Filed 9/14/18 In re A.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Erin Alexander, Judge. Affirmed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.

Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for Plaintiff and Respondent.

Defendant and appellant T.B. (mother) challenges the juvenile court’s order terminating her parental rights with respect to her daughter, A.W. (child). She contends that the court erred by failing to apply the beneficial parental relationship exception to termination of parental rights, codified at Welfare and Institutions Code[1] section 366.26, subdivision (c)(1)(B)(i). We affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. Detention.

In January 2016, W.D., father of A.W. (born in 2010),[2] reported to his parole officer that mother abuses drugs, suffers from mental issues, and emotionally abuses the child, disciplining her by slapping her and hitting her with a belt on her face and head. A social worker with San Bernardino County Children and Family and Services (CFS) investigated the report and discovered domestic violence in the home (mother had suffered rib injuries), but mother refused any assistance. When mother was asked how she disciplined the child, she replied, “‘I pop her along side of her head.’” A search of criminal records revealed that father has a history of domestic violence and has repeatedly served time in jail, including two prison sentences for domestic abuse of a spouse. Mother also has a criminal history of violence and failure to comply. The child was removed from the home and placed in a confidential foster home.[3]

On January 26, 2016, CFS filed a dependency petition under section 300, subdivisions (b) and (c). The petition alleged that mother and father exposed the child to domestic violence incidents in the home, which caused emotional damage, and had records of domestic violence and substance abuse. Mother and father were in an off-and-on relationship for 11 years. They fought constantly, used drugs, and are no strangers to child protective services. At the January 27, 2016, detention hearing, the juvenile court found prima facie evidence to detain A.W. in foster care. The court ordered supervised visitation and random drug testing.

B. Jurisdiction/Disposition.

In the jurisdiction/disposition report filed on February 16, 2016, the social worker noted that on February 3, 2016, mother denied the allegations, claiming father did not stay in the home and that they had not fought in the last seven years. However, on January 29, 2016, mother filed a domestic violence restraining order against father. The social worker’s investigation revealed a history of law enforcement calls for domestic violence. Mother was “currently taking Norco, Promethazine with Codeine, Soma and Xanax . . . .” Since January 26, 2016, she had tested positive for opiates and father tested positive for methamphetamines.

At most of the supervised visitations that she attended, mother appeared “out of it” and “very sleep[y].” Mother had missed a visit on February 25, 2016, explaining that she “was sleeping and didn’t wake up until 2:55 pm.” Mother said she “appreciated the 2-4 pm visit,” adding that she “goes to sleep every night at 6:30 pm.” When asked who would take care of A.W. after 6:30 p.m., mother replied, “‘she has siblings and they take care of her.’” Regarding her services, mother attended some of the classes she was required to attend, but she failed to address the domestic violence issue or submit to drug testing. CFS recommended that A.W. be removed and placed in out-of-home care, and that family reunification services be provided to mother, but not father.

At the March 30, 2016, contested jurisdiction/disposition hearing, the juvenile court received CFS’s reports into evidence, declared A.W. to be a dependent of the court, and removed her from parental custody. The court ordered reunification services, supervised visitation, domestic violence and general counseling, and substance abuse treatment and testing.

C. Six-month Review Hearing.

In the six-month status review report filed on September 20, 2016, CFS noted that mother had consistently visited with A.W. and had participated in some therapy sessions and domestic violence classes, but she did not participate in any outpatient substance abuse treatment programs, did not regularly complete drug tests, and did not attend AA/NA (Alcoholics Anonymous/Narcotics Anonymous) meetings. Mother declined to participate in any services surrounding substance abuse, maintaining that “she does not have a substance abuse problem.” She declined to submit to random drug tests because she would test positive for prescription medication. CFS expressed concern that mother was abusing prescription medications and falling asleep while caring for A.W., and that the issue of domestic violence had not been resolved.

The San Bernardino County Sheriff’s Department call log regarding mother’s home revealed repeated calls for domestic violence. Mother became homeless in May 2016 after being evicted. The child had adjusted well to her placement, referring to her foster parent, Ms. A., as “‘mom.’” A.W.’s older sister, T.H., expressed a desire to have the child placed with her; however, the social worker opined that such placement would not be in the child’s best interests given the close connection T.H. has with mother. At the hearing, the juvenile court continued the child in out-of-home placement, ordered mother to participate in her case plan, and set a 12-month review hearing. The case plan objectives focused on mother’s substance abuse and domestic violence issues. The plan required mother to be assessed by a doctor for possibly taking alternative medications for drug dependency, take only medications as prescribed, submit to random drug testing, and join a support group for drug dependency. The main objective required mother to have fewer incidents of assaultive or aggressive behavior towards others (especially father), not allowing others with patterns of domestic violence into her home and around the child, to avoid arrests or convictions for domestic violence, to complete a domestic violence program, and to develop a prevention plan regarding father.

On September 28, 2016, the court found that the Indian Child Welfare Act did not apply.

D. Twelve-month Review Hearing.

On March 8, 2016, the juvenile court vacated the 12-month status review hearing and set the matter for a contested section 366.21, subdivision (f), hearing. According to the status review report filed on February 27, 2017, CFS recommended termination of services and adoption or guardianship as the permanent plan. Mother’s progress was sporadic, and she had not resolved the issues that led to CFS involvement. She declined to participate in outpatient services and continued to overmedicate. She appeared under the influence during visitation, and CFS was concerned that she was selling her medication illegally. Issues of domestic violence continued in her home, but she denied there was a problem. Another of A.W.’s older sisters, T.Y., came forward as a potential placement and concurrent home, but she had only visited with the child one time. T.H. continued to express interest in wanting the child placed with her, but the social worker opined that T.H. had difficulty “directing her own child’s behaviors and may not be able to handle both [A.W.’s] aggressive behaviors and her own child’s behaviors together.” Mother requested that T.H. adopt the child.

On March 15, 2017, mother turned in a “Certificate of Completion for Twelve Week Domestic Violence/Batterers Treatment Program,” dated November 7, 2016, along with a “Twelve Week Parent Education Treatment Program Certificate,” dated June 30, 2016. CFS maintained its prior recommendations because mother had not “demonstrated benefit from participation in services and continues to overmedicate with her prescription medication.” On March 28, 2017, the juvenile court terminated mother’s services and set a section 366.26 hearing.

E. Section 388 Petition.

On July 11, 2017, mother filed a section 388 petition requesting the juvenile court not to terminate her parental rights and return A.W. to her custody. She submitted another copy of her certificates of completion for parenting and domestic violence classes, claiming that she has “built her spiritual life,” has “become stable mentally as well as physically,” and has a “better support system.” On July 26, 2017, the juvenile court denied the section 388 petition, without an evidentiary hearing, finding the petition failed to state a change of circumstances and it was not in the child’s best interest.

F. Section 366.26 Hearing.

The first addendum to the section 366.26 hearing report was filed on October 18, 2017. CFS recommended termination of parental rights and a permanent plan of adoption by the current caregiver, Ms. A., with whom the child had been living since the inception of the case in January 2016. The child was bonded to Ms. A., who was committed to caring for her and raising her into adulthood. A.W. stated that if she could not live with her mother or sister, she wanted to remain with Ms. A. T.H., the child’s sister, was deemed not to be an appropriate placement because she lived with mother, was aware of domestic violence in their home, was aware that mother was selling drugs, was barely an adult herself, and had difficulties handling her own child. T.Y., the other sister, had visited the child only a few times and did not realize the placement was for adoption; she thought it was only until mother got her life in order. When the social worker tried to call T.Y. to set up more visits, the phone was disconnected. Mother’s recent visits demonstrated a lack of interaction between the mother and child. Because mother was distracted or talked to others, the child entertained herself and the two were not connecting.

On December 5, 2017, CFS filed a second addendum to the section 366.26 hearing report. CFS primarily reported about the visits between the child and T.Y. T.Y. did not take advantage of the full two-hour visits; she often arrived late and brought her children. Her children revealed that mother lives in the house with them. They ran around, jumped on and off benches, and screamed; T.Y. did not correct their behavior or intervene. T.Y.’s son made inappropriate comments to the caregiver. When asked about A.W.’s age, birth date, or grade in school, T.Y. did not know. The social worker opined that it would not be in the child’s best interest to be placed with T.Y., who “consistently minimizes the seriousness of the facts surrounding the child’s case in reference to substance abuse, domestic violence, and physical abuse from the biological mother . . . .”

At the January 24, 2018, contested section 366.26 hearing, mother testified that she preferred guardianship to preserve her parental rights. She claimed that she consistently visited her daughter who was excited to see her. After finding that notice had been given as required by law, that it was likely the child would be adopted, and that none of the exceptions in section 366.26, subdivision (c), applied, the juvenile court terminated the parental rights and selected adoption as the permanent plan.

II. DISCUSSION

Mother asserts the juvenile court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude termination of her parental rights. We find no error.

A. Applicable Legal Principles.

After reunification services are denied or terminated, “‘the focus shifts to the needs of the child for permanency and stability.’” (In re Celine R. (2003) 31 Cal.4th 45, 52.) “‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’” (Id. at p. 53; see § 366.26, subd. (c)(1).) “‘Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.’” (Celine R., supra, at p. 53.) A statutory exception to the general rule requiring the court to choose adoption exists where “[t]he court finds a compelling reason for determining that termination would be detrimental to the child,” (§ 366.26, subd. (c)(1)(B)) because “[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).)

“‘To trigger the application of the parental relationship exception, the parent must show the parent-child relationship is sufficiently strong that the child would suffer detriment from its termination.’ [Citation.] A beneficial relationship ‘is one that “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” [Citation.]’” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) The nature of the relationship between the parent and child is key in determining the existence of a beneficial relationship; it is not sufficient to show that the child derives some benefit from the relationship or shares some “‘emotional bond’” with the parent. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) “To overcome the preference for adoption and avoid termination of the natural parent’s rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) In other words, the parent must show he or she occupies a “‘“parental role” in the child’s life.’” (K.P., supra, at p. 621.)

The parent has the burden of proving the statutory exception applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (Ibid.) A juvenile court’s finding that the beneficial parental relationship exception does not apply is reviewed in part under the substantial evidence standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial parental relationship exists, is reviewed for substantial evidence, while the court’s determination that the relationship does not constitute a “compelling reason” (In re Celine R., supra, 31 Cal.4th at p. 53) for finding that termination of parental rights would be detrimental is reviewed for abuse of discretion. (Bailey J., supra, at pp. 1314-1315; In re K.P., supra, 203 Cal.App.4th at p. 621.) A juvenile court’s ruling on whether there is a “compelling reason” is reviewed for abuse of discretion because the court must “determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption.” (Bailey J., supra, at p. 1315, italics omitted.) More specifically, a challenge to a court’s failure to find a beneficial relationship amounts to a contention that the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish the existence of a beneficial parental relationship, a substantial evidence challenge to this component of the juvenile court’s determination cannot succeed. (Bailey J., supra, at p. 1314.)

B. Analysis.

Here, the juvenile court gave mother the benefit of the doubt on the first factor, regular visitation. We therefore limit our analysis to whether terminating mother’s parental rights would be detrimental to A.W. We conclude that substantial evidence supports the court’s finding that mother and child did not share a parent-child bond sufficient to trigger the beneficial parent-child relationship exception.

The child was removed from mother’s custody in 2016 when she was four years old, and during the next two years mother maintained contact, albeit inconsistently and shallowly, as permitted. However, mother has failed to show that the child will benefit from continuing the relationship and will be greatly harmed should parental rights terminate. Although mother testified that A.W. hugged and kissed her and told her that she loved her, the social worker observed visits where mother failed to engage with the child, who appeared bored and would play by herself. Mother’s testimony was not corroborated by the social worker’s report, and the trial court was entitled to disbelieve it. While the record arguably indicates that mother had “loving contact or pleasant visits” with the child, this has repeatedly been found insufficient to support application of the exception. (In re C.F. (2011) 193 Cal.App.4th 549, 555.) Mother never progressed in reunification efforts sufficiently to obtain unsupervised care and visitation.

Moreover, the juvenile court did not abuse its discretion by determining that any harm the child might suffer from the severing of her relationship with mother is outweighed by the benefits of adoption. Mother’s life continued to involve domestic violence and substance abuse (pain medication); she failed to parent or protect the child from witnessing the abusiveness of father and others in their home. A.W. requires a caring home free of violence and drug abuse. All indications are that Ms. A. is prepared to provide such home.

Mother references In re S.B. (2008) 164 Cal.App.4th 289, 300-301), arguing that “this case [is] one where the exception was met and should have applied.” We disagree. Mother’s reliance on S.B. is misplaced because this case is not like S.B. There, a three-year-old child was removed from her father’s custody; the father immediately acknowledged his drug use, fully complied with his case plan, and remained drug free. (S.B., supra, at p. 298.) The child wanted to live with the father and became upset when visits ended. (Ibid.) The appellate court concluded the beneficial relationship exception applied. (Id. at pp. 298-299.) S.B. is “confined to its extraordinary facts.” (In re C.F., supra, 193 Cal.App.4th 549, 558.) The same court that decided S.B. later stated that S.B. “does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. As [In re Autumn H. (1994) 27 Cal.App.4th at p. 575] points out, contact between parent and child will always ‘confer some incidental benefit to the child,’ but that is insufficient to meet the standard. [Citation.]” (In re C.F., supra, at pp. 558-559.)

Here, the evidence shows that mother has not fulfilled a parental role in one-third of A.W.’s life, possibly more, given mother’s acknowledgment that she would “[go] to sleep every night at 6:30 p.m.” and rely on “siblings” to watch her. Mother recognized that A.W. was not as open with her (mother) as she (A.W.) used to be. In contrast, Ms. A. has been a constant source of stability and she has demonstrated a commitment to adopting A.W. Although A.W. indicated that her adult sister is her first choice of whom to live with, “she indicated that if she is unable to live with her adult sister, she would like to remain in her foster home with [Ms.] A.” A.W. and Ms. A. developed a strong bond and attachment. Finding that the child’s relationship with mother had changed to the point where mother no longer stands in the parental role, the court concluded that A.W.’s long-term emotional and developmental interests are better served by the permanency that adoption provides.

Mother has not demonstrated that the juvenile court’s factual findings lack the support of substantial evidence, or that its exercise of discretion rested on an unsupported factual basis. In short, mother has demonstrated no error by the court.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

FIELDS

J.