Filed 3/29/18 In re M.H. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



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

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

T.G.,

Defendant and Appellant.
D073150


(Super. Ct. No. J519018)

APPEAL from a judgment of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
This is a second appeal by T.G., who challenges the 2017 juvenile court judgment terminating her parental rights to M.H. and selecting adoption as his permanent plan. (Welf. & Inst. Code, § 366.26; all further statutory references are to this code unless noted.) A previous similar judgment was reversed in a nonpublished opinion, on T.G.'s appeal of the November 2016 parental rights termination order and permanent plan of adoption. (In re M.H. (May 24, 2017, D071503) [nonpub. opn.] [our prior opinion].) This court concluded that the previous finding was unsupported by substantial evidence, on likelihood of adoption within a reasonable time, in light of the thrust of the reports and assessments prepared by respondent San Diego County Health and Human Services Agency (Agency). We accordingly reversed the judgment terminating parental rights and its related finding that the parent-child beneficial relationship exception did not apply. (§ 366.26, subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)
On remand, the juvenile court was instructed to order the Agency to file an assessment report that fully comported with statutory requirements, and proceed to a new section 366.26 hearing. This was done and in November 2017, the court entered a judgment terminating all parental rights, concluding that no exception to adoption preference applied, i.e., the beneficial parent-child relationship. T.G. now contends the court erred in finding her relationship with M.H. was more analogous to one between relatives or family friends, and not a true parent-child relationship. She claims the evidence fails to support the judgment severing her parental relationship.
The record does not show any lack of supporting evidence for the judgment, or any abuse of judicial discretion, and we affirm.
I
BACKGROUND FACTS FROM PRIOR OPINION
A. Jurisdiction
M.H. came to the attention of the Agency at his birth in July 2014, when hospital staff reported to its representatives that they had concerns about his safety in T.G.'s care, with regard to feeding and caregiving. As outlined in our prior opinion, T.G. has been diagnosed with a mental health condition, bipolar disorder and polysubstance abuse. At the hospital, T.G. was observed to be uncooperative and, at times, "borderline combative" with hospital staff.
The Agency filed a petition alleging that T.G. was unable to provide regular care to M.H. because of her mental health condition and substance abuse history, reportedly daily marijuana use. (§ 300, subd. (b).) T.G. resisted telling hospital staff and the Agency social worker about her mental health condition, anticipated living situation, home address or support network. The alleged biological father, A.H., left T.G. when she became pregnant, and had not returned. She had previously given birth to three other children, one stillborn and two others who died when less than a month old.
Following investigation, M.H. was taken into protective custody and detained with nonrelative extended family members (NREFM). The Agency's jurisdiction report recommended that a dependency case be established for M.H.
On July 30, 2014, the court sustained the petition and removed M.H. from parental custody, ordering family reunification services for T.G., including a parenting education program, substance abuse testing, a psychological evaluation and, if recommended, a medication evaluation. She began an inpatient substance abuse program, leaving after six weeks but continuing to see a psychiatrist every month and take medications. T.G. was allowed weekly supervised visits with M.H. The alleged biological father was listed online as a registered sex offender.
In September 2014, the NRFEM reported that they could no longer care for M.H. because of T.G.'s verbally abusive behaviors, and he was moved to a foster care home. About the same time, T.G. assaulted A.H. at his home and was arrested. A restraining order was issued and she was placed on probation. The criminal court ordered her to stay on her medication, complete a 52-week domestic violence prevention group, and have no contact with A.H.
B. Review Hearings through 18 Months; Reunification Services Terminated
As of January 2015, the social worker reported that T.G. was engaged in services and that visitation was going well. T.G. was very loving with six-month-old M.H. and encouraged him to improve his motor skills, which were below developmental norms. The social worker said that M.H. responded well to his mother and was always excited to see her. Both T.G. and M.H.'s foster mother expressed concerns about his motor skills and development, and he was referred to a "High Risk Infant" clinic for a full developmental assessment. This resulted in referrals to neurology, ophthalmology, occupational therapy and an early start program.
In mid-2015, M.H.'s court-appointed special advocate (CASA) reported that M.H. was a charming baby who was displaying some signs of developmental delays in crawling and standing. He had a difficult time leaving T.G. after visits.
Beginning in March 2015, T.G.'s visits with M.H. were unsupervised, and by April, she was caring for M.H. on weekends by herself. By July, M.H. was in T.G.'s care half-time, and a 60-day trial visit was being planned. The Agency noted T.G. was sporadically complying with her medication evaluations and drug testing. Social workers informed an angry T.G. at a meeting that her overnight visitation for that weekend was suspended. The Agency agreed to continue overnight visitation but reduced visitation by one night a week until T.G. complied with her case plan.
As of the time of the 12-month review hearing in August 2015, the social worker remained concerned about T.G.'s lack of compliance with some aspects of her care plan, but said there was no evidence that M.H. was not safe with her. T.G. demonstrated a parental role with M.H. during visits. Overnight visitation was continued and the court extended family reunification services to the 18-month hearing.
From September 2015 to December 2015, T.G. participated in a dual diagnosis program and attended her domestic violence program regularly. She was referred to self-help groups. In September 2015, T.G. was arrested and jailed for three weeks for her sixth violation of the no contact order with A.H.
From October to November 2015, the Agency pursued a modification petition to disallow T.G.'s unsupervised visitation. In a settlement, a safety plan was arranged to allow T.G. to have two-hour unsupervised visits with M.H. twice a week in a public setting. In February 2016, A.H. obtained a dismissal of the protective order he had obtained, saying it was no longer necessary. In March 2016, he requested that he be represented by counsel to obtain a paternity test.
By March 2016, the social worker said T.G. was becoming increasingly volatile and verbally abusive in communicating with the social worker and some of the service providers. T.G. would not verify to social workers that she was using her psychiatric medicine. She did not want to sign the papers for M.H. to receive the developmental services recommended for him in December 2015. The Agency resumed supervision of her visitation.
The 18-month review hearing was continued from January until April 2016. The social worker evaluated M.H. as a happy baby who was walking but having difficulty with his balance. He had a flat demeanor and his speech was limited. The occupational therapist said that M.H. did not move his head very much and appeared "under responsive." M.H. was placed on a waiting list for California Early Start. T.G. was concerned about his development and demonstrated a parental role with him during visits. She said she could motivate him to do most things, but it seemed to her as if "something is not registering in his brain."
Generally, T.G. was receiving positive evaluations from service providers, but she had problems communicating with the social worker in a calm manner. T.G. had made violent threats against a female friend, who had obtained a restraining order against her in January 2016. M.H.'s CASA said T.G. was showing signs of instability, and supported terminating her reunification services.
Following the contested 18-month review hearing in April 2016, the court found that T.G. had not mitigated the problems that arose from her mental health condition. Rather, it appeared that those problems had increased during recent months before that hearing. Although reasonable services had been provided, T.G. had not gained the insight that she needed to safely care for M.H. The court found it would be detrimental to return him to her parental custody. The alleged biological father, A.H., had moved to Arizona and was unavailable to parent. The court terminated reunification services and scheduled a contested permanency planning hearing under section 366.26.
C. First Permanency Planning Hearing; Appeal
M.H. received a developmental evaluation in May 2016, but in the fall of 2016, his developmental services were temporarily cancelled because he was not making sufficient progress. The service coordinator told social workers that it appeared M.H. was only motivated by food, and he might need more intensive services. He was referred to therapy to address recent tantrums he had in the foster home, and possibly his motivations or anxieties surrounding food.
The Agency prepared an assessment report for the November 2016 hearing. (§ 366.26.) After visiting with T.G., M.H. reportedly cried more than usual and had tantrums. An addendum report explained that T.G. became angry with the social worker during a scheduled visit in November 2016 and threatened to bring a bomb and blow up the visitation center after the next court hearing, which was scheduled to take place three days later.
Although M.H. had some developmental delays, the Agency evaluated him as generally adoptable. He had been in the same foster home since September 2014, but those providers were not interested in adoption, nor were any qualified relatives. There were possibly 18 to 30 approved homes interested in adopting a child like him.
At the November 2016 permanency planning hearing, T.G. argued the Agency had not shown he was adoptable, and further, it would be detrimental to M.H. to terminate her parental rights because of the existing beneficial parent-child relationship between them. At the conclusion of the hearing, the court found that M.H. was adoptable and that maintaining a relationship with T.G. would not substantially benefit him. The court found that although T.G. was loving and appropriate with M.H. during supervised visitation, she had not addressed her mental health issues. T.G. became so upset and aggressive that the court had her removed from the courtroom. The court ordered that all parental rights were terminated and a permanent plan of adoption was selected. Effectively, T.G.'s contact with M.H. was suspended after November 22, 2016.
In December 2016, T.G. appealed. On May 24, 2017, this court filed our prior opinion reversing the permanency planning orders, noting the record showed significant unanswered questions concerning M.H.'s developmental assessments, evaluations and status. The assessment report supplied had lacked important information about M.H.'s diagnosis, prognosis and future treatment needs. The record did not clearly indicate a substantial probability of adoption existed, within a reasonable time, if parental rights were terminated. We found it unnecessary to decide the beneficial parental relationship issues. The court was instructed to require the Agency to submit an adequate assessment report, in preparation for a new section 366.26 hearing.
II
SECOND PERMANENCY PLANNING HEARING
A. Postappeal Events
After the remittitur was received, the court rescheduled the section 366.26 hearing for September and then November 2017. The Agency prepared an updated assessment report in July 2017, informing the court that M.H. had been moved to a prospective adoptive home (designated the caregivers) in April 2017, after visiting there a few times. The therapist reported that since December 2016, M.H. had made significant progress in reducing his tantrum behaviors, such as when he was denied a snack. The caregivers had created a routine and structure, which was beneficial to him. The CASA visited the child in their home in May 2017, and got the impression that he was thriving there, since his coping skills and ability to express himself had increased dramatically. There were no current concerns about M.H.'s mental or emotional well-being, although he continued to participate in therapy. Due to the significant progress he had made recently, he no longer qualified for services at the San Diego Regional Center.
While the hearing was pending, the caregivers requested permission to move out of the county in September 2017 for career reasons. The court granted the request but required the Agency to arrange an in-person visit for T.G. before they left, and twice weekly electronic Skype visits thereafter.
The court considered ordering DNA paternity testing for the alleged biological father, A.H., but found it was not necessary, unless he came forward. The Agency was required to prepare another assessment report and social worker K.R. did so in September 2017. She informed the court that M.H.'s therapist released him at the end of July 2017, as no longer needing mental health treatment. He would soon be receiving speech therapy through the school system, with the caregivers' assistance, and they were enrolling him in child development services there.
The September 2017 assessment report described the visitation history, including an August 10, 2017 visit, the first one since November 2016. The child's therapist was present, as was the social worker, who said M.H. had cried when put in the car to go to visitation. When T.G. joined M.H. in the playroom, M.H. appeared tense and cried when she picked him up and greeted him. They sat and cried together and then M.H. fell asleep. T.G. woke him up toward the end of the visit and he started crying again. The prospective adoptive mother said he showed separation anxiety and toileting problems after the visit. If that adoptive placement did not work, there were 37 available approved families for such a child.
B. Evidence at Hearing
At the second contested section 366.26 hearing in November 2017, the court received into evidence the assessment and addendum reports by the social worker and by the CASA. According to the Agency, it would not be detrimental to M.H. if T.G.'s parental rights were terminated, since their relationship did not rise to a beneficial level. On balance, the Agency believed that M.H. was likely to benefit more from a permanent plan of adoption than from maintaining a relationship with T.G.
Social worker K.R. testified that when seeking prospective adoptive families, the Agency had disclosed that M.H. had an individualized education plan for speech needs, and that he had a parent with mental health and substance abuse issues. Such screening by the Agency did not include mention that M.H. had earlier been diagnosed with an anxiety disorder, because it was the child's current level of functioning that was being presented. However, she had discussed with the prospective adoptive family that there was a possibility that M.H.'s past behaviors could recur, although he had made improvements through treatment and in his new placement. She had not observed any visits between M.H. and his mother, instead relying on reports from other social workers.
T.G. testified she wants to continue to be a part of M.H.'s life, through visitation twice a week. She described the August 10, 2017 visit as showing she was able to comfort him when he cried over their separation. She understood that M.H. was confused about whether she or the caregiver was the mommy. The Skype visits were generally going well, although M.H. had trouble holding still in front of the stationary computer and wanted to show her his toys.
Counsel for M.H. agreed with the Agency that although he and T.G. do have a relationship, M.H. would not likely benefit from maintaining that relationship in such a manner as to outweigh the consistency and permanency that adoption would provide to him.
At the close of the hearing, the court acknowledged that T.G. had maintained contact with M.H. to the best of her ability under the circumstances. However, the relationship they shared was more analogous to that between relatives or family friends than a true parent-child relationship. In evaluating the respective showings, the court found the prospective benefit M.H. would receive from a permanent plan of adoption outweighed any benefit he would receive from maintaining a relationship with T.G. The court terminated parental rights and referred M.H. to the Agency for adoptive placement. T.G. appeals.
III
BENEFICIAL RELATIONSHIP EXCEPTION TO ADOPTION PREFERENCE
The permanency planning process aims "to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker." (In re Emily L. (1989) 212 Cal.App.3d 734, 742.) The primary consideration at the hearing is the best interests of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) Unless there are exceptional circumstances in this process, the court's first choice will be termination of parental rights and placement for adoption. (§ 366.26, subd. (b)(1).)
Once a parent's reunification services are terminated and the juvenile court has found that the child is likely to be adopted, the burden shifts to the parent to show statutorily enumerated exceptional circumstances are present. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853-854.) For the asserted circumstance, the beneficial relationship exception to adoption, the court must find "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B); In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) The court considers the detriment issue on a case-by-case basis and takes into account the many variables that can affect the parent-child relationship. (Autumn H., supra, 27 Cal.App.4th at pp. 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532 (J.C.).) Applicable factors include the child's age and amount of time spent in the parent's care, and whether the interactions have been positive or negative. (In re Angel B. (2002) 97 Cal.App.4th 454, 467 (Angel B.).) Whether the child has particular needs that the parent can best satisfy is important. (Ibid.)
As explained in In re Casey D. (1999) 70 Cal.App.4th 38, 51, a strong and beneficial parent-child relationship is one "characteristically arising from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship." Where a child is in out-of-home care, the court does not quantify the amount of parental care provided, but must analyze the benefits of continued contact between parent and child within the context of the visitation allowed. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
This court in In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.) applied a substantial evidence standard of review to the factual issues about the existence of a beneficial parental relationship, including regular visitation and contact with the child. On those factual issues, we make presumptions in favor of the judgment, while viewing the evidence in the light most favorable to the Agency and giving the judgment the benefit of all reasonable inferences. (C.F., supra, 193 Cal.App.4th at p. 553; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) At the second permanency planning hearing, the court acknowledged that under the circumstances, T.G. had met this first requirement of the test, by pursuing visitation and contact to the best of her ability.
We accordingly focus on the portion of the statutory test for evaluating whether there is "a compelling reason for [determining] that termination would be detrimental to the child," and apply an abuse of discretion test. (Anthony B., supra, 239 Cal.App.4th at p. 395.) The necessary weighing process under section 366.26, subdivision (c)(1)(B)(i) involves the juvenile court's discretionary balancing of the significance and strength of the parent-child relationship against the benefits the child would derive from adoption. (J.C., supra, 226 Cal.App.4th at pp. 530-531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
IV
APPLICATION OF CRITERIA: NO SUBSTANTIAL AND SIGNIFICANT BENEFIT
T.G. asserts she has proved the applicability of the second prong of this exception, that her parent-child relationship with M.H. was so beneficial and loving that termination of her rights would be detrimental to him. (§ 366.26, subd. (c)(1)(B)(i).) She focuses not only on the original opposition she raised before the appeal, but also on the subsequent events. Since we have not decided this issue before, we examine the entire record developed about the nature of their parent-child relationship, and whether it is sufficient to preclude adoption. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
In the current assessment report, M.H. was evaluated as likely to be adopted, either by the caregivers or other approved families wishing to adopt a child with such characteristics. T.G. does not challenge that conclusion in terms of the adequacy of the report, as in her first appeal. She instead contends that the court erred when it found that the beneficial parent-child relationship exception to termination of parental rights did not apply. She acknowledges that since she and M.H. have lived apart, it is difficult for her to supply evidence on the strong and beneficial relationship requisite for this exception. (§ 366.26, subdivision (c)(1)(B)(i).) However, as explained in Casey D., supra, 70 Cal.App.4th at page 51, there are cases in which such a beneficial relationship can be proven to exist, such as where it is demonstrated that an older child and the parents have shared experiences, companionship and day-to-day interaction.
Here, the record shows T.G. stayed in touch with the Agency throughout the proceedings. She points to the determination she has always shown to provide love and nurture to her son. She exercised her visitation rights consistently, and early in the case, on an unsupervised basis. When M.H. was referred to the high risk infant clinic and to the program Kid Start, she attended his appointments. Currently, T.G. does not claim she was able to provide adequate and stable care for M.H. at the relevant times, or at present. She argues only that her continued relationship with M.H., through twice weekly visitation, would benefit him to the extent that he would be better off, than if adoption were ordered. (Autumn H., supra, 27 Cal.App.4th at p. 574.)
For the asserted beneficial relationship exception to apply, a parental relationship must be shown, not only a friendly or familiar one. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The existence of such a relationship is determined by taking into consideration "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
T.G. contends that it is a gloss on the language of section 366.26, subdivision (c)(1)(B)(i), and an unduly strict reading of Autumn H., supra, 27 Cal.App.4th at page 575, to require her to show, at this phase of the proceeding, that the parent-child relationship is such that M.H. would be "greatly harmed" by the termination of parental rights, in order for her to overcome the presumption in favor of adoption. We agree with the analysis of this point in In re Brittany C., supra, 76 Cal.App.4th 847, as follows: "Autumn H.'s requirement that the parent prove that the child would be greatly harmed by termination of parental rights must be seen in context. Where a parent has failed to reunify with his or her child, and the juvenile court has found that the child is likely to be adopted, then the burden shifts to the parent to show exceptional circumstances. [Citation.] To require that the parent need only show some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law, that is, the protection of 'children who are . . . abused, neglected or exploited. (§ 300.) Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home.' " (Id. at p. 853; italics added.)
In this light, it is important to note that over time, T.G.'s participation in a parental role during mostly supervised visitation was fairly limited and did not obviously develop and enhance the parent-child relationship. The record is somewhat problematic in showing that the interaction between T.G. and M.H. conferred even incidental benefits on him during visitation, at least as of the time of two November 2016 visits. At the earlier November 2016 visit, the social worker reported that M.H. was struggling with leaving the caregiver when departing to go to visitation, and he slapped the social worker in the face twice at the end of one visit. The second November 2016 visit culminated in T.G.'s threats to Agency and visitation center staff members, shortly before the first permanency planning hearing. T.G. was holding M.H. in her arms while she argued with the social worker about who was going to take M.H. home, since she had already argued with another staff member. After that, the difficult circumstances described in the August 2017 visitation took place, when M.H. became overwhelmed, crying and sleeping during the visit. The current record does not support a conclusion that there is "a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
Moreover, the record shows that after his placement with the caregivers in April 2017, M.H. had been able to overcome some of his problematic behaviors and had grown in some positive ways. His special needs were not shown to be such that only T.G. could satisfy them. (Angel B., supra, 97 Cal.App.4th at pp. 467-468; Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) In contrast, T.G.'s mental health and social problems were consistently shown to be of such a nature as to make it unlikely for her to be able to occupy a uniquely parental role in M.H.'s life, even within the visitation context. (Ibid.; see In re Brittany C., supra, 76 Cal.App.4th at p. 854 ["Where a biological parent, such as appellant, is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent."].)
T.G. further asserts that she was effectively penalized for exercising her right to appeal the first termination judgment, through the suspension of her visitation while the appeal was pending. During that time period (from Dec. 2016-May 2017), M.H. was placed with the prospective foster parents, who were later allowed to move out of the county. T.G. argues that not all of the August 2017 visit was unsuccessful, although M.H. was understandably overwhelmed by the visit after they had been apart for so long. In any case, T.G. believes that "[a]s a practical matter, the Agency and the juvenile court combined to unfairly to deprive [T.G.] of the fruits of a favorable determination on appeal."
Although it is regrettable that the six-month lapse of time during the first appellate process effectively suspended T.G.'s visitation, we cannot agree with her that the termination of parental rights in this case amounts to a miscarriage of justice. (See, e.g., In re Richard E. (1978) 21 Cal.3d 349, 354-355 [failure to appoint counsel for a minor in parental termination of rights proceeding did not require reversal, in the absence of a miscarriage of justice].) As of the time she filed her appeal at the end of 2016, the record shows that she was already unable to cooperate with visitation regulations and parameters. In any event, the court was entitled to credit the assessments, conclusions and documentation of the social workers, about the ongoing nature of the problems T.G. continued to face in developing her ability to parent effectively. (In re Casey D., supra, 70 Cal.App.4th at p. 53.) The appellate delay and suspension of visitation alone were not dispositive.
Even assuming that this suspension of visitation had an adverse effect on T.G.'s ability to show the benefits of her relationship with M.H., the juvenile court had the duty to evaluate the entire record to determine whether the benefits that M.H. was deriving from continuing contact with T.G. were clearly significant or substantial. (Autumn H., supra, 27 Cal.App.4th at pp. 575-576; C.F., supra, 193 Cal.App.4th at pp. 558-559.) The record supports the court's conclusions that her parenting behavior conferred, at most, incidental benefits on M.H., while adoption would best promote the statutory purposes of supplying stability and permanence to him. (§ 366.26, subd. (b)(1).) The court did not abuse its discretion when finding that the beneficial relationship exception to adoption did not apply to these parties. (Autumn H., supra, at pp. 575-576; Anthony B., supra, 239 Cal.App.4th at p. 395.)
DISPOSITION
The judgment is affirmed.


HUFFMAN, J.

WE CONCUR:



McCONNELL, P. J.



HALLER, J.