Filed 1/11/18 In re Elena O. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re ELENA O., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Plaintiff and Respondent,

v.

ANA O.,

Defendant and Appellant.

F075993

(Super. Ct. No. 517114)


OPINION

THE COURT*
APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Ana O. (mother) appeals from the juvenile court’s order terminating her parental rights over her child, Elena O., under Welfare and Institutions Code section 366.26. She argues the juvenile court erred when it found the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We reject mother’s claim and affirm.
FACTUAL AND PROCEDURAL HISTORY
Background
Elena came to the attention of the Stanislaus County Community Services Agency (agency) at the time of her birth in August of 2014, when both she and mother tested positive for amphetamines. Elena was believed to be at 29 weeks gestation at birth, weighing 3.28 pounds, and was placed into the neonatal intensive care unit. It was later determined Elena was not born as early as initially thought, but instead suffered from severe intrauterine growth retardation.
Mother admitted cocaine and methamphetamine use prior to delivery, as well as daily use of alcohol, marijuana and Vicodin. Mother stated she did not receive prenatal care because her doctor did not tell her she was pregnant. Mother then stated she thought she was pregnant the previous December, but was afraid to get prenatal care.
Mother was confused or nonsensical in her discussions with hospital staff and social workers. She stated she had a violent relationship with her estranged husband, Jose M. (father), and he had punched her in the stomach. She also said father would break into her home and force her to use methamphetamine at different hours. Mother had difficulty reporting the address of her adult son, who was caring for mother’s daughter, Sabrina, age 14, while mother was in the hospital.
When the social worker met with father, he was confused that mother was pregnant. He denied that he could be the father, as he had not had sex with mother since December of 2013. He denied the many allegations mother made against him and stated he was done with mother because of her daily drinking, having sex with other men, and “enjoying ‘drama.’” Father was living with his own mother.
The agency at first planned to enter into a voluntary services agreement with mother to live with her adult son and his girlfriend, A.T., in their home. However, after a meeting in their home with mother and the family, A.T. expressed concern that mother was not taking the matter seriously. During the meeting, mother was evasive in answering questions and distracted by texting and playing with her phone.
The group then traveled to mother’s home to assess it. Mother arrived after the rest of the group with a bag of tall Budweiser beers, claiming it was for someone else. The interior of the home was filthy and infested with cockroaches, which mother blamed on the previous tenant. Mother also blamed father and handed the social worker a green animal control ticket, stating it was issued by the police for all of the things father had done. When told the ticket was issued to her for her mistreatment of her dog, she stated the dog was not hers. It was determined voluntary services would not protect Elena and she was placed into protective custody.
Detention
A section 300 petition was filed August 28, 2014, alleging Elena suffered risk of harm due to mother’s substance abuse, her failure to take responsibility for her actions, her lack of preparedness for Elena, and her many bizarre statements, attributable to either mental illness or developmental disability.
At the detention hearing August 29, 2014, counsel for father requested that a guardian ad litem be appointed for him, which father agreed to. The juvenile court found a prima facie showing Elena was a child described by section 300 and detained her. Jurisdiction was set for September 23, 2014, and continued for jurisdiction/disposition November 13, 2014.
Amended Petition
On October 23, 2014, the agency filed a first amended petition with allegations that father’s developmental disabilities rendered him unable to safely care for Elena. Father had difficulty with basic conversations, spoke in sentences of no more than six words, and tended to answer “yes” to each question without necessarily understanding them. He was clear that he wanted Elena to live with his sister, Veronica, where Sabrina was also staying. Veronica explained that she helped raise Sabrina from the age of two weeks because mother and father did not know what to do.
Jurisdiction/Disposition
The report prepared in anticipation of jurisdiction/disposition stated Elena had been placed with a paternal aunt (Veronica), who had also taken placement on a voluntary basis of Sabrina. The paternal aunt was seeking legal guardianship of Sabrina.
The report stated mother’s substance abuse, possible domestic violence, and the developmental disability of both mother and father required significant help for both in parenting and managing daily activities. While father was very open about his “disability,” readily seeking help from other family members, mother was less forthcoming, denying she had a developmental disability. She did admit she was in special education while in school. The agency recommended parenting classes, substance abuse assessment and treatment, and clinical assessments for both mother and father. The social worker found mother’s reports of father breaking into her home to be “bizarre and not credible.” Mother was visiting Elena regularly and visits were going well.
On November 13, 2014, the juvenile court found the amended petition true and declared Elena a dependent. It ordered reunification services for both mother and father and ordered that both undergo a psychological evaluation for the purpose of identifying additional helpful services. If the psychological evaluation determined mother and father had developmental or mental disabilities rendering them incapable of utilizing reunification services, a second psychological evaluation would be required. A six-month review was set for May 7, 2015, with a progress review hearing February 10, 2015.
Six-Month Review
The report prepared for the six-month review recommended reunification services be continued for both mother and father. Mother had begun a substance abuse treatment outpatient program in September of 2014, but was discharged a month later, due to alcohol use. She entered a residential treatment program in December of 2014, and completed the program in February of 2015. She was, at the time of the report, living in a clean and sober facility and attending day treatment. Mother was visiting Elena three hours each week and the visits were going well.
On May 7, 2015, the juvenile court continued Elena as a dependent and extended services to both parents, finding mother’s progress good and father’s minimal. The social worker was given discretion to allow mother day-long visits at her living facility, leading to overnight visits. A 12-month review hearing was scheduled for October 20, 2015.
12-Month Review
The report prepared in anticipation of the 12-month review recommended services be terminated for both parents. Mother had suffered another relapse shortly after the six-month hearing and was sent back to residential treatment at the beginning of June 2015. She completed an additional 30 days of residential treatment and re-entered the sober living facility and outpatient program. She had completed parenting and anger management classes.
Mother also completed a psychological evaluation, in which the psychologist described mother as a “passive, dependent woman with very limited intellectual functioning.” According to the psychologist, this combination limited her capacity to fully understand and benefit from reunification services. The psychologist opined that mother did not have “the capacity to maintain an independent, thoughtful and proactive lifestyle in the absence of the enforced structure she is currently embracing.” A second evaluation was in process.
Father completed parenting group classes, but had done little else on his plan.
Mother continued to have twice weekly visits with Elena, which were going well. Elena continued to live with her paternal aunt, Veronica, along with her sister, Sabrina, and was developing at a normal rate.
A second psychological evaluation on mother, completed October 15, 2015, found she had an IQ of between 76 and 83. The psychologist opined that, while “time will tell whether she is capable of benefiting from what is being provided through her reunification program, there is nothing in the psychological evaluation results to accurately predict that she is incapable of benefiting from the reunification plan.” The psychologist recommended continued reunification services for mother.
At the 12-month review hearing November 23, 2015, in light of the psychologist’s report, the agency changed its recommendation and asked that reunification services be continued and asked for discretion to begin a trial visit with mother. The recommendation to terminate services for father remained. Reunification services were continued for mother and terminated as to father. An 18-month review was set for February 17, 2016.
18-Month Review
The 18-month review report, filed February 1, 2016, requested a 90-day continuance because Elena had been placed on a trial visit with mother at her living facility a week earlier. Mother had completed all other elements of her plan. The continuance was granted.
A report filed for the continued 18-month review hearing scheduled for May 17, 2016, requested custody of Elena be returned to mother with family maintenance services. While mother was still living at the treatment facility, she was taking steps to transition to independent housing. On May 17, 2016, Elena was returned to mother’s custody, with visits to father. A section 364 six-month review was scheduled for November 7, 2016.
Section 387 Supplemental Petition
Four months later, on September 27, 2016, the agency filed a section 387 supplemental petition alleging mother, who was still not in independent housing, was discharged from her living facility. She had returned to her living facility under the influence of alcohol, and was agitated when asked about it. She was tested and found to have a .08 blood-alcohol level. There were further concerns that Elena had been seen with head lice, bad diaper rash and eczema. Mother told the investigating social worker that she, with Elena in tow, stopped off at a store, bought three Coronas and took the beer to the park to drink it in order to cope with the stress of doing chores at the living facility. Elena’s aunt, Veronica, opined that mother had been drinking for months and Elena needed a secure permanent living arrangement. Elena was detained September 28, 2016.
The report prepared for the section 387 supplemental petition recommended no more services be provided mother, who had already exceeded the maximum allotted amount of services. Mother was now back in inpatient treatment and, after a blackout period, was again allowed to visit with Elena. While mother’s interactions with Elena were generally good, there were times when Elena cried for long periods and mother could not console her. Elena did stop crying and seemed at ease when she was returned to the foster parent.
On October 25, 2016, Veronica was approved to regain placement of Elena, and the child was returned to her the following day.
On January 10, 2017, the juvenile court found the section 387 supplemental petition true, again removed Elena from mother’s custody, and declined to offer further services. A section 366.26 hearing was set for April 11, 2017.
Section 366.26 Selection and Implementation Hearing
The report prepared in anticipation of the section 366.26 hearing recommended termination of parental rights and the permanent plan of adoption of Elena by paternal aunt Veronica as the preferred plan. Elena was healthy and her growth had caught up with her age. She was diagnosed with speech delays and eligible for regional center services. Veronica wished to adopt Elena if given the opportunity to do so. Veronica had been meeting Elena’s needs for her entire life and wished to continue doing so.
Mother’s monthly visits were mostly going well, although Elena cried for an extended time at one of the visits.
At the May 22, 2017, section 366.26 hearing, mother provided no testimony, but made an offer of proof that she loved Elena, had not missed a visit, and at the beginning of visits, Elena would greet her with a smile and say, “mommy, mommy.” During visits, the two played with toys, some educational. Mother did not wish to lose her parental rights and wanted another chance to be “Elena’s mother.” Father, through an offer of proof, consented to the current placement.
The juvenile court found that, while it was a “sad outcome” for mother and father, it was reassuring to know Elena was with someone whom she was familiar with and loved her. The juvenile court then approved the adoption findings and recommendations of the agency, terminating mother and father’s parental rights.
DISCUSSION
Mother does not dispute that Elena was adoptable. Instead, she argues her parental rights were wrongly terminated because the juvenile court failed to apply the parent-child beneficial relationship exception to adoption. We disagree.
Beneficial Parent–Child Exception to Adoption
After reunification services are terminated, “‘the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) A hearing under section 366.26 is held to design and implement a permanent plan for the child. At a section 366.26 hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) One of these statutory exceptions is the beneficial parent-child relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights if “[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 burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception, the juvenile court must choose a permanent plan other than adoption if it finds the beneficial relationship to be “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, at p. 1315.)
Standard of Review
We acknowledge the parties’ discussion in their respective briefing regarding the split of authority as to whether the substantial evidence standard, the abuse of discretion standard, or a hybrid standard applies in reviewing the juvenile court’s rejection of exceptions to adoption. (See Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315 and In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [hybrid combination of substantial evidence and abuse of discretion standards; applying substantial evidence test to determination of existence of a beneficial sibling relationship and the abuse of discretion test to issue of whether that relationship constitutes a compelling reason for determining termination would be detrimental to the child]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [substantial evidence test: “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order”]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion test] (Jasmine D.).)
Under any of these standards of review, our conclusion in this case would be the same because the practical differences between them are “not significant,” as they all give deference to the juvenile court’s judgment. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) “‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’”’” (Ibid.) Similarly, a substantial evidence challenge to the juvenile court’s failure to find a beneficial parent-child relationship cannot succeed unless the undisputed facts establish the existence of that relationship, since such a challenge amounts to a contention the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; see Bailey J., supra, 189 Cal.App.4th at p. 1314.)
Applicable Law and Analysis
In deciding whether the beneficial parent-child relationship exception applies, “the court balances the strength and quality of the natural parent/relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “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.” (Ibid.) The parent-child relationship must “promote[ ] 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.)
A parent claiming the applicability of the parent-child relationship exception has the burden of proof. (In re C.B. (2010) 190 Cal.App.4th 102, 133.) “[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.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350; see Celine R., supra, 31 Cal.4th at p. 53.)
The parent-child relationship 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.” (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent.” (Id. at p. 1350.) Even a “loving and happy relationship” with a parent does not necessarily establish the statutory exception. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)
“The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) “[T]he Autumn H. language, while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact.” (Ibid.) “Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction.” (Ibid.)
The agency does not dispute that mother maintained regular visitation with Elena. But in order to demonstrate Elena would benefit from a continued relationship with her, mother needed to demonstrate that maintaining the parent-child relationship would promote Elena’s well-being, outweighing the emotional benefits she would gain in a permanent home with adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In determining whether the relationship between parent and child is beneficial, we look to such factors as “(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.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) The juvenile court’s conclusion that mother did not satisfy the second prong of the exception “turns on a failure of proof at trial, [such that] the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
Elena was removed from mother’s custody at birth, and mother’s parental rights were terminated when Elena was two years and nine months old. During her life, Elena lived with mother for eight months (between the ages of 17 and 25 months). The remainder of her nearly three years, Elena lived with and was cared for by Veronica.
Mother’s interactions with Elena were generally positive. Mother points to numerous ways she positively parented Elena: by providing hands-on care for her, singing to her, changing her diaper, bathing her, preparing food for her and feeding her, guiding her as she learned to walk, and teaching her to say words. During extended overnight visits, mother was said to be “really good at meeting Elena’s needs and making sure she had all she needed.” Mother claims a strong parental relationship continued even after Elena was again removed, as Elena continued to smile and hug mother and to go to her willingly.
However, frequent and loving contact with a child does not necessarily establish the existence of a benefit for continuing the parent-child relationship. (Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Mother must also demonstrate she occupies “‘a parental role’” in Elena’s life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) Mother contends this parental role was maintained through her meaningful visits with Elena. According to mother, she has been shown to be able to provide “love, kindness, and an affable and friendly nature, even though her limited intellectual functioning may not allow her to provide full-time care.”
Mother is not asking that Elena be returned to her custody, and acknowledges that she might not ever be able to provide full-time care for her. But the Legislature has decreed that guardianship or long-term foster care (the available options for Elena at this point) are not in the best interests of a child who cannot be returned to her parents. Instead, a child such as Elena can be afforded the best possible opportunity to get on with the task of growing up by being placed in the most permanent and secure alternative that can be afforded her. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, “‘Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’ [Citation.]” (Beatrice M., supra, 29 Cal.App.4th at p. 1419.)
The juvenile court’s conclusion that severing the parent-child relationship in this situation would not deprive Elena of a substantial, positive emotional relationship such that she would be greatly harmed did not exceed the bounds of reason. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) While we commend mother’s efforts and progress, this is not a case in which “the undisputed facts established the existence of a beneficial parental … relationship.” (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Accordingly, we find the juvenile court did not err in terminating mother’s parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.