Filed 5/23/18 In re S.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re S.H., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,

Plaintiff and Respondent,

v.

L.H.,

Defendant and Appellant.


E069708

(Super.Ct.No. RIJ114358)

OPINION


APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson, Judge. Affirmed.
William Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
L.H. (mother) appeals the juvenile court’s order terminating her parental rights over her daughter S.H., who was declared a dependent shortly after her birth and was just shy of her third birthday at the time of the order. Mother argues the juvenile court erred when it concluded the parental benefit exception to adoption did not apply. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) We disagree and affirm.
I
FACTUAL BACKGROUND
Mother has a history with child protective services. In 2007, she tested positive for amphetamine and marijuana when she gave birth to S.H.’s older sister, and eventually the juvenile court terminated her parental rights over that child. In 2014, the Riverside County Department of Public Social Services (the department) received reports that mother and S.H.’s father were using drugs, but the department ultimately determined the allegations were unfounded. Mother also has a criminal record which includes drug-related convictions.
S.H. came to the department’s attention in December 2014, when mother tested positive for marijuana and benzodiazepine at the child’s birth. The department subsequently filed a dependency petition on behalf of S.H. and her four-year-old brother P.H. During an interview, mother told the social worker she had smoked marijuana and taken half a Xanax just before giving birth to S.H. because she had been having trouble sleeping. She admitted she had a history of substance abuse and had “experimented with every illegal substance” except heroin. The department recommended the court give her family maintenance services because she had been forthcoming about her problems with substance abuse. In April 2015, the court followed that recommendation, allowing S.H. and P.H. to remain in mother’s care while she participated in services, and denied services to S.H.’s father who was incarcerated. (S.H. and P.H. have different fathers. P.H. is not a subject of this appeal and S.H.’s father is not a party.) Mother’s case plan required her to participate in a substance abuse program.
Mother’s substance abuse counselor reported that the same day mother received her certificate for completing an outpatient substance abuse program to address her addiction to marijuana, she obtained a medical marijuana card and stopped participating in her other services (individual counseling sessions and “Aftercare” classes). Mother’s behavior concerned the counselor because she never mentioned during her program sessions having any issues that would require marijuana for medical purposes.
A couple months later, in June 2015, mother began avoiding the department and, despite various efforts, they could not locate her or the children. By that point, she had stopped participating in all services. The social worker learned that in early June she had missed one drug test and had walked out of another after being asked about the accuracy of her urine sample. Suspecting her of absconding, the department filed a supplemental petition seeking to have the children detained and placed in foster care. The juvenile court issued protective custody warrants for the children and a bench warrant for mother with bail set at $2 million. (§ 339.)
The department continued its efforts to locate mother and her children, to no avail. Mother finally rematerialized in October 2016 when she was pulled over for a traffic stop and arrested on her outstanding warrant. S.H. was in the car with her at the time, but P.H. was not. The department took S.H. into protective custody but could not find P.H. Mother told the social worker that his father (against whom she had obtained a restraining order in 2014) had “kidnapped” him from her sometime around September 2016. She said she didn’t file a police report because she feared the department would “hold it against [her]” and take S.H. away. She explained she had been evading the department because a staff member had told her they could take her children away if she had a positive marijuana test.
The department placed S.H. (then not quite two years old) with her paternal grandparents and she thrived in their home. She had a healthy appetite and could sleep through the night. After learning mother had not taken S.H. to the doctor since before she absconded, the court expressed concern the infant was behind in her immunizations and ordered a full medical examination. The court authorized supervised visits for mother twice a week.
In June 2017, the court terminated mother’s services, reduced her visits to once a week, and set a permanency planning hearing for S.H. The department recommended the court terminate mother’s parental rights and free up the child for adoption. The paternal grandparents were meeting S.H.’s medical, educational, and emotional needs, and were committed to giving her a permanent and loving home. They were both 63 years old and in good health. They had been married for 45 years and had raised four children together. The grandmother worked at the University of California at Riverside and the grandfather had recently retired from a long career as a machinist. S.H. was bonded to her grandparents. She called them “mama” and “papa” and “looks for them when she enters the room and is quick to get into their laps.” The grandparents said they were willing to allow contact with S.H.’s biological parents after adoption. The department submitted a favorable preliminary adoption assessment for the grandparents, noting that although S.H. was too young to understand the adoption process, she was “very attached to both her grandparents as well as to other members of [their] family.”
Mother visited S.H. consistently during this period and behaved appropriately. The visits took place at the department or a McDonald’s and lasted an hour. Supervising staff observed mother was attentive to S.H.’s needs and engaged in activities like reading, coloring, and playing with toys. S.H. was bonded with mother, excited to see her, and called her “mommy.”
The court held the permanency planning hearing in November 2017. Mother argued the court should not terminate her parental rights because the parental benefit exception applied. She testified she considered S.H. her “best friend,” and during visits they would take pictures, play video games, and read. The social worker also testified. She agreed with mother’s counsel that mother was always appropriate during visits and S.H. enjoyed visiting with her and called her “mommy.” According to her notes, there were a few occasions when S.H. cried at the end of the visit because she did not want to leave.
Counsel for S.H. argued the parental benefit exception did not apply. She argued mother and S.H. share a “friend relationship,” not a mother-daughter relationship. Counsel for the department agreed and argued mother had not established how maintaining the parent-child relationship would be more beneficial to S.H. than the permanency and stability she would receive from being adopted by her grandparents. The court found the exception did not apply and terminated mother’s parental rights, explaining, “there is a relationship with mother . . . [¶] But the issue is does that outweigh the benefit of adoption for S.L., and I can’t find that it does.”
II
DISCUSSION
Mother argues the court’s failure to apply the parental benefit exception to S.H. was error. We disagree.
The Legislature prefers adoption where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) “[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. (2000) 78 Cal.App.4th 1339, 1350.)
The parental benefit exception “applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also § 366.26, subd. (c)(1)(B)(i).) California courts have interpreted this exception to apply to only those parent-child relationships the severance of which “would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must demonstrate 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.” (Ibid., italics added.) Maintaining frequent and positive contact with the child is not enough—the parent must also “stand in a parental role to the child.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
“[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.” (In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court’s determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides “a ‘compelling reason’ for finding detriment to the child.” (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Here, it is undisputed mother had consistent and positive visits with S.H.—the issue is whether she occupied a parental role significant enough to outweigh the benefits of adoption. On this point we have no trouble affirming the trial court’s ruling. S.H. was an infant for the brief period she spent in mother’s care, and mother did not behave like a responsible parent during that time. After flouting the marijuana addiction services required by her case plan, she then managed to evade the department for several months. More disturbing, as a result of that evasion, she neglected (or made the affirmative decision not) to take her infant daughter to the doctor for regular examinations and immunizations and took no actions to ensure her son’s safety when his biological father—against whom she had a restraining order—took the child from her. This is not the behavior of someone who occupies a positive parental role in a child’s life.
In addition, while we recognize mother loves S.H. very much and shares an obvious bond with her daughter, nothing in the record suggests S.H. would be greatly emotionally harmed if adopted. Mother points out that S.H. called her “mommy” and didn’t want the visits to end, but S.H. also referred to her grandparents as “mama” and “papa” and the record indicates she viewed them as her source of comfort and stability, not mother. Mother testified she considers S.H. her “best friend,” and, like friends, they had fun coloring and playing games together during visits. S.H. enjoyed spending an hour a week with mother, but there is no indication she was distressed about not seeing mother between visits. By all accounts, she was thriving in her grandparents’ home.
Mother argues her case is similar to In re Brandon C. (1999) 71 Cal.App.4th 1530, because there the children also cried when visits ended. The comparison is inapt. In that case, the children would cry for “long periods” at the end of visits—which occurred consistently over a period of three years—and “would resist going to bed after visits with mother.” (Id. at p. 1535.) In addition, the prospective adoptive parent advocated against terminating the parental relationship and was willing to become the children’s legal guardian due to the strength of the parent-child bond. (Id. at p. 1533.) Here, S.H. cried at the end of a few visits, but there was no indication she acted distressed once back in her grandparents care. Without more evidence of S.H.’s behavior, the juvenile court could just as reasonably infer S.H. cried at having to stop playing fun games as it could infer that leaving mother was the reason for her tears.
Mother’s reliance on In re S.B. (2008) 164 Cal.App.4th 289 is similarly unhelpful. There, like here, the father maintained consistent, positive visitation with his daughter, so the sole issue was whether he occupied a parental role in her life. In concluding that he did, the appellate court relied on circumstances that simply are not present in this case. Unlike mother, the father in In re S.B. had been his daughter’s primary caregiver for three years, which was well over half of her life. (Id. at pp. 293, 298.) In addition, a bonding study revealed a “fairly strong” bond between the father and his daughter—one that was reflected during visits when she would nestle into his neck and whisper that she loved him and missed him and wanted to live with him. (Id. at pp. 295, 298.) Finally, the father had complied with “every aspect” of his case plan, “immediately” obtaining and maintaining sobriety and seeking medical and psychological services as soon as his daughter was removed from his care. (Id. at p. 298.) Here, not only was S.H. too young to express opinions about where she wanted to live, but, more importantly, mother’s efforts to comply with her case plan fall drastically short of the father’s in In re S.B. And it is precisely those efforts—to overcome the issues that led to the dependency—that demonstrate a biological parent is ready and willing to assume a parental role.
Our courts have emphasized time and again that friendly—even loving—relationships are not enough. (See e.g., In re Beatrice M., supra, 29 Cal.App.4th at pp. 1419-1420 [where child “sees a lot of [mother] and loves her,” exception did not apply because the mother stood in a role akin to “a close aunt,” not a mother]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1348 [“the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent”].) As In re S.B. illustrates, the parent-child bond must be coupled with an effort on the parent’s part to play a significant role in the child’s life and a desire on the child’s part to not be separated from the parent. At best, mother established she had pleasant supervised visits with a young child who has spent one third of her life outside mother’s care. Unfortunately, that is insufficient to demonstrate the type of parent-child relationship strong enough to outweigh the benefits of adoption. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 [“parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits”].)
III
DISPOSITION
We affirm the order terminating mother’s parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.

We concur:


RAMIREZ
P. J.


MILLER
J.