bonding relationship. When finished with visits, she was anxious to leave, and the children did not show signs of attachment, such as crying or clinging to mother as she left. The social worker observed on a visit that the children would look to the maternal grandparents for comfort, soothing, and security. The social worker noted that mother appeared “very lax and did not initiate a more parental role with the children but rather appears to relate to the children as an adult sibling to them who is expected to do chores around the home.”

DCFS submitted mental health records for three of the children, demonstrating that the maternal grandparents were participating in their mental health services.

DCFS further reported M.V. and C.A. wanted to remain with the maternal grandparents. While the maternal grandparents wanted to maintain the contact between mother and the children, they did not want to sign a post-adoption contract until they assessed the ongoing contact among the family.

C.A. reported seeing mother daily and playing games. She was happy when mother visited and sad when it was time for her to leave. K.A. reported that she saw mother every day. She was a “little” happy to see her and sad when it was time for her to leave. M.V. reported having fun with mother riding bikes and playing.

A social worker met with the family. Maternal grandmother reported that the kids would call the maternal grandparents “mom” and “dad,” while they called mother and father “mami” and “papi.” When mother arrived, K.V. ran to her. The children appeared content with mother. When mother left, J.A. looked as if he would cry, but maternal grandmother consoled him and he was fine.

DCFS believed mother had a bond with the children, but it believed adoption by the maternal grandparents was in the best interests of the children. It noted that the maternal grandparents were open to allowing mother to maintain contact with the children.

The court held the section 366.26 hearing over three days. Mother testified she saw the children daily. In the morning, she would help get them ready for school, feed them, and get them dressed. In the afternoon, she would help M.V. with her homework. She would leave the home and return in the evening to help get the children ready for bed, including bathing the two youngest children and helping the children with pajamas. She recently attended dentist appointments with the four oldest children and a doctor’s appointment for C.A. Father testified he visited the children three to four times a week.

At the hearing, mother and father argued that the court should not terminate their parental rights, relying on the beneficial parent-child relationship exception in section 366.26, subdivision (c)(1)(B). The court found that the parents maintained regular visitation, noting that the issue was “essentially uncontested” and was the “first step.” But it went on to conclude that the benefits of maintaining the parent-child bond did not outweigh the children’s benefit from adoption. The court noted that the parents never moved beyond monitored visitation and, “while these visits may have been pleasant” for the children and the parents, “there was no evidence that termination of the parent-child relationship would be detrimental or . . . that the relationship conferred benefits to the child more significant than permanency and stability offered by adoption.”

Analogizing to In re Noah G. (2016) 247 Cal.App.4th 1292 (Noah G.), the court explained that “[n]either parent has ever done anything on their case plan or made any progress in addressing these issues, and that is why the visits have remained monitored for both of them throughout. So I think that under Noah G. that is just about dispositive for this case. [¶] In addition, . . . [F.A. and K.V.] have never lived with the mother and father, and for the older—oldest two children, the evidence is that they want to remain in the grandparents’ care.” The court also cited the fact that the children called the maternal grandparents “mom” and “dad,” but called mother and father “mami” and “papi.”

In the end, the court believed that “when you put it all together, it is very difficult to see how there is a parental role in the meaning of the case law that would—whose benefits outweigh the benefits the children would derive from permanency through adoption. [¶] I agree. There is no question, I do agree that visitation is there, exists, and I agree that there is a bond, and that the children derive some benefit from it. I think that the evidence supports all of that, but I think . . . there isn’t evidence here to show a benefit that would outweigh the benefit of the permanency through adoption, so the exception does not apply.”

The court terminated parental rights. Mother appealed.

DISCUSSION

Upon termination of parental rights pursuant to section 366.26, adoption is the preferred plan when there is no probability of reunification with a parent. (In re K.P. (2012) 203 Cal.App.4th 614, 620 (K.P.); In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Section 366.26 creates an exception to the legislative preference for adoption if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child” because “[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); see K.P., at p. 621.) The parent bears the burden to demonstrate this exception applies. (Noah G., supra, 247 Cal.App.4th at p. 1300.)

“The ‘benefit’ prong of the exception requires the parent to prove his or her relationship with the child ‘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.’ ” (K.P., supra, 203 Cal.App.4th at p. 621, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Frequent and loving contact with the child is not enough to establish a beneficial parental relationship. (Noah G., supra, 247 Cal.App.4th at p. 1300.) Thus, “[n]o matter how loving and frequent the contact, and notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must show that they occupy “a parental role” in the child’s life.’ [Citations.] The relationship that gives rise to this exception to the statutory preference for adoption ‘characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.’ [Citation.] Moreover, ‘ecause 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.’ ” (K.P., supra, at p. 621.)

[b]DISPOSITION

The order is affirmed.

BIGELOW, P.J.

We concur:

RUBIN, J.

GRIMES, J.