Filed 9/28/17 In re Taylor C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEALS from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant Todd L.

Emily Uhre, under appointment by the Court of Appeal, for Defendant and Appellant Candice C.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.

Todd L. and Candice C. appeal orders terminating their parental rights in the juvenile dependency case of their minor daughters Taylor C., T.L., and Tatum L. They contend the juvenile court erred by determining that the beneficial parent-child relationship and sibling relationship exceptions to adoption did not apply to T.L. and Tatum. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i) & (v).)[1] We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

In February 2015, the San Diego County Health and Human Services Agency (the Agency) petitioned the juvenile court under section 300, subdivisions (b) and (g) on behalf of 14-year-old Taylor, eight-year-old T.L., and four-year-old Tatum. The Agency alleged that the minors resided in an unsafe home where dangerous drugs and other objects were accessible. Police entered the home to execute a search warrant and found methamphetamine in a clear plastic bag, numerous prescription drugs, and hypodermic needles, all accessible to the minors. Taylor reported smelling marijuana in the home, and the minors were left for days without adult supervision. The Agency concluded that the minors had suffered, or were at substantial risk of suffering, serious physical harm or illness as a result of these dangers. It further alleged that the parents were incarcerated and unable to arrange appropriate care for the minors, thereby requiring juvenile court intervention.

The juvenile court found the Agency had made an adequate showing that the minors were persons described by section 300, subdivisions (b) and (g), and it ordered that they be detained in out-of-home care. At the minors' jurisdiction and disposition hearing, the court sustained the allegations of the petition under section 300, subdivision (b). It dismissed the Agency's allegations under section 300, subdivision (g) because the parents were no longer incarcerated. The court removed the minors from the parents' custody based on concerns that the parents abused prescription drugs, including opioid pain medication, and were unable to provide the minors with a safe home or adequately supervise them. T.L. and Tatum were placed in the home of their paternal grandparents. After residing for a time with the grandparents as well, Taylor was placed in the home of her maternal aunt and uncle.

The court directed that the parents be provided with reunification services. Supervised visitation with T.L. and Tatum was authorized. As to Taylor, the court found that visitation with Todd would be detrimental, but it allowed brief supervised visitation between Taylor and Candice in a public place. The parents' case plans included parenting education, substance abuse treatment, and on-demand drug testing. In addition, Candice was to participate in general psychological counseling, and Todd was required to undergo a psychiatric medication evaluation. The parents' treatment goals included abstaining from illegal drugs and avoiding dependence on prescription drugs.

In advance of the six-month review hearing, the Agency reported that the parents had made progress in their case plans. Both Todd and Candice had completed parenting education classes and were participating in individual therapy. Candice had begun the intake process for substance abuse treatment. Todd reported that he had been prescribed opioid pain medication, and the Agency intended to discuss his prescriptions with his doctor. Candice had progressed to unsupervised visitation with the minors. Todd's visitation with T.C. and Tatum remained supervised, and he had begun supervised visitation with Taylor as well.

The Agency recommended an additional six months of reunification services. It did not recommend that the minors return home because the parents "have not completed a substance abuse treatment program and have consistently denied the protective concerns that brought the family to the attention of the Agency." At the hearing, the juvenile court adopted the Agency's recommendations regarding services. Although it removed participation in a substance abuse treatment program from Todd's case plan, it instead directed the Agency to include substance abuse as a topic for Todd's individual therapy.

A month after the hearing, the Agency petitioned the juvenile court under section 388 to again require that Candice's visitation with the children be supervised. The parents, who had been living with a relative, had been told to leave because of their erratic behavior. The relative suspected the parents had been using illegal drugs for the past several weeks. The parents missed an on-demand drug test and failed to keep in contact with the Agency. The court granted the petition and ordered supervised visitation for Candice.

In advance of the 12-month review hearing, the Agency recommended that the court terminate the parents' reunification services and set a selection and implementation hearing under section 366.26. The parents' substance abuse remained the Agency's primary concern. Candice completed six months of individual therapy without addressing her substance abuse. She eventually completed a limited substance abuse treatment program as well, but the Agency remained concerned that she was not sincere in her recovery.[3] Todd continued to test positive for various opioids and had not submitted any documentation regarding his prescriptions. He did not participate regularly in individual therapy.

The parents' living situation had also deteriorated; they were living in hotels. They visited the minors sporadically and did not adhere to a set visitation plan. A relative reported that the parents showed up to watch T.L. play soccer but were under the influence of drugs. Todd was missing a tooth and acting strangely. Other relatives reported similar concerns.

The parents contested the Agency's recommendations, and the court began an evidentiary hearing. It continued the hearing, however, after Candice developed a medical issue. At the Agency's request, the hearing was continued again. The hearing was eventually held at the 18-month date in the minors' dependency case, where the Agency expressed its continuing belief that the parents had not changed their behavior. Although it had received information regarding Todd's prescriptions, it had been unable to ascertain whether his positive drug tests matched the prescribed amounts.

After hearing testimony from various witnesses including the parents, the court terminated reunification services and set a selection and implementation hearing. It found that the parents remained vulnerable to drug addiction because they had not gained insight into the reasons for their addiction and were in denial about the problems drugs created in their lives. The court noted that the parents had missed several recent drug tests, which it characterized as a "red flag." It was especially concerned that neither parent had satisfactorily addressed substance abuse in therapy and that Candice believed Todd could adequately parent the minors notwithstanding his addiction.

The Agency recommended guardianship for Taylor and adoption for T.L. and Tatum. The minors were healthy and developmentally on track. Taylor continued to live with her maternal aunt and uncle, and they wanted to be her guardians. T.L. and Tatum continued to be placed with their paternal grandparents, who wanted to adopt the two girls. The three sisters continued to have contact throughout the dependency case, and the Agency did not foresee any disruption in their sibling relationship.

The Agency acknowledged that the parents "love their daughters and have attempted to provide for their children, but [they] have not been able to translate this love to acting in a consistent parental way." It reported that "[w]hile the children did spend years with their parents before entering foster care, it was learned that Taylor was acting as a caregiver for her younger siblings while [the parents] left them at times for several hours and days at a time. Rather than maintaining a parental role to [T.L.] and Tatum, [the parents] have occupied an often positive, though lesser role." The Agency believed that the benefits of adoption outweighed the benefits of maintaining the parents' relationship with T.L. and Tatum.

Taylor preferred guardianship for her sisters, but she did not object to adoption. T.L. told the Agency that living with her parents would be her first choice, "if they behaved better." She said she felt "good" about being adopted by her relative caregivers. Tatum did not talk about adoption, but she referenced her caregivers' house as her own. The Agency noted that both T.L. and Tatum love their parents and would ideally have reunified with them. But the Agency still believed adoption would be the best permanent plan.

At the hearing, the court heard testimony from an Agency social worker, Taylor, T.L., and Tatum. The Agency social worker, Kathleen Forbes, testified that the minors were a bonded sibling set and agreed that the parents interacted positively with the minors during visits. In her testimony, Taylor explained that she did not object to her sisters' adoption. She said she "worked [it] out in [her] mind" that adoption would be best for them. T.L. testified that she would feel "very bad" and would "miss them a lot" if she were unable to see her parents again. She said she felt "fine" about adoption. She said she would like to see her parents more than once per week, "maybe two days" per week. If she could choose three people to be with her on a desert island, T.L. would chose her caregiver (paternal grandmother), her mother, and Taylor. T.L. explained that her caregiver had promised she would continue to see Taylor and her parents even after adoption. But she said it would be acceptable if her caregiver decided she could not see her parents anymore because "she knows what's best for us." Tatum testified that she would be "sad" and "mad" if she could not see her parents again. She too had been promised she would continue to see them after adoption. Tatum said she would like to live with her parents again, but when asked who she would like to tuck her into bed, Tatum identified her caregiver. The court also admitted into evidence a number of visitation logs describing the parents' interactions with the minors, as well as several Agency reports.[4]

The parents did not contest guardianship for Taylor, and the court ordered guardianship for her as recommended. The parents contested adoption, however, and argued that the beneficial parent-child relationship and sibling relationship exceptions applied.

The court began its ruling by noting that it was "a very, very difficult case." It acknowledged that T.L. and Tatum love their parents and enjoy their visitation. But the court found that Todd and Candice were merely friendly visitors and did not parent the minors. It found compelling T.L.'s testimony that she would trust her caregiver to determine whether or not she could see her parents. It was also influenced by Taylor's testimony that she believed adoption would be best for her sisters. The court found that T.L. and Tatum were adoptable and none of the exceptions under section 366.26, subdivision (c)(1)(B) applied. It therefore terminated parental rights and selected adoption as T.L.'s and Tatum's permanent plan.

DISCUSSION

I

" 'Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.' [Citation.] 'A section 366.26 hearing . . . is a hearing specifically designed to select and implement a permanent plan for the child.' [Citation.] It is designed to protect children's 'compelling rights . . . to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.' [Citation.] 'The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.' " (In re Celine R. (2003) 31 Cal.4th 45, 52-53 (Celine R.).)

"Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.' [Citation.] The circumstance that the court has terminated reunification services provides 'a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more' of specified circumstances. [Citation.] The Legislature has thus determined that, where possible, adoption is the first choice. 'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.' " (Celine R., supra, 31 Cal.4th at p. 53.)

"We thus see that if the child is adoptable . . . 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 that termination of parental rights would be detrimental to the child. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.] At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53.)

The parents contend two such statutory exceptions apply, the beneficial parent-child relationship exception and the sibling relationship exception. We will consider each in turn.

II

The beneficial parent-child relationship exception applies where "[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).) The parent bears the burden in the juvenile court of showing the exception applies. (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.).)

The parties do not dispute that the parents maintained regular visitation and contact with T.L. and Tatum during the dependency case. Accordingly, the issues in this appeal are whether the parents established the existence of a beneficial parent-child relationship and whether the benefits of maintaining that relationship outweigh the benefits of adoption. (See In re Logan B. (2016) 3 Cal.App.5th 1000, 1011-1012.) "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.)[5]

"To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466 (Angel B.).)

"A parent must show more than frequent and loving contact or pleasant visits. [Citation.] 'Interaction between natural parent and child will always confer some incidental benefit to the child . . . . The relationship arises from the day-to-day interaction, companionship and shared experiences.' [Citation.] The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment between child and parent." (In re C.F. (2011) 193 Cal.App.4th 549, 555.) "A friendly relationship . . . 'is simply not enough to outweigh the sense of security and belonging an adoptive home would provide.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 938.)

"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.] While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination." (Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.)

Here, even assuming Todd and Candice established the existence of some positive parent-child relationship, they have not shown the juvenile court abused its discretion by finding that the benefits of maintaining that relationship were outweighed by the benefits of adoption. Although T.L. and Tatum had lived with Todd and Candice for eight and four years respectively prior to the Agency's intervention, the court could reasonably find that this time together did not lead to a strong bond between parent and child based on the parents' drug abuse, their frequent absences, and Taylor's involvement as a primary caretaker for T.L. and Tatum. This tenuous bond is reflected in the visitation reports, which show positive interactions but not significant emotional attachment. It is also reflected in T.L.'s and Tatum's testimony.

T.L. said she would feel "very bad" if she could not see her parents again, but only seemed to want to see them twice, rather than once, per week. T.L.'s desire for only infrequent interaction shows the lack of significance in the parent-child bond. T.L. also trusted her relative caregivers, the prospective adoptive parents, to determine whether she would be able to see her parents. Based on this evidence, the court could reasonably find that it would not be detrimental to sever T.L.'s relationship with her parents. Similarly, although Tatum said she would feel "sad" and "mad" if she could not see her parents again, she identified her relative caregiver as the person she would most like to tuck her into bed. The court could reasonably find that severing Tatum's relationship with her parents likewise would not be detrimental.[6]

Todd and Candice interpret this testimony differently, but under our standard of review we must credit the interpretation that supports the juvenile court's order. " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; see Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

Similarly, Todd and Candice focus on the wealth of positive visitation reports detailing their interactions with T.L. and Tatum. These visitation reports, while they show loving contact and pleasant visits, do not compel the conclusion that severing the parent-child relationship would be detrimental. The juvenile court could reasonably find that the bond between the parents and T.L. and Tatum was not of such a quality that would outweigh the benefits of adoption. Todd and Candice have not shown the court erred by finding that the beneficial parent-child relationship exception did not apply.

III

The sibling relationship exception applies where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" because "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)

In evaluating this exception, "the court is directed first to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952 (L.Y.L.).) Unlike the beneficial parent-child relationship exception, under the sibling relationship exception the court must assess the likelihood that terminating parental rights would in fact result in interference with the sibling relationship. "t is not a foregone conclusion that terminating parental rights will substantially interfere with a sibling relationship, and the juvenile court must make this factual determination." ([i]In re D.O. (2016) 247 Cal.App.4th 166, 175 (D.O.); see In re Daisy D. (2006) 144 Cal.App.4th 287, 293 (Daisy D.).) "If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption." (L.Y.L., at p. 952.)

"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption." (Celine R., supra, 31 Cal.4th at p. 61.)

Our standard of review under this exception is the same as under the beneficial parent-child relationship exception. "[W]e apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests." (D.O., supra, 247 Cal.App.4th at p.174.)

The sibling relationship here had already been affected by the dependency case, since Taylor had been placed separately from T.L. and Tatum to mitigate the effects of "parentification" and alleviate Taylor's feelings of responsibility for her younger sisters. Even assuming T.L. and Tatum continued to enjoy a significant sibling bond with Taylor, the juvenile court could reasonably find that termination of parental rights would not substantially interfere with that bond. It appeared likely that T.L. and Tatum would be adopted by their relative caregivers. These caregivers had allowed and encouraged visitation among the siblings during the dependency case, and there was no indication that visitation would end with T.L.'s and Tatum's adoptions. Indeed, the caregivers had promised T.L., Tatum, and Taylor that visitation would continue. Todd and Candice have not shown the court erred in finding that termination of their parental rights would not substantially interfere with T.L.'s and Tatum's relationship with Taylor. (See Daisy D., supra, 144 Cal.App.4th at p. 293 [sibling relationship exception did not apply where minor would be adopted by relatives who intended to maintain contact between the minor and her half siblings].)

DISPOSITION

The orders are affirmed.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.