Filed 12/21/18 In re Z.Z. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Judge. Affirmed.

Dennis Temko, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jesica Fellman, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

L.C. (Mother) appeals a juvenile court order terminating her parental rights to Z.Z. (Minor) and choosing adoption as the child's permanent plan. (Welf. & Inst. Code, § 366.26.)[1] Mother contends the juvenile court erred in finding the beneficial parent-child relationship exception to adoption did not apply. (Id., subd. (c)(1)(B)(i).) We conclude there is substantial evidence to support the court's factual findings and the court did not abuse its discretion in determining the parent-child relationship did not outweigh the benefit of adoption for Minor. We, therefore, affirm the order.

BACKGROUND

A

A month before Minor's birth, Mother was admitted to a hospital due to a high-risk pregnancy. She tested positive for methamphetamines and marijuana. Mother remained hospitalized until Minor's premature birth. Both Mother and Minor tested negative for drugs at the time of birth.

Shortly after Minor's birth, a referral was made through the child abuse hotline alleging concern for the child due to Mother's drug abuse, homelessness, and mental health. Mother admitted she smoked methamphetamine after she was discharged from the hospital and she tested positive for amphetamine and methamphetamine. She initially stated she used methamphetamine once a day, but then said it was once a week. Mother admitted she lived under a bridge before she was hospitalized but thought she would go to San Diego Rescue Mission or to stay with a relative after Minor's discharge. However, the relative said Mother and the child could not live with her.

San Diego Health and Human Services Agency (Agency) filed a dependency petition alleging Mother used amphetamine and/or methamphetamine and marijuana to excess during pregnancy and continued to use after Minor was born resulting in a positive drug test. The Agency alleged Mother did not have adequate provisions to provide regular care for the child.[2]

The court made a prima facie finding on the petition. Minor was detained in a confidential licensed foster home after being discharged from the hospital. At the jurisdiction hearing, the court sustained the petition making a true finding on the allegations as to Mother. At the disposition hearing, the court declared Minor a dependent of the court pursuant to section 360, subdivision (d), ordered placement for the child in a confidential licensed foster home, and ordered reunification services for Mother.

B

Mother made moderate progress toward alleviating or mitigating the causes necessitating placement in the first six months. Mother participated in a substance abuse program, parenting education programs, and visited regularly with Minor. Mother maintained her sobriety and did not test positive for drugs. Mother was slow to complete homework assignments for treatment and resisted sharing them during group sessions, but she began to participate more fully after the social worker stressed the importance of compliance with the treatment plan to reunify with Minor.

Minor thrived in the home of the foster parents (caregivers). Minor smiled and interacted with the caregivers and the other children in the home. Minor was comforted by the caregivers. Minor was also comfortable with Mother. Minor smiled and imitated Mother's noises.

Mother received approval for unsupervised visits three days a week. However, the visits were rarely unsupervised. At least once a week the visits were with a visitation coach and mother asked the foster mother to stay for visits on other days. The first time Mother was alone with Minor, Mother called the social worker stating she felt overwhelmed and anxious. Mother remained on the phone until a relative came home to provide support. Mother developed more confidence over time. Mother was affectionate with Minor, holding and making good eye contact with the child. Mother came prepared for the visits with milk, diapers, and supplies. Mother planned to use her family as informal support and to build the time she spent with the child alone.

The court continued reunification services for Mother and gave the social worker discretion to allow overnight visits and a 60-day trial visit.

C

After a year, Minor continued to thrive in the placement. Minor met all developmental milestones. Minor appeared happy and comfortable when held by the caregivers. Minor made eye contact, smiled, and laughed with the caregivers and the other children in the home. The caregivers provided for Minor's basic and medical needs. Minor was described as "a super smiley and happy kiddo."

Minor also appeared comfortable with Mother during visits. Mother read books to Minor and played peek-a-boo.

Mother continued to make progress in her services. She did not have any positive drug screens during the review period. Mother was staying with an aunt and a cousin. However, the home became unsafe for overnight visits with Minor after a domestic violence incident between Mother's cousin and a girlfriend. Mother reportedly made efforts to obtain housing to resume overnight visits. Mother had some trouble attending substance abuse services but improved in her ability to complete homework assignments and to move through treatment phases.

Mother consistently visited with Minor three times a week, unsupervised. Although Mother missed some visits due to transportation issues, Mother remained in contact with the social worker and the foster mother to reschedule visits.

The court ordered Minor's continued placement in the foster home, noting it appeared Minor could be returned home at the next review hearing.

D

The Minor was placed with Mother for a 60-day trial visit shortly before the 18-month review hearing. Mother had completed her parenting and drug rehabilitation program. She communicated well with the program, shared in group, tested clean for drugs, and timely completed homework assignments. Mother's visits were consistent over the review period and Mother resumed overnight visits with Minor in the home of an aunt.

Minor had continued to thrive with the caregivers and they offered to help mother with daycare. Mother asked the caregivers to be the Minor's godparents. Mother and the caregivers had a good relationship with common goals for ensuring Minor's safety and well-being. Mother stated she wanted to secure housing away from "the old neighborhood" to reduce her triggers to use drugs and so Minor's father could not find her or the child. The court continued Minor's dependency status and ordered services for Mother consistent with the case plan, noting Mother's progress toward alleviating or mitigating the causes necessitating placement had been substantial.

E

In November 2017, at the family maintenance review hearing, Minor was living with Mother in a relative's home. When an instance of domestic violence occurred between Mother's cousin and his girlfriend, Mother left the home and obtained care for Minor with the caregivers until the home was made safe again. Due to the stress related to the domestic violence incident, Mother relapsed and used methamphetamine while Minor was in the care of the caregivers. Mother stated it was a onetime relapse and she planned to start attending meetings again. However, she tested positive for methamphetamine a month later.[3]

Minor was very bonded with the caregivers' children and referred to the caregivers as "Nina Ma" and "Pa." Minor was also affectionate with Mother and Minor's half sibling.

The court found by clear and convincing evidence that conditions still existed to justify continuing Minor's dependency status. The court continued Minor's placement with Mother and ordered services for another six months.

F

1

However, on January 29, 2018, the Agency filed a supplemental petition alleging Mother was no longer able to provide adequate care and supervision for Minor because Mother continued to test positive for methamphetamine. "Despite over two years of services the mother continues to use the pernicious drug." The Agency alleged Mother was no longer engaged in substance abuse treatment and had not maintained contact with the Agency.

The detention report noted Mother relapsed on methamphetamine several months after Minor was placed with her. The court granted Mother six more months of services after the relapse on the condition Mother would participate in a drug treatment program, use her support network, and remain sober when caring for Minor. However, Mother was still using methamphetamine and was not using either the treatment program or her support network. The report noted "after two years of working with the Agency, [Mother] is back to where we started when we filed the original petition" and "the protective issue has not been mitigated." Mother stopped participating in a drug treatment program and neither the program nor the Agency had been able to contact Mother.

The social worker encouraged the caregivers, who had Minor for an overnight visit, to keep Minor to ensure the child's safety and well-being. However, Minor was returned to Mother's care. Despite repeated efforts by the social worker, Mother made no contact with the Agency for several weeks and her whereabouts were unknown. They Agency recommended continued detention of Minor due to Mother's methamphetamine use, concern Mother would continue to use dangerous and harmful substances, and Mother's lack of resources to provide for Minor.

The court found the Agency made a prima facia showing that Minor was a person described by sections 300, subdivision (b) and 387 and that continued care in Mother's home was contrary to the child's welfare. When Mother was located, Minor was returned to protective care.

2

Thereafter, the social worker met with Mother who stated she was having a lot of trouble with her sobriety and needed more time to provide a safe home for Minor. Mother discussed with her sponsor the pros and cons of moving forward with guardianship of Minor by the child's godparents, who were the caregivers. Mother felt the caregivers could offer Minor a better life and give Mother time to get clean and sober. The caregivers agreed with the plan stating they had always been a concurrent home for Minor. The Agency recommended terminating services for Mother and setting a section 366.26 hearing.

About a month later, Mother admitted Minor was safest with the caregivers, who can provide Minor with consistency. Mother said she needed more time to show she can use coping skills and a support network to stay sober.

In March 2018, the court made a true finding on the section 387 petition, concluding the previous disposition placing the child with Mother was not effective. The court noted Mother continued to test positive and was not in a substance abuse program until recently even though she relapsed in October 2017. The court noted mother had received two years of services, but Mother did not feel ready to care for the child. Minor was placed with the caregivers.

3

The section 366.26 report noted Minor was a happy child who moved easily between the caregivers and Mother. Minor got along well with the other children in the caregivers' home. The caregivers worked well with Mother so that Minor remains a part of Mother's life and extended family. Caregivers supervised visits with Mother and Minor at family events. Mother had daily contact with the caregivers and visited Minor weekly.

Mother was appropriate during visits. Mother and Minor had rituals such as butterfly kisses and children's songs. Minor was comfortable with Mother and they had a positive relationship.

Mother had no concerns with Minor's current placement and said she had come to terms with the fact she cannot provide for Minor as she would like. However, Mother did not want to talk about permanent plans as it made her feel she was "giving up." She wanted to give temporary guardianship of Minor to caregivers. The social worker acknowledged Mother and Minor had a positive relationship but felt the benefits of permanency outweighed any detriment the Minor would suffer if Mother's parental rights were terminated.

The Minor was assessed as adoptable. The caregivers were willing to adopt Minor. They previously adopted three other children. If neither the caregivers nor paternal relatives were approved to adopt Minor, the Agency determined more than 100 possible approved families would adopt a child in similar circumstances as Minor.

The caregivers preferred adoption to secure permanency for Minor. The caregivers were willing to continue the supportive relationship with Mother. The social worker opined adoption would not change the nature of Minor's relationships with Mother or other family members and adoption was the best permanent plan.

At the section 366.26 hearing, the court found Minor was adoptable, adoption was in the best interest of the child by clear and convincing evidence, and no exceptions listed in section 366.26, subdivision (c)(1) applied. The court terminated all parental rights, declared Minor free from the custody and control of Mother, and referred Minor to the Agency for adoptive placement as the permanent plan.

DISCUSSION

"At a section 366.26 permanency planning hearing, the juvenile court determines a permanent plan of care for a dependent child, which may include adoption. [Citations.] 'If the dependent child is adoptable, there is strong preference for adoption over the alternative permanency plans.' [Citations.] In order to avoid termination of parental rights and adoption, a parent has the burden of proving, by a preponderance of the evidence, that one or more of the statutory exceptions to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) or (B) apply. [Citations.] The court, 'in exceptional circumstances,' may 'choose an option other than the norm, which remains adoption.' [Citation.] The parental benefit exception applies when there is a compelling reason that the termination of parental rights would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 394–395 (Anthony B.).)[4]

"[A]fter reunification services are terminated or bypassed …, 'the parents' interest in the care, custody and companionship of the child [is] no longer paramount. Rather, at this point "the focus shifts to the needs of the child for permanency and stability … ." ' [Citations.] For this reason, the decision to terminate or bypass reunification services ordinarily constitutes a sufficient basis for terminating parental rights. (§ 366.26, subd. (c)(1).)" (In re K.C. (2011) 52 Cal.4th 231, 236–237.)

"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." (Anthony B., supra, 239 Cal.App.4th at p. 395.) "In the dependency context, both standards call for a high degree of appellate court deference. [Citations.] '[T]he ultimate question is whether adoption would be detrimental to the adoptive child, not someone else.' " (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.)

The beneficial parent-child relationship exception applies if termination of parental rights would be detrimental to the child because Mother 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).) In this case, there is no dispute Mother maintained regular visitation. However, Mother did not meet her burden of showing the second prong of the analysis.

Courts have interpreted the phrase " 'benefit from continuing the ... relationship' " "to mean the relationship 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. In other words, the 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 Autumn H. (1994) 27 Cal.App.4th 567, 575; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936.)

A parent asserting this exception cannot meet his or her burden by showing frequent, friendly, and loving contact with the child or even the existence of a parent-child bond. (In re L.S. (2014) 230 Cal.App.4th 1183, 1200; In re J.C. (2014) 226 Cal.App.4th 503, 529; In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.) "[T]he parental relationship exception does not permit a parent to 'derail' adoption simply by showing that the child would derive some benefit from continuing the parental relationship through visits. [Citation.] Rather, to establish the exception a parent must prove that the benefit of continuing a parental relationship outweighs the child's interest in the stability and permanence of adoption." (In re Logan B. (2016) 3 Cal.App.5th 1000, 1012.)

The juvenile court here noted Mother's reunification history and acknowledged Mother maintained consistent contact with Minor after Mother's relapse and Minor's second detention. However, the court stated it was required "to look at the big picture" and the best interest of Minor. Given Minor's young age, the fact Minor was adoptable, and Mother's unpredictable pattern regarding her ability to remain sober and to care for the child on a long-term basis, the court found "the benefits of having an adoptive home that is permanent and forever for this child outweigh the relationship that the child has with the mother." The court noted the caregivers indicated a willingness to maintain a relationship between Minor and Mother. So, the court concluded, "the benefit the adoption brings outweighs the more familiar relationship that the mother has with the child rather than a parent[-child] relationship."

We conclude there was substantial evidence to support the juvenile court's factual findings and the court did not abuse its discretion in concluding the benefit of adoption outweighed the relationship with Mother. Minor is still very young. Although Minor had a positive and affectionate relationship with Mother, there was no evidence Minor had trouble separating from Mother when visits were over or when care was transitioned. Minor reportedly moved easily between Mother and caregivers. The caregivers and their children were the constant factors in Minor's short life. The caregivers supervised many of the activities Mother participated in with Minor, including Mother's family celebrations and community activities. Even when Minor was reunified with Mother for a period of months, the caregivers provided care several times per week and provided full-time care for nearly two months when Mother's home became unsafe. Mother never was able to secure permanent housing during the years-long dependency matter despite her repeated acknowledgement of the need to do so.

Thus, there was no evidence of detriment to Minor from terminating Mother's parental rights. On the other hand, there was overwhelming evidence Minor's adoption by the caregivers, who had provided Minor a loving and stable home throughout Minor's life, outweighed any benefit of the parental relationship with Mother.

DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

AARON, J.