Filed 10/16/18 In re T.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Katherine E. Lewis, Judge. Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant S.A.

Denise M. Hippach, under appointment by the Court of Appeal, for the Defendant and Appellant C.A.

Leon J. Page, County Counsel, Karen L. Christensen, Jeannie Su, and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

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S.A. (Mother) and C.A. (Father) appeal from the order terminating their parental rights to their children T.A. and G.A. Father also appeals the denial of his Welfare and Institution Code section 388[1] motion. Both parents contend the juvenile court should have applied the parental benefit exception to adoption as the permanent plan. (§ 366.26, subd. (c)(1)(B)(i).) We find no error, and we affirm the judgment.

FACTS

In July 2016, the Orange County Social Services Agency (SSA) placed then three-year-old T.A. and then two-year-old G.A. into protective custody and then released the children into the care of their paternal grandmother (Paternal Grandmother). The juvenile dependency petition filed on August 2, 2016, alleged Father and Mother failed to protect the children within the meaning of section 300, subdivision (b). The petition stated the parents exposed their children to domestic violence and both parents had unresolved problems with substance abuse (including methamphetamine). Paternal Grandmother reported the children were “‘naked and dirty’” when placed into her care. Mother reported two incidents of domestic violence. In March 2016, Father pushed her against a counter, choked her, and lifted her off the ground. In April 2016, Father choked her until she could no longer breathe, in the presence of the children. In July 2016, Father fought with Paternal Grandmother in the presence of the children, making them cry. During this incident, Paternal Grandmother was concerned for the children’s safety because she saw Father was very upset. When she tried to stop T.A. from entering Father’s vehicle, he pushed Paternal Grandmother and inadvertently struck T.A. with a laptop. Father told T.A. that he was sorry Paternal Grandmother hit her. The petition also alleged Father had unresolved mental health or anger management issues.

After detaining the children, the court ordered the parents would have four hours of monitored visitation per week, to take place separately. The jurisdictional hearing was continued several times, and in November 2016, the court sustained the petition. At the January dispositional hearing, the court declared the children dependents, removed custody from the parents, and vested custody with SSA. It ordered family reunification services for both parents that included counseling, domestic violence counseling, and substance abuse testing and treatment.

I. Six-Month Review

In a report prepared for the six-month review hearing, the social worker stated Mother’s cooperation and progress with her case plan was minimal and Father’s was moderate. With respect to Mother, she enrolled in an inpatient program and a week later she voluntarily left the program after testing positive for methamphetamines. Mother’s therapist recommended she enter a six-month substance abuse program, but the social worker had no confirmation Mother had enrolled. Mother failed to give the social worker proof she had enrolled in a Personal Empowerment Program (PEP) or was participating in individual therapy. She missed 38 random drug tests from January to June 2017. Additionally, Mother had problems with two drug-testing patches applied at different times in May 2017. She claimed the first one fell off when she was sleeping, and the second one tested positive for amphetamine and methamphetamine.

Father was also having problems complying with his case plan. In May 2017, he enrolled in a substance abuse program but attended only two sessions. Father told the social worker the classes were boring and he did not have a substance abuse problem. Yet between January and June, Father missed 39 random drug tests. The one test he completed was negative. Father’s therapist opined that while Father stated he understood the issues, he demonstrated limited insight. In May and June, Father attended counseling sessions during which he was open and talkative. Father also completed anger management classes. Father’s therapist reported Father made excuses as to why he could not apply the drug-testing patch, but he twice tested negative when the test was administered.

The social worker reported Mother and Father’s monitored visitation time was increased from four to six hours per week. The social worker noted there were no concerns with any visits. Mother visited regularly and she demonstrated a parental role and knowledge of her children’s needs. She responded to their verbal and non-verbal signals, put the children’s needs ahead of hers, and showed empathy. She was affectionate with the children and brought them snacks and beverages. The children would run to Mother when she arrived, and Mother would greet them with hugs and kisses. At the end of visits, Mother hugged and kissed her children and helped put them in the car.

Father also demonstrated a parental role and knowledge of the children’s needs. He interacted with them appropriately, brought them snacks and drinks, and demonstrated empathy. He missed one visit on a day he had mistakenly arrived two hours early. He left saying he had a job interview and did not return. Father was affectionate with his children, greeting them with hugs and kisses.

The children were thriving in the care of Paternal Grandmother. The social worker reported the children appeared healthy, well-groomed, and content to be with their paternal grandparents. She saw they were securely attached to their caregivers, as evidenced by their affectionate engagement.

The court read, considered, and accepted into evidence the social worker’s reports. The court determined continued supervision and placement was necessary because Mother’s progress was minimal and Father’s progress was moderate. The court scheduled a 12-month review hearing for September 2017.

II. 12-Month Review

In anticipation of the 12-month review, the social worker prepared a status review report. She discussed the children’s placement with Paternal Grandmother. The children had a room furnished with toddler beds, and their closets were full of clothing. The children appeared happy, physically healthy, and well cared for. She saw them laughing and playing.

The social worker opined that neither Mother nor Father had taken responsibility for their actions or reasons why the children were taken into protective custody. She was concerned the parents had failed to make significant progress in their case plans. It appeared both parents had unresolved substance abuse problems. Mother tested positive in a May patch test and tested inconsistently. Father was not participating in any substance abuse testing.

On a more positive note, both parents remained employed and continued to have quality visitation time with their children. Mother made an effort to be part of her children’s lives by attending their medical appointments. She also was present for T.A.’s first day of transitional kindergarten. Mother told the social worker that she loved being part of their lives and she wanted additional visitation time. The social worker recommended family reunification services be terminated.

The court continued the 12-month review hearing to October 30, 2017. The social worker filed a report stating Father was currently homeless and staying with friends. He completed 20 individual therapy sessions and 13 anger management classes. However, he had not enrolled in a drug abuse program, he refused to participate in the drug-testing patch program, and he would not submit to random drug testing. Father’s visits continued to be consistent and appropriate. He positively interacted with the children by playing with them and praising them when they needed positive reinforcement.

In an addendum report prepared for the 12-month review hearing, the social worker stated the children were doing well in their placement with Paternal Grandmother. Mother and Father continued to make limited progress with their case plans. For example, Mother had not yet enrolled in a testing program. She admitted the reason she was not testing was because she did not want to test “‘dirty.’” Mother had missed 10 random drug tests. Mother claimed she would start drug testing the next week. She admitted using drugs before the September court date because she was stressed out. Mother was unemployed and received financial help from her mother. As of October 26, Mother reported she was attending a 16-week drug and alcohol program. Mother also reported she was attending 12-step meetings, but did not provide verification cards.

The social worker met with Father after the September court hearing. Father admitted he was not attending a substance abuse program, but he intended to begin drug testing. The social worker made several unsuccessful attempts in October to schedule a visit with Father by leaving messages. At the end of October, Father sent the social worker a text message stating he had surgery and was not able to move around. He asked the social worker to change the place of the scheduled monitored visitation due to his limitations caused by the surgery and his use of pain medication. The social worker noted that as of October 26, Father had not confirmed he was attending a substance abuse program, he was not using the drug-testing patch, and he had missed 11 random drug tests.

In her report, the social worker again recommended termination of reunification services and that the trial court schedule a permanency planning hearing for the children. Because the court continued the 12-month review hearing to November, the social worker prepared a second addendum report. She made the same recommendation to the court regarding services. She noted that on October 27, 2017, Mother sent her a text message stating she started drug testing and wanted to begin overnight visits with the children. The social worker told Mother there needed to be evidence she was consistently testing negative before additional visits would be authorized. The social worker noted Mother’s October 24 drug test was positive for amphetamine and methamphetamine. Mother tested negative on four other tests and missed one.

As for Father, the social worker stated he telephoned her in early November to confirm he was authorized to begin patch drug testing. He stated he would provide the social worker with copies of his current medication prescriptions. The social worker spoke with Father a week later, and he admitted he was not attending therapy or anger management classes. He stated he was focusing on his health and he was homeless. Father had one negative drug test in early November but then missed five random drug tests.

The court again continued the 12-month review hearing.

The social worker’s third addendum report recommended termination of parental rights. The social worker noted Mother indicated she would begin individual counseling and she claimed to be attending an outpatient drug treatment program. Mother found new employment and was working part time. Father was not available to meet the social worker due to his medical condition. However, he told the social worker he failed to comply with the drug test patch program requirements. He missed five random drug tests in November.

At the 12-month review hearing on November 29, 2017, the court terminated reunification services because it determined the parents had made only moderate progress during the 15 months of the dependency proceedings toward alleviating or mitigating the causes necessitating placement. It set a permanency hearing pursuant to section 366.26 (section .26 hearing).

III. Section .26 Hearing and Section 388 Petitions

In March 2018, Mother filed a section 388 petition for modification, requesting the children be returned to her custody or that she be given additional reunification services. In her petition, Mother stated she had a wonderful relationship with the children and they viewed her as their mother. Her visits were consistent and appropriate. During visits she demonstrated parental skills, including purchasing food, cooking, putting the children down for naps, bathing them, reading to them, and showing affection. Mother stated she was making good progress on her case plan. Specifically, she completed a four-month substance abuse program, she was employed, and she had a stable residence. Mother added she filed paperwork to divorce Father.

Mother’s counsel provided a declaration in support of the petition. He conceded Mother struggled with her addiction during the dependency proceedings and her substance abuse was still a struggle for her. He noted Mother was employed and she had made significant changes in her life. He opined mother now understood the harm she caused her children.

In May 2018, Father filed a section 388 petition requesting return of the children to his custody or additional reunification services. In his declaration, Father maintained he was not a drug addict and he had been falsely portrayed to be a violent, angry person. Father claimed he treated his wife with love and respect even “when she didn’t return the favor.” He asserted Mother was responsible for their arguments. Father noted T.A. always asked if she could come home to live with him.

That same day, the court considered both section 388 petitions and determined neither parent made a prima facie case for a hearing. The court agreed with SSA and minors’ counsel that Father’s and Mother’s section 388 petitions failed because neither parent indicated a change of circumstance or addressed the children’s best interest. With respect to Mother, the court acknowledged she changed a few of her circumstances but it was troubled by her unresolved substance abuse problem. The court understood Mother was trying to be sober, but the evidence showed she had dirty tests despite her participation in a substance abuse program. The court opined Mother was not seeking sobriety honestly. It concluded there was no evidence of a change in circumstances and denied Mother’s section 388 petition. It also denied Father’s petition.

The court next turned to the section .26 hearing. Without objection, the court admitted SSA’s four reports in which senior social worker Andrea Guillen recommended that the court should terminate parental rights. She opined the children were both generally and specifically adoptable. She added the children had been living with Paternal Grandmother for nearly two years.

On the topic of visitation, Guillen testified the quality was good, the parents visited regularly and consistently, and they each fulfilled a parental role during the monitored visits. Both children called Father “Dad.” Guillen opined the children appeared to have a strong bond with their parents. She testified there was no indication the children did not want to live with Paternal Grandmother, nor was there an indication the children did not want to live with their parents. Guillen testified Paternal Grandmother indicated T.A. at times would comment she would rather have her whole family live together. Guillen never asked T.A. how she would feel if she never had contact with Mother. She explained T.A. was just five years old and was a very shy child.

Guillen opined there would probably be some detriment to the children if Paternal Grandmother decided to stop contact with the parents after their rights were terminated. She explained the children referred to Mother and Father as their parents, and the quality and consistency of their visits together was good. However, Guillen testified her opinion that adoption was the best permanent plan would not change even if Paternal Grandmother would not allow future visits. She did not believe that “the children would be safe to be returned home.”

Guillen testified she had no information from Paternal Grandmother that in the time between parental visits the children would ask or cry for their parents. She was unaware of any instances when the children had a difficult time separating from the parents at the end of a visit. Guillen explained her recommendation to terminate parental rights was based on the parents’ inadequate participation in services and their inability to sustain sobriety.

After Guillen testified, Mother’s counsel moved to strike the section .26 report as being biased. Counsel argued Guillen’s opinion regarding detriment to the children lacked adequate foundation. Counsel essentially argued the report should be stricken due to Guillen’s failure to ask the children about their preferences. Mother’s counsel also requested a continuance of the section .26 hearing to obtain a bonding study.

The minors’ counsel opposed the continuance, arguing counsel should have requested the bonding study when the court terminated services. He argued it was not in the children’s best interest to delay the proceedings further to obtain a bonding study. SSA argued the legal standard was adoption, and that asking a three-year-old child and five-year-old child “where they want to live [was] not the legal standard.” SSA argued children at these ages “have [a] limited understanding of regarding what an adoption is.” SSA maintained a bonding study was unnecessary because “the social worker testified there’s clearly a bond.” Father’s counsel opposed the continuance request and did not join in Mother’s objection to SSA’s reports. The court denied Mother’s request for a continuance to obtain a bonding study on the grounds it was untimely. The court denied the motion to strike the reports, indicating the objection related to the weight to be given to the reports not their admissibility.

The court considered the testimony from several witnesses at the section .26 hearing. The children’s maternal grandmother (Maternal Grandmother) testified she supervised Mother’s visits in November 2017. She described visits as having gone “really well” and she recalled the children were “very, very, extremely affectionate” with Mother. They referred to Mother as “Mom” or “Mommy.” Mother engaged in parental tasks such as feeding, bathing, playing, and disciplining the children. Maternal Grandmother testified she never suspected drug use by Mother during visits.

Maternal Grandmother testified T.A. would express a desire to live with Mother from “time to time” and she was sometimes sad at the end of visits with Mother because she did not want it to end. Other times, visits ended positively with lots of hugs and kisses, Mother would say “‘I love you,’” and they would each drive away. Maternal Grandmother recounted T.A. was fearful she would be separated from her parents forever. Maternal Grandmother testified G.A. recently asked a few times when they would all be together. G.A. appeared sad and fearful when he asked why he could not live with Mother.

Mother testified she was consistent with her visits, only missing one or two visits at the very beginning of the case. At the start of the visits, there were many enthusiastic hugs, kisses, and statements of “‘I love you[].’” She saw the children were usually watching at the window for her to arrive. Mother described all the tasks she performed during visits. Mother said she did everything for the children, including taking them to the bathroom, making their meals, playing with them, reading, bringing activities for them to be engaged in, and putting them down for bed. Mother said she set appropriate boundaries for the children and they would ask her permission for things. She made an effort to attend their medical appointments and school events. When the children got hurt, they ran to her, and she comforted them.

Mother testified that early in the dependency proceedings the children did not want to separate from her at the end of visits and they were teary and clingy. More recently, T.A. asked at the end of visits if she and G.A. and the parents would all be together again. T.A. complained visits are too short and she asked Mother why they could not be together. T.A. expressed fear she would be separated from her parents forever. On redirect examination, Mother clarified the children lived with Paternal Grandmother before they were taken into protective custody (from February to May 2016) because during this time Mother participated in a rehabilitation program. The children lived with Mother from May until July 2016, when SSA placed them in protective custody.

Father testified he regularly and consistently visited his children. Father opined he occupied a parental role in his children’s lives because he provided appropriate guidance and discipline, offered them food, and was fully prepared for outings with necessary items such as sunscreen and toys. Father claimed the children relied on him to provide comfort when they were injured. He did school work with T.A. and diapered G.A. He recalled the children were always very happy to see him and they ran and hugged him. Father testified when visits first began, the children were often sad when visits ended. When visits became more routine, Father noticed there was less sadness because the children felt assured he was going to come back and see them. Father noted that although the children did not say they were unhappy where they lived, they always asked when they could come home.

After hearing all of the testimony and considering the parties’ arguments, the court ruled the children were adoptable, both generally and specifically. It determined the first prong of the parent/child beneficial relationship exception under section 366.26 subdivision (c)(1)(B)(i), had been met. The court indicated the second prong required it to consider the strength of the parent child bond. After reciting some of the well-settled standards used to measure the bond, the court stated the question was “are we in that extraordinary circumstance?” It explained, “Because the parental bond is supposed to be an extraordinary exception to going away from the Legislative vision that adoption is in the children’s best interests, as opposed to legal guardianship or another permanent planned living arrangement.” The court likened the situation to that in In re Marcelo B. (2012) 209 Cal.App.4th 635, 641. In Marcelo B., the court indicated there was no evidence the child was suffering distress when the parents were not visiting. (Ibid.)

The court noted there was no evidence the children in this case were unhappy or unsatisfied living with Paternal Grandmother. The court acknowledged there was some evidence T.A. had expressed a desire for everybody to live together. The court noted T.A. was only five years old and could not be “dialed down” with further questioning due to her young age. Moreover, the court determined the credibility of the evidence regarding T.A.’s wishes from Mother’s testimony was questionable. The court concluded, “So, the court’s not a [100] percent certain that the children did indeed state that. But had they, it wouldn’t be sufficient for the court to say, well, then that means the parental bond is established in this case.” The court focused on other relevant factors.

The court indicated the parents had not “come to terms with the reasons that this case came to court in the first place[,]” which was domestic violence and substance abuse. Next, the court considered the children’s ages and the time they had spent away from their parents’ custody. It noted both children had been living with Paternal Grandmother for a significant portion of their lives. After considering other relevant factors, the court concluded the parents had not met their burden of proving the parent/child benefit exception under section 366.26, subdivision (c)(l)(B)(i), applied. The court terminated parental rights.

DISCUSSION

I. Father’s Section 388 Petition

Any parent may, based on a change of circumstance or new evidence, petition the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. (§ 388, subd. (a).) “The juvenile court’s determination to deny a section 388 petition without a hearing is reviewed for abuse of discretion. [Citations.] We must uphold the juvenile court’s denial of appellant’s section 388 petition unless we can determine from the record that its decisions ‘“exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” [Citations.]’ [Citations.]” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.) Here, the record supports the court’s denial of Father’s section 388 petition without a hearing.

Rather than allege circumstances had changed, Father’s section 388 petition essentially denied there was a need for anything to change. Father insisted he was not a drug addict without providing an explanation for the numerous missed tests and dirty tests. Father maintained he was not a violent or angry person, despite Mother’s and the paternal grandparents’ recollection of Father’s angry and violent behavior. Even T.A. remembered seeing Father’s violent behavior towards Mother and Paternal Grandmother. The only explanation he offered about the instances of domestic violence was that Mother was the instigator. Based on our review of the record, it cannot be said the court abused its discretion in denying Father’s section 388 petition without a hearing.

II. Exception to Termination of Parental Rights

Both parents challenge the court’s order terminating their parental rights. At a section .26 hearing, the court may order one of three alternative plans: (1) adoption (necessitating the termination of parental rights); (2) guardianship; or (3) long-term foster care. (§ 366.26, subd. (c)(1), (4)(A).) If the child is adoptable, there is a strong preference for adoption over the other alternatives. (In re S.B. (2008) 164 Cal.App.4th 289, 297.) Once the court determines a child is adoptable, a parent seeking a less restrictive plan has the burden of showing the termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B). Section 366.26, subdivision (c)(1)(B)(i), provides for one such exception when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” This exception is commonly referred to as the benefit exception.

The evidence necessary to trigger this exception has been judicially construed to mean, “the relationship 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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998.) It is not enough to show that the parent and child have a friendly and loving relationship. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) “‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . .’” (Id. at p. 1419.) A parent’s claim of benefit will prevail over the Legislature’s preference for adoptive placement only where the parent has demonstrated the benefits to the child of continuing the parental relationship outweigh the benefits of permanence through adoption. (In re J.C. (2014) 226 Cal.App.4th 503, 531; § 366.26, subd. (c)(1)(B)(i).)

The court appropriately found both parents maintained regular and consistent visitation with the minors. It was the second prong of the benefit exception that troubled the court. The court considered the evidence in light of the appropriate factors to determine whether the benefit of not terminating parental rights outweighed the benefits the children would gain in a permanent home with Paternal Grandmother. We agree with the trial court’s determination the parents failed to meet their burden of showing the benefit exception applied.

Clearly, the parents had a friendly and loving relationship with their children, who greatly enjoyed their visits. The parents consistently brought snacks and engaged with the children during visits. There is no dispute both parents exhibited appropriate parental characteristics. However, it cannot be overlooked that despite extensive services, neither parent advanced to unmonitored visits during the dependency period. The parents occupied a parental role only within the context of monitored visits. This is no indication they were capable of responsibly assuming the role of a full-time caregiver. Indeed, neither parent could offer the children a stable home. Mother continued to reside with her mother, and Father was either homeless or living with friends. Although Mother had been more successful than Father in maintaining employment, her situation could not be described as stable.

Most importantly, neither parent had successfully addressed the problems that caused the children to come into the dependency system. They never achieved long-term sobriety. Mother acknowledged she had a drug problem, and was either unwilling or unable to remain sober despite having completed drug programs. Father remained in denial about his drug and anger issues. Because the parents appeared to be stuck in a cycle of drug abuse, it cannot be said the benefits of the parent/child relationship outweighed the security adoption would provide.

Moreover, there was no evidence the children would be greatly harmed if parental rights were terminated. Although T.A. expressed a desire to live with her entire family, there was no evidence suggesting either T.A. or G.A. wanted to leave the comfort and security of Paternal Grandmother’s home and return to an uncertain and volatile life with either one or both parents. By all accounts, the children were happy and thriving in Paternal Grandmother’s care. At the time of the section .26 hearing, T.A. (five years old) and G.A. (three years old) had lived with Paternal Grandmother for over two years. It was the only tranquil and stable home they had ever known.[2]

Mother focuses on the court’s failure to determine if visitation would continue after adoption and its unwillingness to require a consortium agreement. She argues the evidence was undisputed the children would benefit from continuing parental visits. Certainly after adopting the children the Paternal Grandmother, and not the court, would have authority to decide the amount of visitation (decreasing or increasing the hours). At the hearing, Paternal Grandmother indicated she supported keeping the children in contact with their parents. There was no reason to suspect the children would be stopped from seeing their parents. In any event, whether there is a visitation agreement in place after adoption was not a relevant factor in considering application of the benefit exception. As mentioned above, evidence the children derived some benefit from maintaining contact with their parents does not equate to proof they would be greatly harmed if deprived of the parent/child relationship.[3]

In light of all of the above, we conclude the juvenile court did not abuse its discretion by concluding any detrimental impact from severance of the limited relationships T.A. and G.A. had with their parents outweighed the benefits the children would receive from adoption by their Paternal Grandmother.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.