Filed 9/26/18 In re A.L. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

S.A. (mother) and B.L. (father) appeal from the juvenile court’s order terminating parental rights for minors Ad.L., I.L., Aa.L., and D.L. (collectively, the minors). (Welf. & Inst. Code, § 366.26.)[1] Mother and father contend the juvenile court erred in failing to find the beneficial parental relationship exception applied to the minors. (§ 366.26, subd. (c)(1)(B)(i).) We will affirm the juvenile court’s order.

BACKGROUND

In May 2016, the San Joaquin County Health and Human Services Agency (the Agency) filed a petition alleging mother and father had failed to protect minors Ad.L. (then age 10), I.L. (then age four), Aa.L. (then age two), and D.L. (then age 18 months). (§ 300, subd. (b).) According to the petition, the family home was dirty, the parents were using methamphetamine, the parents had engaged in domestic violence in the presence of Aa.L., and mother had untreated mental health issues.

According to the May 2016 detention/jurisdiction report, in March 2016, mother and father were arguing in the car in the presence of Aa.L. when father punched out a window. The social worker visited the family at their home at 11:00 a.m. on May 10, 2016 and found I.L. and Aa.L. playing outside with no supervision and minimal clothing. The front door was wide open, so the social worker went inside and found D.L. crying in a portable crib. Mother did not respond when the social worker called out. I.L. said mother was sleeping. Two sheriff’s deputies arrived 40 minutes later and were able to wake mother. As the deputies were talking to mother, she began to fall asleep again. Mother did not respond to simple questions. She said she had taken Nyquil that morning and denied any current methamphetamine use.

The family home was “extremely dirty,” including old food and trash in the kitchen and living room. There was also a large carving knife and a shaving razor within the children’s reach. In the bedroom shared by Ad.L. and D.A. (the 13-year-old half-brother of the minors), there was a shoe box within the children’s reach that was filled with marijuana leaves, matches, and a make shift pipe with burnt marijuana. The marijuana was D.A.’s. The master bedroom had plates of food on the floor, another large carving knife in the children’s reach, and a pellet rifle on the floor behind the door. The home was condemned by the San Joaquin County Code Enforcement team.

Maternal grandfather said mother previously used methamphetamine. Maternal great aunt said mother had episodes of depression and suicide attempts. Her most recent attempt was one month ago. Mother said she was not taking any psychotropic medication. Father denied any domestic violence and claimed he and mother only verbally argued. Mother was arrested for felony child endangerment; father was cited for misdemeanor child endangerment. An emergency protective order was issued protecting the minors from mother and father, and the minors were detained.

On May 13, 2016, the juvenile court ordered the minors detained. Visitation was ordered for father. Mother and father were also ordered to drug court.

The July 2016 update report noted mother and father had tested positive for methamphetamine during their May 2016 drug court assessments and again in June 2016. They were required to attend meetings and be available for random testing while waiting to be referred for treatment. Mother and father were also terminated from their substance abuse program in June 2016, due to father falsifying his urine test and mother testing positive for methamphetamine. Father admitted to using methamphetamine in June 2016. The Agency recommended substance abuse treatment. Mother and father had weekly supervised visits with the minors, who were placed with maternal uncle and aunt. Ad.L. struggled at school but was emotionally stable at his uncle and aunt’s home, and turned to them for comfort. I.L., Aa.L., and D.L. were also emotionally stable and seemed comfortable with their parents and their aunt and uncle. The Agency recommended reunification services for mother and father.

During the July 2016 jurisdiction hearing, the Agency amended the petition with substantially the same allegations as in the original petition, and mother and father submitted on it. The juvenile court adjudged the minors to be dependent children of the court and ordered the minors be removed from the parents’ custody. (§ 361.2, subd. (a).) The court found mother and father’s progress toward alleviating or mitigating the causes necessitating placement was minimal. The court ordered reunification services for mother and father.

In the January 2017 status review report, the Agency recommended terminating reunification services for mother and father. Minors remained placed with maternal aunt and uncle. Mother and father both disregarded the social worker’s advice to enroll in a substance abuse program, although they were participating in counseling. Mother and father also had not yet attended substance abuse meetings required for reinstatement into drug court. Mother and father both completed a parent education program in September 2016. Mother was currently homeless, and the social worker had been unable to reach father and did not know where he was living. Mother and father had weekly supervised one-hour visits with the minors, and the visits generally went well. During the visits, the parents actively engaged with the minors in age appropriate activities. Ad.L.’s counselor suggested he was depressed because he was not living with his parents.

In January 2017, Aa.L. and D.L. were placed in the home of their maternal cousin. Ad.L. and I.L. were placed with the maternal grandmother.

During a February 2017 hearing, the social worker testified mother and father were still not participating in substance abuse treatment. Although mother and father were participating in counseling, the social worker recommended terminating their reunification services. The parents were not participating in drug court and returning the minors would probably place them in an unsafe environment. Father testified he had completed a parenting class and was attending three substance abuse meetings per month. He used methamphetamine once a week but was very willing to do drug treatment if he was given six months additional reunification services. Father had used methamphetamine with mother. Although he was not currently under the influence, he had most recently used methamphetamine three days prior and would probably test positive. Mother testified she wanted to reunify with the minors. She completed 20 sessions with her individual counselor and had begun the 10 additional sessions recommended by the counselor. She testified she needed a residential substance abuse program to address her methamphetamine use. She currently used methamphetamine twice a week, with her most recent use a couple of days prior. She had attended nine substance abuse meetings since January 2017. Mother and father were in a romantic relationship and argued about getting the kids back. Mother was not really sure why she had not returned to substance abuse treatment after she was dismissed eight months ago.

The juvenile court terminated mother and father’s reunification services and set a section 366.26 hearing. Although mother and father love their children, they were not in a position to provide a home for them due to their addiction. Their progress with the counselors was minimal. There was not a substantial probability that the minors would be returned to the custody of mother and father.

In May 2017, mother filed a section 388 petition asking for the minors to be returned to her and father’s care or, in the alternative, to reinstate her and father’s reunification services. Mother argued she and father had entered a one-year residential rehabilitation program in April 2017, and she had been sober for 60 days. Minors could live with mother and father at the program. The juvenile court denied mother’s petition in June 2017.

In the June 2017 section 366.26 report, the Agency recommended terminating parental rights and a permanent plan of adoption. Each of the minors were deemed adoptable and terminating parental rights would not be detrimental. Each of the minors was bonding with his or her respective caregiver. Ad.L. and I.L. had been living with maternal grandmother since January 2017, and she wanted to adopt them. Maternal grandmother had taken care of the two on and off throughout their lives, including after Ad.L.’s birth. Ad.L. had been doing well since being placed with maternal grandmother. He told the social worker he wanted to live with her forever. “I want her to take [the] place of my mom because she basically is my mom. I lived with her most of my life. I love my grandmother.” I.L. said he liked and loved grandma. Because maternal grandmother lived near her sister, Ad.L. and I.L. were able to play with their cousins every day.

Aa.L. and D.L. had been living with maternal cousins since January 2017, and the cousins wanted to adopt them. Aa.L. and D.L. made their caregivers’ home as their home and acted as though they accepted the family as theirs. They looked to their caregivers for comfort, attention, and help. The caregivers’ 10-year-old son said he loved Aa.L. and D.L. as his sisters. The five-year-old son said D.L. and Aa.L. love and hug him. He wanted D.L. and Aa.L. to stay with them forever. The caregivers were doing a tremendous job meeting D.L. and Aa.L.’s needs and were committed to providing a permanent home for them. Still, Aa.L. seemed to miss mother, father, and her siblings. She became more aggressive when her routine was disrupted because mother and father were unable to visit with her for three weeks in April 2017 due to their residential program. Aa.L. was seeing a counselor. D.L. did not seem to recognize mother and father as her parents.

Mother and father continued to have weekly visits with the minors, although they had missed a few visits due to their rehabilitation program. Still, the report noted, “mother and father have not proven that they can keep clean and sober living for any duration of time.” In addition, assuming mother and father remained in a romantic relationship, they needed additional couple’s counseling to help them understand what caused the child endangerment. Mother and father also did not have a stable home for the minors. In sum, mother and father were “not able to provide an environment to responsibly care for, raise and protect the children.”

The July 2017 status review report described each of the minors as bonding with his or her respective caretaker. Ad.L. and I.L. were adjusting very well with the grandmother and her family, making themselves members of the household. Although Ad.L. missed living with his other siblings, the maternal grandmother arranged visits on the weekends. Aa.L. and D.L.’s caretakers described the children as family and said they wanted to provide for them to thrive for life. Aa.L. participated in weekly counseling. The Agency continued to recommend terminating parental rights with a permanent plan of adoption.

On October 19, 2017, the juvenile court held a hearing under section 366.26. Mother and father testified they had weekly one-hour visits with the minors. During visits, they would enjoy the time and read, play, and talk. At the start of the visits, the minors seemed excited and would run up to mother and father and hug them. Minors called the parents mommy and daddy. Mother and father also spoke on the phone with the minors when they got a chance. They usually spoke with Aa.L. and D.L. for 10 minutes. They would talk with Ad.L. and I.L. for 20 minutes about whatever was going on in the day. During visits or on the phone, mother and father would talk to Ad.L. about school and try to help him resolve issues, including bullying. The discussions were “like a parent and child conversation.” Each of the minors told father he or she wanted to come home. Father really loves his kids and made every effort to fix his mistakes.

Mother testified Ad.L. had always lived with her and father, although at one point they all lived with maternal grandmother. When Ad.L. lived with mother and father, the parents would help him with his homework. Mother would help Ad.L. get to school unless she was sick. She would also play with them, get them medical treatment, and teach them to do chores.

Mother testified that she and father shared a bond with their children. Ad.L. enjoyed their time together and would still come and sit in her lap and looked at her with so much love. I.L. was her little buddy and never wanted to leave her side. He would hug and kiss mother and tell her he loved her. Aa.L. loved to hug and talk with mother. D.L. also loved to cuddle, hug, and be held. The minors called her mommy. Mother testified it would be very traumatic for the minors if they could not see father or her. She would always be there for them.

The juvenile court terminated parental rights for mother and father and ordered that the minors be placed for adoption. There was no doubt the parents loved the minors dearly and were bonded with them to some extent. But the minors had been out of their parents care since May 2016, or 17 months. That was half the life of the two youngest children (Aa.L. and D.L.). Each of the minors was clearly bonded with his or her respective caregiver and was doing very well in the current placement. Although the minors recognized mother and father as mommy and daddy, that did not mean they were fulfilling that role, especially since they only saw the minors for one hour, once a week. Mother and father visited regularly, but there was no evidence that terminating parental rights would be detrimental to the minors. Minors had adapted and were pretty well-adjusted in their placements. Ad.L. said he wanted to stay with maternal grandmother, and there was no evidence aside from the parents’ testimony that the other minors wanted to return to the parents’ care. Minors were likely to be adopted, and it was in their best interests to terminate parental rights.

DISCUSSION

Mother and father contend the juvenile court erred in failing to find the beneficial parental relationship exception applied to the minors. (§ 366.26, subd. (c)(1)(B)(i).) According to the parents, the juvenile court erred in determining that the detrimental impact of severing the minors’ relationship with mother and father would not outweigh the benefit they might gain from adoption.

Termination of parental rights may be detrimental to the minor when “[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).) “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 (Jasmine D.).) We review with deference a juvenile court’s rejection of an exception to adoption. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether the standard of review is deemed substantial evidence or abuse of discretion, broad deference to the lower court is required]; Jasmine D., at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)

To prove the beneficial parental relationship exception applies, “the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits -- the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) Moreover, it is not enough simply to show “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) “[T]he 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, italics omitted.)

Although mother and father consistently visited with the minors and regularly spoke with them on the phone, they failed to show the minors had a significant, positive, emotional attachment to them that would outweigh the well-being the minors would gain in a permanent home with adoptive parents. (See In re S.B. (2008) 164 Cal.App.4th 289, 297; accord, Jasmine D., supra, 78 Cal.App.4th at p. 1345.) The minors had been out of their parents’ care for 17 months. While the minors shared a bond with mother and father, they also had bonded with their respective caregivers. Ad.L. and I.L. had each adjusted very well to living with maternal grandmother. Ad.L. told the social worker he wanted to live with maternal grandmother, and I.L. said he loved her. Although Aa.L. seemed to miss her parents, Aa.L. and D.L. acted as though they accepted the maternal cousins’ family as theirs. Aa.L. and D.L. looked to their caregivers for comfort, attention, and help. D.L. did not seem to recognize mother and father as her parents. The juvenile court did not err in finding that the beneficial parental relationship was inapplicable and in terminating parental rights.

Mother argues the juvenile court erroneously required the parents to prove the beneficial parental relationship exception by the clear and convincing evidence standard. But although the juvenile court initially stated that the parents had failed to show the detriment to the minors “by clear and convincing evidence,” after being corrected by county counsel, the court subsequently said: “Even by preponderance it is still not sufficient given the facts that are spelled out in the .26 report.” Accordingly, the juvenile court used the correct standard of proof.

DISPOSITION

The order of the juvenile court is affirmed.

/S/

MAURO, J.

We concur:

/S/

RAYE, P. J.

/S/

BUTZ, J.