Filed 6/19/18 In re M.G. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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A.K., mother of the minors A.G., C.G., and M.G., appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.)[1] She contends the juvenile court erred in failing to find the beneficial parental relationship exception to adoption applied and in finding the minors adoptable. Finding the exception did not apply and the minors were generally adoptable, we shall affirm.

I. BACKGROUND

On December 1, 2015, A.G. (born January 2011), C.G. (born December 2011), and M.G. (born April 2013) were placed in protective custody following an incident in which mother got into a verbal argument with father, and tried to run him over with a car in which the minors were passengers.[2] Law enforcement officers found the minors wandering unrestrained through the car and playing with scissors. The interior was extremely filthy and with no seats. The minors had defecated on themselves and were shoeless. Feces was found in the car. Mother said she was assaulted by father but there were no signs of injury to her. Mother told officers she had psychiatric problems and asked to be checked into a mental health hospital. Father was arrested on outstanding drug warrants and mother was arrested for felony child endangerment.

A.G. told a social worker that mother once took them to the children’s receiving home after father put a knife to mother’s throat and tried to kill her. She asserted the parents fought every day and every night, and recalled how father threw items such as a scooter and vacuum cleaner at mother. Her parents got very loud when they fought and A.G. did not feel good when this happened. C.G. told a social worker that her parents fought all the time.

Mother told a social worker she was diagnosed with borderline personality disorder and depression, and was compliant with the medication for her mental health. She denied currently using drugs but admitted using methamphetamine, marijuana, and alcohol two years ago. She thought father was using methamphetamine, and had allowed him to come into the house on Thanksgiving when he asked to be with the children. Mother and father fought for the three days before the incident after she refused his demands for oral copulation. On October 1, 2015, father held a knife to her neck and tried to poke the vehicle mother was in with the children, and also threw a scooter at her.

Mother’s child welfare history includes substantiated referrals for general neglect, and for caretaker absence and incapacity as to the minors’ half-sibling. In January 2014, the minors were adjudged dependent children based on allegations of domestic violence between the parents, father’s drug abuse, and mother’s mental health issues. The minors were later returned to their parents’ care and the case was terminated in January 2015. In December 2015, the Sacramento County Department of Child, Family and Adult Services (the Department) filed a dependency petition (§ 300) alleging jurisdiction over the minors based on domestic violence, general neglect, father’s drug abuse, and mother’s mental health issues. The juvenile court detained the minors the day after the petition was filed.

The December 2015 jurisdiction and disposition report noted an interview with mother in which she related a history of domestic violence with father that started shortly after their relationship began in 2009. She reported father would get high on methamphetamine and start assaulting her. While mother was arrested for felony child endangerment, charges had been reduced to a misdemeanor according to mother. She admitted her children were not in car seats when she was arrested following the incident that precipitated the dependency action. Mother also agreed that father’s substance abuse placed the minors at risk. A review of mother’s psychiatric records indicated she was diagnosed with borderline personality disorder, major depressive disorder, and anxiety disorder not otherwise specified.

M.G. was too young to be interviewed. C.G.’s speech was unintelligible and slurred. She was not interviewed in light of her age and development. When asked why she was in foster care, A.G. said it was because her parents got into another fight. A.G. told the social worker her parents would yell very loud and mother would cry, and that the minors were in the living room or their room during the fights. The interview ended when A.G. appeared to be getting “fragile.”

The minors’ caretaker reported M.G., C.G. and A.G. had severe behavioral problems. Both C.G. and A.G. would wipe spit all over the furniture, the other children, and themselves. They also had to be continually redirected to stay in their safety seat when being driven. M.G. would spit on her siblings, the car windows, carpet and herself. M.G. would attempt to open the car door while it was in motion. The caretaker gave a seven-day notice to terminate placement.

A.G. was found unresponsive in the foster home on January 30, 2016, after being found hanging from a curtain cord. She was assessed as showing clinical evidence of anoxic brain injury. An MRI indicated she was normal, with no evidence of anoxic brain injury and no sign of brain damage or seizure. However, A.G. had severe cognitive impairment and was receiving three hours of inpatient rehabilitation per day. The child would need ongoing supervision after discharge, and was scheduled for ongoing rehabilitation for mobility, speech, and fine motor tasks.

In March 2016, the juvenile court sustained the petitions, with reunification services for mother and services bypassed for father pursuant to section 361.5, subdivision (b)(13).

A June 2016 report from the Department related that mother said she had not lived with father for about a year and had filed for divorce in January 2016. Mother was working on her services. Her domestic violence counselor reported mother was doing well. Visitation was regular and no concerns were reported.

Mother filed a request for a restraining order against father in July 2016. A temporary restraining order was issued later that month, but was withdrawn in August 2016 because father’s whereabouts were unknown and he had not tried to contact mother.

The September 2016 report from the Department stated the minors were placed together in a foster home in March 2016. They were thriving and doing well under the care of their new foster parent.

In March 2016, mother’s neighbor called law enforcement reporting a domestic violence incident between her neighbor and her neighbor’s boyfriend. The boyfriend punched the victim in the face and pulled her hair. In April 2016, mother called law enforcement to report that a male was trying to hit her with a tire iron. Dispatch could hear at least three voices on the line during a heated verbal argument, and it appeared that someone was destroying the home.

Mother was asked about the two reported incidents by a social worker in August 2016. At first she could not recall the March incident and only vaguely recalled the April one, but after prodding from the social worker, related that the April incident involved a friend of father’s family who had helped mother and the minors in the past. Mother became highly upset during the conversation, exploding in an outburst in which she said she was being penalized for calling law enforcement. Although the social worker did not feel physically threatened, mother’s temperament when speaking raised the alarm of others. Mother called to apologize later in the months, but quickly became agitated when the social worker explained the need to investigate the incidents. Her one-sided rant became so out of control that the social worker had to discontinue the conversation.

Mother was participating in her classes but had not completed them. Her individual counselor said she had made tremendous growth. Mother’s therapist was concerned about the recent domestic violence and shared the Department’s concerns about mother’s erratic and temperamental response to the social worker.

On February 18, 2016, A.G. was released from the hospital, referred to speech therapy, and prescribed Ritalin to assist with her short-term memory. Ritalin was discontinued as no longer necessary following a June 16, 2016, medical exam. Following a July 14, 2016, visit with a speech pathologist, it was determined she would not need as much treatment as initially thought. At the time of the report, A.G. had made impressive progress and continued to improve.

All three minors were on track developmentally and on target to have normal physical development. They had been assessed for therapeutic services in April 2016, and found not to need any. C.G. and M.G. were thriving in the Sacramento area preschool they were attending. C.G. would have a speech assessment in the upcoming school year.

An October 2016 report related a September 2016 interview between mother and the social worker. Mother said she was in contact with father again; in the past week at her home, there had been two domestic violence incidents in which the police were called. She started seeing father again after contacting him via Facebook and then meeting him in a motel in August 2016. Mother believed father was still using drugs and he continued to come to the home, often unannounced. Both of the incidents involved strangulation, which led to police being dispatched to mother’s home in the first instance, and to another location in the second after she fled the home.

The Department concluded mother’s love for the minors should not be minimized, and recognized the family was bonded, but nonetheless found mother’s continued domestic violence history could not be negated. It recommended terminating services and setting a section 366.26 hearing.

In March 2017, minors’ counsel filed a request to appoint counsel for A.G. and C.G. to investigate a potential personal injury claim stemming from the incident in which A.G. was found hanging from a curtain cord. The request alleged that the incident report showed A.G. suffered an anoxic brain injury and C.G. witnessed the event and suffered emotional distress as a result. The juvenile court granted the request and appointed counsel for A.G. and C.G.

The March 2017 selection and implementation report related that the current caregiver described M.G. as an outgoing and smart child, and had no concerns about the child’s emotional development. The caregiver found C.G. was independent and had no concerns about this child as well. C.G. sometimes recounted the traumatic incident involving A.G. A.G. was outgoing and social according to the caregiver. She was a smart child and the caregiver had no concerns about A.G.’s development.

Mother was approved for six hours a week of visits in March 2016, and visited consistently. Visitation was increased to 2 four-hour visits per week in July 2016. Weekly unsupervised overnight visits were approved in August 2016. Mother stopped visiting consistently in January 2017 due to scheduling conflicts with her parenting classes. Her visits with the minors had been positive and appropriate. There were no negative responses for behavioral issues from the minors after having contact with mother.

The plan for the minors initially was for guardianship but was changed to adoption in light of their young ages. The caregiver had not expressed an interest in adoption, but was willing to assist the Department in finding an adoptive home. When the social worker proposed adoption with the current caregiver, A.G. became tearful and said she wanted to return to mother and did not want to live with the caregiver “forever.” After further discussion, A.G. said she liked her current placement. C.G. and M.G. each said they would like to live with the current caregiver if they could not live with mother or their grandmother.

The Department found the children to be generally adoptable. They were in good health and meeting developmental milestones, although placement could be more difficult as they were a sibling set. While C.G. had some developmental delay in her language skills, this was not an impediment to her adoptability.

A May 2017 report stated that the caregiver was now willing to adopt the minors. The minors liked their placement and the caregiver, describing her as “nice.” When discussing their relationship with their birth family, the minors expressed affection for the grandmother and shared little about mother. The caregiver noted that the minors appeared more connected with the maternal grandmother than with mother.

The juvenile court terminated parental rights at the September 2017 section 366.26 hearing.

II. DISCUSSION

1. Beneficial Parental Relationship Exception

Mother contends the juvenile court erred in failing to find the beneficial parental relationship exception to adoption. We disagree.

“ ‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

“One exception to adoption is the beneficial parental relationship exception. This exception is set forth in section 366.26, subdivision (c)(1)(B)(i) which states: ‘[T]he court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’ [Citation.] The mother has the burden of proving [the parent’s] relationship with the children would outweigh the well-being they would gain in a permanent home with an adoptive parent. [Citations.]” (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.)

“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)

The exception “must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

“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. [Citations.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) “ ‘[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.’ ” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

While mother maintained regular and appropriate visitation with the minors, she did not meet her burden of establishing that the minors’ relationship with her outweighed their interest in the permanency of adoption. The minors were comparatively young and spent a significant portion of their young lives out of mother’s care. They were happy and thrived in the care of the foster parent who sought to adopt them. While A.G. initially expressed a preference for living with mother, she later stated she would like to live with the prospective adoptive parent if she could not live with mother or the maternal grandmother. The minors showed no meaningful distress at being separated from mother, and their primary familial attachment was to the maternal grandmother rather than to mother. The record makes plain that there is insufficient evidence to demonstrate the benefit of a continued relationship with mother outweighed the well-being of the minors in a permanent home with their prospective adoptive parent. The juvenile court did not err in finding the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply.

B. Adoptability

Mother contends the juvenile court erred in finding the A.G. and C.G. were adoptable because A.G. suffered severe cognitive impairment as a result of being found hanging from the curtain cord and C.G. having developmental delay in language skills.

“A finding of adoptability requires ‘clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.’ [Citation.]” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) Generally, “the issue of adoptability [posed in a section 366.26 hearing] focuses on the minor, ‘e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.’ [Citation.] However, ‘in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.’ [Citation.]” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) In such cases, where the finding of adoptability is based on the existence of a prospective adoptive parent, “an inquiry may be made into whether there is any legal impediment to adoption by that parent [citation].” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)

We review the court’s finding of adoptability under the substantial evidence standard. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) “We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. [Citation.]” (In re Valerie W., supra, 162 Cal.App.4th at p. 13.)

While A.G. was initially diagnosed with an anoxic brain injury, her MRI was normal and showed no brain injury. As mother correctly points out, A.G. did have speech therapy as a result of the incident and was prescribed Ritalin to help with her short-term memory. However, A.G. improved significantly in a relatively short time. Ritalin was discontinued as no longer needed after a June 16, 2016, medical exam, and, after a July 14, 2016, visit with a speech pathologist, it was determined A.G. would not need as much treatment as initially thought. As of the September 2016 report, all three minors were on track developmentally and did not need therapy. The report also noted A.G. had made impressive progress and continued to improve.

C.G.’s speech was slurred and could not be understood in an interview before the jurisdictional and dispositional report. Nonetheless, when the minors were initially detained, C.G. was able to tell a social worker her parents fought all the time. The selection and implementation report did state that C.G. had some developmental delay in her language skills, but it would not affect her adoptability. Also, the prospective adoptive parent found C.G. was independent and had no concerns about this child as well. Mother’s critique that the Department needed to explain how C.G.’s speech delay did not affect her adoptability is misplaced. A delay in speech development that does not prevent the child from communicating with others, which evidently raised no concerns with the prospective adoptive parent, and would not be assessed until the school year, is not the sort of problem that requires further explanation.

The minors were relatively young, on track developmentally, displayed no significant behavioral problems, and had a prospective adoptive parent. There was no abuse of discretion in finding the minors generally adoptable based on this record.

III. DISPOSITION

The juvenile court’s orders are affirmed.

/S/

RENNER, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.