Filed 10/17/17 In re Ayden B. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Kern County. Raymonda B. Marquez, Judge.

Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant.

Mark L. Nations, Interim County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Adrianne M. (mother) received reunification services for two years four months after her children were placed in custody in September 2014 pursuant to Welfare and Institutions Code section 300[1] because mother and father[2] were arrested for being under the influence of methamphetamine. After a contested hearing on January 31, 2017, over whether mother’s parental rights should be terminated (§ 366.26), the juvenile court ruled the parent-child exception did not apply and it terminated mother’s parental rights to Ayden B. (then four years old) and Kobe B. (then three years old) by written order on February 9, 2017. Mother contends on appeal she had a close bond with both children and the juvenile court erred in failing to apply the beneficial parent-child relationship exception to the statutory preference for adoption. We find no error and affirm the juvenile court’s orders.

FACTS AND PROCEEDINGS

Early Proceedings

On September 8, 2014, mother and father were found in public by deputies of the Kern County Sheriff’s Department to be under the influence of methamphetamine and arrested. Mother admitted smoking methamphetamine with a relative in the presence of her young children and leaving them in the care of a relative. One of the investigating deputies knew the relative from prior contacts and knew she had a history of illegal drug use. Deputies proceeded to the parents’ residence. Mother admitted consuming methamphetamine the day before but denied her children were present with her when she did so. Although Kobe had a significant rash that mother attributed to his diapers, she had not taken him to the doctor since April when she lived in a different state.

The children were immediately placed into protective custody. Petitions were filed for each boy pursuant to section 300, subdivision (b) alleging they were at substantial risk of serious physical harm or illness due to their parents’ willful or negligent failure to care for them because the parents left them in the care of a relative known to regularly inject and smoke methamphetamine and the parents were regularly under the influence of and used methamphetamine. The petitions alleged mother smoked methamphetamine on a daily basis in the presence of and while caring for her children. An amended petition for Kobe was filed alleging he had a severe diaper rash. The children were detained by the juvenile court after a detention hearing held on September 10, 2014. The parents were ordered to submit to regular drug testing for the Kern County Department of Human Services (department) and permitted visitation twice weekly for two hours.

At the conclusion of the jurisdiction hearing on February 17, 2015, the juvenile court found the allegations in the petitions filed for both children true with the exception of the allegation that mother had failed to medically attend to Kobe for diaper rash, which the department moved to dismiss. At the conclusion of the disposition hearing on March 23, 2015, the juvenile court found both children dependents of the court, ordered their removal from their parents’ physical custody, ordered reunification services for both parents, and further ordered the parents to enroll in and complete counseling for parenting and neglect, as well as for substance abuse. The parents were ordered to submit to random urine drug tests on at least a monthly basis and informed that unless there was good cause, the failure to test would be considered a positive test.

Between March 23, 2015, and August 5, 2015, mother had seven face-to-face contacts with the department concerning her reunification plan. Social workers made contact with mother by telephone one time during that time frame. Mother repeatedly failed to follow through with her intake appointments and took a long time to start services. On June 11, 2015, mother was terminated from the Capistrano Women’s Home for possession of methamphetamine and reported to another substance abuse program on June 23, 2015. Mother made satisfactory progress in drug treatment as of September 1, 2015, but showed a minimal level of interest and involvement with her treatment. Between March 2015 and early May 2015, mother either tested positive for amphetamine and methamphetamine, or failed to appear for testing and was presumed positive for drugs. Between mid-May 2015 and late July 2015, mother tested negative for drugs.

Mother’s early visits with the children were described as of adequate quality. Mother engaged well with the children, was attentive to their needs, praised their good behaviors, and played with them appropriately. Between late March 2015 and early August 2015, mother missed seven visits with the children. Three of these were due to health issues and two others were due to problems with transportation. Mother was arrested on September 5, 2015, for reckless evasion of a peace officer and driving without a license. Mother told the social worker that her boyfriend took off his ankle monitor and they were forced to live in his car. After her arrest, mother missed parenting and neglect counseling sessions and was discharged from her program at the Henrietta Weill Child Guidance Clinic on September 23, 2015.

On October 6, 2015, mother submitted an invalid urine specimen—it had no creatinine and appeared like water, unlike normal human urine. On November 3, 2015, mother’s drug test was cancelled because she submitted a sample with no seal on the bottle. Mother submitted a negative urine test on October 8, 2015. As of November 2, 2015, mother’s substance abuse counselor reported mother attended 14 of 15 sessions in October, as well as attending group counseling, individual counseling, and a relapse prevention group. Mother’s progress in treating her addictions was described as good. Mother completed and graduated from a course for parenting and neglect in October 2015.

On November 6, 2015, mother attended a visit with the children at McDonald’s. Mother lost her bus pass and asked the social worker to pick her up in his car. Mother left her wallet in the social worker’s car and the social worker paid for the children’s meal. Mother returned to the car and got her wallet, but when she tried to purchase her meal, the manager claimed she was using a counterfeit $100 bill. At the end of the visit, Ayden had a tantrum and “did not want to leave mommy.”

At the six-month review hearing under section 366.21, subdivision (e), the department recommended reunification services be terminated. The department, however, filed a supplemental report for a combined hearing under section 366.21, subdivisions (e) and (f), changing its recommendation to extend services for mother. At the hearing on November 12, 2015, the juvenile court continued reunification services for mother. Mother was ordered to participate in counseling for codependency or enroll in a class on codependency.

Over the next several months, mother visited the children five times between November 13, 2015, and January 27, 2016. Mother’s only missed visit since the prior review was on December 4, 2015, due to a kidney infection. The visits were of adequate quality, and the mother engaged well with the children and attended to their needs. Between November 18, 2015, and January 15, 2016, mother tested negative for drugs five times, however the test on December 10, 2015, was labeled suspicious as it did not have a normal human creatinine level. Mother had a positive test for hydromorphone and hydrocodone, which had been prescribed by a physician. Mother had three presumptively positive tests during that time frame for failing to appear or provide a specimen. On January 29, 2016, mother tested positive for methamphetamine. On February 11, 2016, mother again tested positive for methamphetamine. Mother failed to appear for a drug test on March 16, 2016, and had three negative drug tests on other dates in February, March and mid-April 2016.

On February 18, 2016, the social worker tried to refer mother to a gatekeeper for substance abuse counseling. Mother refused to meet with a gatekeeper and said she was not going to enroll in substance abuse counseling twice. For the section 366.22 hearing, the department recommended termination of family reunification services and a hearing to select and implement a permanent plan under section 366.26. The juvenile court ordered mother’s family reunification services terminated on April 29, 2016.

Mother filed a notice of intent to file a writ petition and a request for record on May 3, 2016. Mother’s attorney determined he would not file a writ, and our court issued a notice that if mother did not file a petition within 10 days, the matter would be dismissed. Mother’s writ petition was dismissed on June 16, 2016.

Mother was arrested for possession of substance abuse paraphernalia on May 24, 2016. Bakersfield police officers were responding to a 911 call and asked two suspects (including mother) if they had anything illegal on them. Mother spontaneously stated she had a methamphetamine pipe in her bra. Mother reenrolled in substance abuse counseling on June 15, 2016. She tested positive on June 16, 2016, and had negative tests between late June 2016 and August 11, 2016.

On July 19, 2016, mother filed a request for ex-parte hearing to request a bonding study before the section 366.26 hearing. The juvenile court heard the matter and denied mother’s request for a bonding study on July 28, 2016.

Mother’s Petition for Modification

On July 28, 2016, mother filed a request to change the juvenile court orders, asking for six additional months of reunification services. Mother filed an amended request to change court order with additional attachments the next day. The juvenile court set the hearing on the modification request for August 22, 2016. On August 9, 2016, the juvenile court granted an ex parte application to receive delivered service logs into evidence for the upcoming hearings.

At the modification hearing, mother testified her case plan at the original disposition hearing had required her to complete parenting and substance abuse counseling. Mother explained she completed both parenting and substance abuse counseling. Mother admitted to a relapse and stated she reenrolled in a substance abuse class on June 15th. Mother testified she had been making regular progress in her programs since June.

Mother explained she maintained visitation with her children for two hours two times a week since her children were detained. She acknowledged there were visits cancelled due to transportation issues. Mother thought she had attended a majority of her visits. Mother’s last visit was at McDonald’s, where she became frustrated because she did not have money to feed the kids. Mother described how both children would run to her and say “mommy” at the start of visits. At the end of the visit, mother helped buckle the kids into the car and blew them hugs and kisses while waving goodbye.

Mother believed the children would be emotionally harmed if they were not allowed to see her or have contact with her. If mother missed a visit, the next time she saw the boys she noticed how they had changed. With the reduction in phone calls since the last change in placement, mother said “we’re being forced to get this distance” and added, “It just feels like they are being taken further away from me.”

The juvenile court asked mother if she felt she had an addiction, and mother wavered between answering she did not and she probably did. After closing arguments by counsel, the juvenile court acknowledged this case was a “tough call.” The juvenile court found mother’s enrollment for a second round of substance abuse treatment after flatly refusing to do so was a change of circumstance. The court further found, however, that changing the prior order would not be in the boys’ best interests and denied the modification petition.

Section 366.26 Proceedings

The adoptions social worker observed that from the date the children were taken into protective custody until the date the case was assigned to the adoptions unit, mother had the opportunity to attend 166 visits. Mother attended 45 of those visits for a percentage of 27 percent. Since the case had been assigned to adoptions, the mother had attended 23 out of 24 visits. The social worker noted the quality of interactions during the visits was generally good, although during visits mother would not redirect or discipline the children when they misbehaved. The children were excited to see their mother at the beginning of visits, but they rarely if ever showed any emotion or sadness when it was time for them to go with their caretakers. The social worker noted the children had been out of mother’s care for more than half of their lives and opined the children do not look to their mother as their primary caretaker. The social worker thought the benefits of a permanent adoptive home outweighed the benefits of maintaining mother’s parental rights.

The social worker concluded the children had been out of their mother’s and father’s care for 22 months. They had a minimal relationship with their mother and a nonvisiting relationship with their father. The social worker did not see a significant degree of attachment between the children and their parents. The risk of any detriment caused by termination of parental rights was outweighed by the benefits of adoption. The social worker recommended termination of parental rights and a referral of the children for adoption.

The department reported mother had been consistently visiting the children since the case was referred to the adoptions unit. The quality of the visits was good. The children show affection during the visits, however they rarely show sadness when visits end and it was time to go home with their caretakers. The children were also very excited to see their caretakers at the end of visits with mother, greeting them with the same level of excitement and affection they showed mother. The children had been placed with the same caretakers since July 2016 and developed a strong bond with them, referring to them as mom and dad. The current caretakers were committed to a permanent plan of adoption. A home study had been requested for the caretakers.

Mother had one positive test result on June 16, 2016, though the report did not indicate the substance detected. In eight subsequent tests between the end of June 2016 and December 20, 2016, mother had negative test results for the presence of drugs. On September 15, 2016, mother completed a drug treatment program that she started on June 15, 2016. During the fall of 2016, mother visited the children eight times between late October 2016 and mid-December 2016. All of the visits were supervised. As of December 2016, the social worker concluded mother made moderate progress toward alleviating the causes for the children’s placement out of the home. The caretakers continue to express an interest in pursuing the permanent plan of adoption. The department’s final recommendation was for the termination of parental rights with a permanent plan of adoption for the children.

The juvenile court held a hearing under sections 366.26 and 366.3 on January 31, 2017. By the time of this hearing, the boys had been in their new home for more than six months. Mother testified she was still in the Terra Lynn outpatient sober living program and had been drug-free for seven months. Mother participates regularly in Narcotics Anonymous meetings and was attending college classes. Mother was to have completed 68 group counseling sessions by the end of the week. Mother was visiting the children twice weekly for two hours each visit. The visits took place in a sober living home. Mother said the children would show up to the visits and give mother and staff kisses and hugs. The children called mother “mom,” hug her, and always tell her they love her. Kobe called mother his “hero.”

Mother sought extended family reunification services, citing to section 366.3. Mother additionally argued the court should consider parental progress when considering the beneficial relationship exception to adoption, citing In re Noah G. (2016) 247 Cal.App.4th 1292, 1294.

The minors’ counsel argued mother had not met her burden of proving further efforts at reunification were the best alternative for the children. The minors’ attorney concluded the children were in a stable placement, and given mother’s recent relapse, additional efforts at reunification were not a valid option.

The department initially pointed out that section 366.3, subdivision (f) was not applicable because the court had not yet completed the section 366.26 hearing, so the case was not at a postpermanency status. The department argued that while the mother was making good progress, she still had not completed her substance abuse program, she did not have housing, and she did not have the ability to provide for her children. The department thought mother’s circumstances were still changing and had not yet sufficiently changed to warrant a finding that further efforts at reunification were the best alternative for the children. The department noted the children had spent more than half of their lives in out-of-home care and argued the relationship with mother did not outweigh the benefit the children would receive from an adoptive home. The juvenile court took the matter under submission.

The juvenile court issued its ruling on February 9, 2017, holding first that the case was not yet in a postpermanency setting. The court noted mother had not yet moved beyond the structured environment of her sober living residence. The court found, “[W]hile the boys love their mom, they have been out of her care for more than half of their lives.” The juvenile court found the evidence was insufficient to demonstrate termination of mother’s parental rights would be detrimental to the children when weighed against the benefits of adoption, citing In re Noah G., supra, 247 Cal.App.4th 1292 in support of its decision. The court noted the facts in that case exceeded the facts in the present case, and the appellate court still found the exception did not apply. The court found clear and convincing evidence the children are likely to be adopted and ordered adoption as the permanent plan. The juvenile court terminated mother’s and father’s parental rights.

DISCUSSION

Mother contends she had a close bond with the children, her visits with the children were consistent and appropriate, she was the only consistent parental figure in their lives, the children loved mother, and the children would benefit from a continued relationship with her. Mother argues the juvenile court erred in failing to apply the beneficial parent-child relationship exception to the statutory preference for adoption. We reject these contentions.

Appellate Review of Beneficial Relationship Exception

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. The burden is on the parent to prove changed circumstances. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If the children are likely to be adopted, 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 termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1)(B) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parent’s burden to show termination would be detrimental under one of the exceptions. There is a strong preference for adoption. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

The standard of appellate review has been described as the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences that uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Angelia P. (1981) 28 Cal.3d 908, 924.) We view the evidence in the light most favorable to the trial court’s judgment, contradicted or uncontradicted, and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)

Other courts have applied the abuse of discretion test. When a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under either the substantial evidence test or the abuse of discretion test, our analysis here would be the same. The practical differences between the two tests are insignificant as they both give deference to the juvenile court’s judgment. (See ibid.)

For the section 366.26, subdivision (c)(1)(B)(i) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent-child relationship in a tenuous placement against the security and sense of belonging a new family would confer. If severing the natural parent-child relationship would deprive the child of a substantial and positive emotional attachment so 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., supra, 27 Cal.App.4th at p. 575.)

Interactions between the natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, comfort, affection, and stimulation. The relationship arises from day-to-day interaction, companionship, and shared experiences. The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

A substantial evidence challenge to the juvenile court’s failure to find the beneficial parental relationship or a sibling relationship cannot succeed unless the undisputed facts establish the existence of such relationships. Such a challenge amounts to a contention the undisputed facts lead to only one conclusion. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re I.W. (2009) 180 Cal.App.4th 1517, 1528-1529.)

Mother’s Showing of Beneficial Relationship

Mother argues her consistent and appropriate visits with the children, coupled with the loving bond they have, met the strong burden she bore to show applicability of the beneficial relationship exception. Mother points out she had been sober for seven months prior to the section 366.26 hearing. Mother further argues she was the only consistent parental figure in the children’s lives, she kept in constant contact through visits with the children, and the children loved her.

Mother has viewed the evidence presented at the hearing in the light most favorable to herself, not in the light most favorable to the juvenile court’s factual findings and legal rulings. Mother’s visits with the children were generally good, but at times she struggled to redirect them. Mother’s early visits were inconsistent and her attendance was poor. Mother’s visitation frequency improved substantially after reunification services and she maintained a consistent period of sobriety. The early sporadic visits, however, undermined mother’s ability to form deeper bonds indicating a substantial emotional relationship. (In re Breanna S. (2017) 8 Cal.App.5th 636, 648.)

Given mother’s history with methamphetamine and relapse, she had been sober for a comparatively short time even by the section 366.26 hearing in January 2017.

That mother’s visits were still supervised after more than two years was also a factor to be considered by the juvenile court. Mother had not progressed to unsupervised visits with the children or for overnight stays. The preference for permanency in the children’s placement took precedence over reunification with mother.

The factors to consider when testing whether a parental relationship is important and beneficial include the age of the child, the portion of the child’s life in the parent’s custody, the positive or negative effect of interaction between the parent and child, and the child’s particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) The children here were both very young when they were detained and taken into foster care. They had not spent time in mother’s care for over two years. Mother did not show how either child would suffer detriment on the termination of parental rights.

The juvenile court and the parties noted it was uncontested mother loved her children and had positive visits with them. The parent bears the burden of showing more than loving contact and pleasant visits. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.) The parent has the burden of proving the statutory exception applies. (In re Breanna S., supra, 8 Cal.App.5th at p. 646.) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Mother needed to demonstrate she occupied a parental role in her children’s lives resulting in a significant, positive, emotional attachment from child to parent. (In re Breanna S., supra, at p. 648.) Here, the evidence mother occupied this crucial role in their children’s lives was wanting. (In re L.Y.L., supra, at p. 954.)

Mother has failed to show detriment or harm if the parent-child relationship ended. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) We agree with the agency; there was insufficient evidence from mother demonstrating the benefits of maintaining the parent-child relationship would outweigh the benefits to the children of adoption.

DISPOSITION

The findings and orders of the juvenile court are affirmed.