Filed 11/30/18 In re C.J. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Ana L. Espana, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Jesica N. Fellman, for Plaintiff and Respondent.

C.W. appeals the juvenile court orders terminating her parental rights to her minor daughters C.J. and A.J. under Welfare and Institutions Code section 366.26.[1] C.W. contends the court erred by finding the beneficial parent-child relationship exception to adoption did not apply. We reject this contention and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On August 26, 2016, the San Diego County Health and Human Services Agency (Agency) filed petitions under section 300, subdivision (b), on behalf of seven-year-old C.J. and six-year-old A.J. (together, the minors), alleging they had suffered or were at substantial risk of suffering serious physical harm or illness in C.W.'s care. The petitions further alleged C.W. suffered from mental illness that required her to be institutionalized and rendered her incapable of caring for the minors.

The day before the petitions were filed, C.W., who was living on the streets, called the police and reported that a security guard was harassing her. When officers arrived, C.W.'s behavior was erratic. She was yelling at other homeless people nearby and accusing people of trying to hurt her. Police dispatched a member of the Psychiatric Emergency Response Team (PERT) to the scene to assess C.W. The PERT clinician placed C.W. on a psychiatric hold under section 5150 and transported her to the hospital. C.J., who was under C.W.'s care at the time, was taken to Polinsky Children's Center. A.J. was in the care of her maternal great-grandmother, who reported to the Agency that she was the child's primary caretaker because C.W. could not adequately manage A.J.'s asthma and respiratory illness.

The Agency's investigation revealed that C.W. had not been able to maintain stable housing in the months leading up to the petitions and had been living on the street and in shelters with C.J.[2] The Agency had also received numerous referrals about C.W. and the minors before they were taken into protective custody. The PERT clinician who responded to the scene on August 25, 2016, told the investigating social worker that C.W. was well known to the police and that she and C.J. had recently been in and out of several shelters. C.W.'s family members and C.J. also reported that C.W. had been homeless for an extended period. While hospitalized, C.W. was diagnosed with schizophrenia and prescribed medication.

At the detention hearing on August 29, 2016, the court made prima facie findings on the petitions and detained both minors in the care of the maternal great-grandmother, B.H. At the initial jurisdiction and disposition hearing, C.W. left the hearing before the matter was called and her counsel set the matter for trial. In its report for the next hearing, the Agency recommended that the minors be declared dependents and continue their placement with B.H. and her husband. The Agency recommended supervised visitation for C.W. with discretion given to the minors' counsel to lift the supervision requirement. Before the contested hearing, the Agency also amended the petition to reflect C.W.'s mental health diagnosis as non-specified psychosis and to note she had a history of depression and schizophrenia.

Throughout September and October, C.W. maintained regular visitation with the minors at the maternal great-grandmother's home, however, C.W. had a tense relationship with B.H. and in early November B.H. refused to continue to supervise the visits. At the contested jurisdiction and disposition hearing, the juvenile court made true findings on the petitions and continued the contested disposition hearing to December.

C.W. obtained housing at a shelter and reported to the Agency she was seeing a psychiatrist there and taking prescription medication for her mental illness. A therapist at the shelter confirmed C.W. was being treated by the psychiatrist and reported that he was also providing therapy to C.W. on a weekly basis. C.W. visited the minors weekly at a visitation center. In early December, a staff member at the visitation center reported that C.W. had become increasingly emotional during her visits and had difficultly focusing on the minors. At the continued disposition hearing on December 29, 2018, the juvenile court adopted the Agency's recommendation to maintain the minors' placement with B.H. and ordered reunification services for C.W.

In the initial six-month review period, C.W. completed two parenting courses and a family therapy program. She also began individual therapy with a new provider. C.W. participated in weekly supervised visits with the minors. The Agency reported that C.W.'s visits were positive and that she acted appropriately, responded to the minors' needs, and demonstrated a parental role. The minors were both doing well in their placement with their great-grandmother. C.J. was in second grade and was doing well in school. A.J. was also doing well in her first grade class, and was receiving additional help because of absences caused by her allergies and asthma.

Despite regular visitation with C.W., both minors reported to their therapist that they wanted to live with B.H. and did not want unsupervised visitation with C.W. A.J. told the therapist that she was afraid to live with her mother and C.J. said she was scared of C.W. but felt safe living with B.H. The minors' individual therapist reported to the family's social worker a concern that B.H.'s poor relationship with C.W. might be affecting the minors' attitudes towards C.W. Both B.H. and her husband told the social worker they did not want C.W. to have unsupervised visitation with the minors.

The Agency's report for the review hearing recommended the minors continue their placement with B.H. and that the family begin conjoint therapy with the goal of transitioning to unsupervised visitation in the next review period. At the initial review hearing, C.W. contested the Agency's recommendation and the matter was set for trial. At the August 4, 2017 contested hearing, the parties reached a settlement and agreed C.W. would have short, unsupervised visitation with the minors.

On September 21, 2017, however, the minors' attorney filed a section 388 petition to change the prior order and seeking to revert to supervised visitation after two concerning conjoint therapy sessions between the minors and C.W. held in late August. In the petition, the minors' attorney stated that in the first conjoint therapy session C.W. yelled at the minors and C.J. reported that after the session, during unsupervised visitation, C.W. slapped her. The therapist also reported that C.W. was exhibiting delusions during the first session, stating she was in a federal protection program and that she wanted to reunite with two other children living on the east coast.[3]

Because of C.W.'s concerning behavior, the family's social worker attended the second therapy session. She witnessed C.W. yelling at the minors, and the minors hiding under a table and crying in fear. C.W. also told the therapist that the Agency told her she could hit the minors. After this visit, the therapist terminated conjoint therapy and recommended that C.W. receive a psychological evaluation. C.W.'s individual therapist also recommended an evaluation. The minors told their therapist they were afraid of C.W. C.J. said she did not want to visit or live with C.W. and A.J. did not want to visit without someone to protect her.

On October 16, 2017, the court made a prima facie finding on the minors' attorney's section 388 petition and ordered supervised visitation for C.W. pending a trial on the petition. The court set the trial for November 13, 2017, to coincide with the 12-month review hearing.

Prior to the hearing on the section 388 petition, sometime in September, C.W. left San Diego and drove to Philadelphia. C.W. stopped visiting with the minors and had no phone contact with them, telling the family's social worker that her children needed a break from her. In its report for the 12-month review hearing, the Agency concluded it was unlikely that the minors could be returned to C.W. by the end of the review period, or within 18 months, and recommended termination of C.W.'s parental rights. The report noted that the minors wanted to continue to live with B.H., remained afraid of C.W. and did not want to live with C.W.

At the November 13, 2017 hearing, C.W. contested the Agency's recommendation and the juvenile court set the matter for trial. The court also continued the minors' section 388 petition since the issues and evidence were overlapping. C.W. attended the hearing and after told the social worker she was moving back to California and would be living in Brawley, but intended to return to Pennsylvania once the case was resolved. A few days later, the social worker submitted a referral for C.W. to begin supervised visitation again. C.W. had a supervised visit with the minors on December 20, 2017, and the visit went well.[4]

The contested 12-month review and continued section 388 petition hearing took place on January 5, 2018. The court received the Agency's reports into evidence and heard the testimony of the family's social worker and C.W. At the conclusion of the hearing, the juvenile court terminated C.W.'s reunification services and set a permanency planning hearing under section 366.26. The court also granted the minors' section 388 petition, ordering that any future visitation be supervised.

By April, C.W. had started individual therapy and had attended four sessions. She had also secured housing. Based on this progress, she filed a section 388 petition requesting placement of the minors. The Agency opposed the petition. In its report in response, the Agency recognized C.W. had taken positive steps, but noted that the change was very recent and that C.W. expressed little insight into how her mental illness affected the minors. The juvenile court denied the petition, finding C.W. failed to make a prima facie showing of changed circumstances or that the requested change was in in the minors' best interests.

The contested permanency planning hearing took place on June 6, 2018. In its report for the hearing, the Agency recommended that parental rights be terminated and the court order a permanent plan of adoption for the minors. The Agency's report noted that C.W. had continued to attend supervised visitation with the minors regularly, and that C.W. was appropriate during the visits and the minors appeared happy in her presence.

Both minors, however, were adamant that they did not want to live with C.W. C.J. understood the meaning of the word adoption and told the social worker she wanted to be adopted by B.H. A.J. also said she wanted to be adopted by her great-grandmother. The minors were thriving in the care of B.H. and her husband. Both girls were doing well in school and all of their physical and emotional needs were being met by their caregivers. The caregivers expressed their desire and commitment to adopting the minors, and the Agency noted the caregivers had a large extended family supporting them. The Agency's report opined that the minors were also generally adoptable, with 15 possible adoptive families matching the sibling set's characteristics with approved home studies.

At the hearing, the court received the Agency's reports into evidence. The social worker attended the hearing, but was not called to testify. In her closing argument, C.W.'s counsel asserted that the beneficial parent-child relationship exception to adoption applied and that the court should keep C.W.'s parental rights intact and order a legal guardianship for the minors. After argument by counsel, the juvenile court announced its order terminating parental rights. The court noted that C.W.'s visitation was regular and consistent, but found that there was no evidence that the minors had a significant positive emotional attachment to C.W. The court also found that any positive bond between C.W. and the minors was outweighed by the significant benefits of adoption and that adoption was in the minors' best interest.

DISCUSSION

I

After reunification services are terminated, the focus of a dependency proceeding shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement that allows the caregiver to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) At the permanency planning hearing, the court has three options:

(1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of the specified statutory exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.) "The parent has the burden of establishing the existence of any circumstance that constitutes an exception to termination of parental rights." (In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "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.)

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Courts have interpreted the phrase " 'benefit from continuing the . . . relationship' " to refer to a parent-child relationship 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. 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." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J. (2009) 175 Cal.App.4th 922, 936.)

The parent asserting the exception will not meet his or her burden by showing the existence of a "friendly and loving relationship," an emotional bond with the parent, or pleasant, even frequent, visits. (In re J.C. (2014) 226 Cal.App.4th 503, 529; In re C.F. (2011) 193 Cal.App.4th 549, 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re L.S. (2014) 230 Cal.App.4th 1183, 1200 ["To avoid termination of parental rights, it is not enough to show that a parent-child bond exists"].) Rather, there must be a parental role in the child's life, resulting in a significant, positive emotional attachment from the child to parent that if severed would result in harm to the child. (In re C.F., supra, at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; see also In re J.C., supra, at p. 529 [observing that interaction between a natural parent and child will always confer some incidental benefit to the child and for the exception to apply, " 'a parental relationship is necessary' "].)

"We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) " 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." [Citation.] "It is judicial action and not judicial reasoning which is the subject of review. . . ." ' " (In re Jonathan B. (1992) 5 Cal.App.4th 873, 876.)

B

C.W. contends the juvenile court erred by finding the beneficial parent-child relationship exception to adoption did not apply. She asserts that she maintained regular visitation with the minors throughout their dependency and that the benefit of her continued relationship with them outweighed the benefits adoption affords. The juvenile court found that C.W.'s visitation was regular and consistent, but that there was no evidence that the minors shared a strong, positive bond with C.W. The court's finding that C.W. and the minors did not share a beneficial parental relationship is sufficiently supported by the evidence.

As discussed, the beneficial parent-child relationship exception to adoption requires the court to "balance[] the strength and quality of the natural parent[-]child relationship . . . against the security and the sense of belonging a new family would confer." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Said another way, the exception applies only if a parent shows that his or her relationship with the child " ' "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 re Anthony B., supra, 239 Cal.App.4th at pp. 396-397.)

Although C.W.'s interactions with the minors during their supervised visitation in the months after reunification services were terminated and at certain points at the beginning of the reunification period were positive, this evidence does not show that C.W. occupied a parental role in the minors' lives. At the time of the permanency planning hearing, A.J. had been in B.H.'s and her husband's care for most of her life, and C.J. had been in their care for almost two years. Neither girl wanted to live with C.W. and C.J. expressed great fear of C.W., telling the family's social workers and her therapist she had been abused and traumatized while living on the streets with C.W. Critically, when C.W. moved from San Diego to Pennsylvania in September 2017, abruptly ending contact with the minors for over a month, no evidence showed either girl was distressed or bothered by C.W.'s absence from their lives.

Rather, both girls were thriving in their caregivers' home and looked to B.H. and her husband to fulfill all their needs. Although there was evidence that the minors enjoyed spending time with C.W. during their visits and that C.W. responded appropriately to them during her visits after reunification services were terminated, these facts alone do not establish that C.W. had a parental role in the minors' lives. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 ["a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child's need for a parent."].)

Pointing to the concern voiced by the minors' therapist a year before the permanency planning hearing that B.H.'s negative views of C.W. might be influencing the minors' opinions of C.W., C.W. asserts here that the minors' opinions should not be afforded significant weight. However, when the Agency questioned the eight-year-old and nine-year-old about negative statements C.W. alleged B.H. had made to them, both girls strongly denied the allegation. Aside from the single comment by the therapist in June 2017 (and negative statements made by C.W. and her mother about B.H.) there was no indication that B.H. had inappropriately influenced the minors. Rather, the evidence showed B.H. and her husband had provided the minors with a safe and stable home throughout the dependency.

Sufficient evidence supported the court's finding that C.W. had not shown the existence of a beneficial parent-child relationship, and the court's conclusion that termination of C.W.'s parental rights would not be detrimental to the minors did not constitute an abuse of discretion.

DISPOSITION

The orders are affirmed.

IRION, J.

WE CONCUR:

HALLER, Acting P. J.

GUERRERO, J.