In re J.B.












Filed 3/9/17 In re J.B. CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.B., a Person Coming Under the Juvenile Court Law.


SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.M.,

Defendant and Appellant.



E066717

(Super.Ct.No. J253895)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
Appellant S.M. (mother)appeals from a juvenile court’s order terminating her parental rights as to her son, J.B. (the child). She claims that the beneficial parental relationship exception applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)[1] We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, the San Bernardino County Children and Family Services (CFS) received two referrals regarding the child. The first one alleged that mother was in the hospital for seizures and tremors and, was therefore, incapable of caring for the child. The second referral alleged that the child was seen outside the apartment complex several times, unsupervised. A social worker went to mother’s home in January 2014, and mother stated that she suffered from diabetes and seizures and had other medical issues, as a result. The social worker expressed her concern about her ability to care for the child. Mother insisted that she could take care of him and said she had help from her father and stepmother. Mother indicated that the child’s father passed away one year after the child was born.
On March 13, 2014, CFS received another referral, which alleged that mother had a physical altercation with her older son, A.S. Mother had a dependency case with that son and was attempting to reunify with him.A.S. was having a weekend visit with her when they had an altercation on March 8, 2014. According to relatives, mother’s mental stability and health deteriorated after the incident. On March 11, 2014, the child was found swimming in the apartment complex pool unsupervised, while mother was passed out in her apartment. Mother was transported to the hospital and kept there on a 72-hour hold. She had an in-home support care worker who then took care of the child. The social worker spoke with the grandparents, and they said they could not provide further support. It was agreed that the child should be taken into protective custody.
On March 20, 2014, CFS filed a section 300 petition on behalf of the child, who was four years old at the time.The petition alleged that the child came within the provisions of section 300, subdivision (b) (failure to protect) and (g) (no provision for support).The petition alleged that mother was not able to provide adequate supervision of the child due to her medical condition, and the whereabouts of the child’s alleged father were unknown, although mother had indicated that he passed away in 2010.
The court held a detention hearing on March 21, 2014. The court detained the child in foster care. The court ordered supervised visitation once a week.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on April 7, 2014, recommending that reunification services be provided to mother.The social worker interviewed mother, who said she was deaf in both ears, had type 1 diabetes, epilepsy, and stiff-man syndrome. She took several medications for these illnesses and had an insulin pump, which pumped insulin 24 hours a day. Mother said her illnesses were chronic and unpredictable. She did not know when she was going to have a seizure or when her stiff-man syndrome would activate. Her illnesses rendered her unconscious at times. Mother added that she felt sad and depressed and thought she needed to see a therapist. She said that, in the past, her father and stepmother helped care for the child; however, they told her they now wanted nothing to do with her. Mother said she had an in-home caregiver who came to her home every day for four hours and was willing to help with the child.
The social worker was concerned about mother’s ability to care for the child. She said mother tended to pass out without warning. She noted that mother required her own in-home care support, and that mother was in and out of the hospital; without any additional outside support, there was no one to take care of the child when she was hospitalized. Since mother’s medical issues were unpredictable, the social worker opined that the child should not be returned home, unless there was an extensive safety plan put in place.
The social worker further reported that she observed a visit between mother and the child on April 3, 2014. Mother and the child appeared to enjoy the time together. The social worker opined that the child was appropriately attached to mother.
The court held a jurisdiction/disposition hearing on April 10, 2014. It found that the child came within the provisions of section 300, subdivision (b), declared him a dependent of the court, removed him from mother’s custody, and maintained him in foster care. Mrs. D., mother’s in-home caretaker, requested the court to place the child in her care and offered to bring the child with her during the day, when she went to take care of mother. The court agreed. It ordered mother to participate in reunification services and orderedsupervised visitation at mother’s home five times a week for four hours each.
On August 4, 2014, the court reduced visits to twice a week, for two hours, after it was reported that, during a visit, mother became upset with Mrs. D. and attacked her. Mrs. D. reported that mother had not been taking her medication properly. Mrs. D. said she no longer felt safe interacting with mother, and she quit her job as mother’s care provider.
Six-month Status Review
The social worker filed a six-month status review report on October 3, 2014, recommending that reunification services be continued.The social worker reported that mother had made moderate progress in her case plan, as she had been unable to fully engage in services due to her ongoing medical issues and seizure episodes.
The social worker also reported that the child remained in his placement with Mr. and Mrs. D. and was adjusting well, especially since he already had a bond with the caretaker. The child told the social worker that he loved Mrs. D. and wanted to stay in her home. The social worker further reported he had been generally having consistent visits with mother with positive interactions.
The court held a six-month review hearing on October 10, 2014.It continued reunification services and ordered supervised visits once a week for two hours.
Twelve-month Status Review
The social worker filed a 12-month status review report on March 17, 2015, and recommended that mother’s reunification services be continued.Mother was making significant progress in her case plan. She completed parenting education and individual counseling services, but still needed to complete her domestic violence program and conjoint counseling services with the child and her older son.The social worker liberalized mother’s visits to take place at her home. The visits were appropriate, with no issues.
The court held a contested 12-month review hearing on March 27, 2015. The court continued mother’s services and ordered visits to be twice a week for two hours each.
Eighteen-month Status Review
The social worker filed an 18-month status review report on September 8, 2015, recommending that the child be returned to mother’s custody under a plan of family maintenance.Mother and the child had been having extended weekday visits, which were going well. The social worker reported that the child appeared to be well-bonded with mother, and that he said he wanted to return to his mother’s care.
At the review hearing on September 16, 2015, the court ordered visitation to be unsupervised and ordered that mother be allowed overnight and weekend visits, in order to transition the child to her custody. The court continued the matter to October 21, 2015, for a further review hearing.
On September 24, 2015, CFS received a referral alleging emotional abuse and general neglect of the child by mother. During overnight and weekend visits, mother had been taking the child to her boyfriend’s house. The child said the boyfriend used profanity in front of him. The child said that, while he wanted to return to mother’s custody, he did not want to be around her boyfriend. Furthermore, the child told the social worker he witnessed a physical altercation between mother and Mrs. D. at a visit, where they were pulling each other’s hair. Mother appeared to be under the influence.
The court held a review hearing on October 21, 2015, and ordered that visitation be changed to extended day visits. Counsel for the child set the matter contested because she did not agree with the recommendation to return the child home. The court continued the matter for a contested 18-month review.
On December 17, 2015, the social worker filed some additional information with the court and reported that she spoke with Mrs. D., who stated that on November 21, 2015, she went to mother’s home to pick up the child after his visit, but was unable to get in contact with mother, despite multiple calls and text messages. Mrs. D. called the police and then saw mother’s boyfriend enter mother’s apartment, since he had the key. When the police arrived, Mrs. D. told the child to come out of the apartment because the boyfriend was not allowed to be around him. Mrs. D. then took the child home. Mrs. D. said the child told her the boyfriend yelled at mother and cursed in her face, and he (the child) was scared he was going to hurt her. The child further said the boyfriend played “rough” when they had a pillow fight. He was hitting him really hard, and the child was crying and begging him to stop, but the boyfriend would not. Based on these events, the social worker recommended terminating mother’s services, as she had not benefitted from them.
The court held a contested 18-month review hearing on December 17, 2015. The child testified and said he did not like mother’s boyfriend because when they were having a pillow fight, he hurt him. The child added that he told the boyfriend to stop because he was hitting him really hard with the pillow. The child stated that he considered mother’s boyfriend a bad guy because he would say the “F” word to mother when they fought. The child said it made him feel “sad and scared” when that happened. Mother also testified at the hearing. She said she recognized that she had been in some violent relationships in the past. She also said she would not let herself do so any longer.When asked whether she thought she played any role in the child not being with her at that time, she said no and she did not understand exactly why the child was not with her.
After hearing testimony, the court terminated mother’s services, noting that she had not benefitted from them and that there would be absolutely no benefit from continued services.The court added that it felt there was a “pretty strong bond” between mother and the child, so it was not prepared to sever the relationship yet. The court set a section 366.26 hearing.
Section 366.26
The social worker filed a section 366.26 report on April 11, 2016, requestinga three-month continuance of the hearing in order to determine the most appropriate permanent plan for the child.The social worker reported on the supervised visits mother had been having with the child. Despite being told not to discuss the dependency with the child, mother told the child she was going to get him back. The social worker reported that, at visits, mother and the child shared snacks, read books, and played. The child said he enjoyed the visits. Furthermore, the social worker said Mr. and Mrs. D. had expressed their desire to adopt the child, but the child started crying and said he did not want to be adopted, but wanted to live with mother. However, Mrs. D. told him they loved him and wanted him to live with them forever. He asked if he could still see mother, and when she said yes, he calmed down and said, “Well, as long as I can still see my mom, then I am ok with it.” Subsequently, on March 6, 2016, the social worker met with mother and the child and asked if the child had thought about the plan of adoption. He said, “Yes. I am ok with being adopted, but I want my grandmother to adopt me, not [Mrs. D.]”He explained that Mrs. D. did not let him have gun toys, which is why he did not want her to adopt him.
On April 11, 2016, the social worker received a referral alleging that there was too much fighting in Mr. and Mrs. D.’s home and that the child’s hygienic needs were not being met. However, the referral was closed as the allegations were unfounded, since there did not appear to be any concerns regarding the current caregivers. Furthermore, the child said he liked staying with Mr. and Mrs. D., and he referred to them as “mom and dad.” The social worker reported that, despite multiple explanations, mother was confused about the status of her case and thought she would be reunifying with the child. She also told the child to make statements that his placement was unsafe and to refuse to be adopted by the current caregivers. The social worker noted that the child had never exhibited any concerns regarding his safety, and he continued to say he wanted to stay in his placement long-term. The social worker recommended that mother’s visits be suspended since she felt they would cause a risk of harm to the child’s emotional well-being, as mother continued to make false promises and pressure the child to refuse adoption.
The court held a section 366.26 hearing on April 14, 2016. The social worker testified that it was detrimental to continue visits because the goal was permanency, yet mother insisted on discussing the case with the child and telling him to refuse adoption.The child’s counsel informed the court that the child wanted to visit mother, but noted that there was “coaching” going on by mother and the caregivers as to what the child should say to the social worker. The court decided not to suspend visits, but told mother’s counsel and the social worker to instruct mother and the caregiver not to discuss the case with the child.
The social worker filed an addendum report on July 29, 2016, and recommended that the permanent plan of adoption be implemented.The social worker reported that Mr. and Mrs. D. were ready to adopt the child, and said they loved him as their own and could not see their lives without him. Moreover, the child said he wanted to be adopted by them and understood that adoption meant he would be with them forever. The social worker stated there appeared to be a strong attachment between the child and Mr. and Mrs. D.
At a hearing on August 4, 2016, the court ordered mother’s visitations to be reduced to once a week because she continued to discuss the case with the child and told him he would not be adopted.
The court held a contested section 366.26 hearing on August 25, 2016. Mother testified that the child was happy to see her at visits and would run into her arms. She said they would play games and do puzzles, and he would sing to her. When asked why it would be in his best interest to continue the relationship, she said it was because she was his mother, he needed her, and she was the one who could take care of his needs. The child, who was in second grade, also testified. When asked if he wanted to live with Mrs. D., he repeatedly said, “Yep, yep, yep.” He added that if he got adopted, Mrs. D. would let him go to Legoland. When asked how he would feel if he did not get to see mother anymore, he said he would feel okay. When asked a second time, he again said he would be okay because he could “always memorize her in [his] head.”
After hearing testimony, mother’s counsel objected to the termination of parental rights and argued that mother believed there was a strong bond between her and the child. The court found that mother failed to meet her burden, terminated parental rights, and set adoption as the permanent plan.
ANALYSIS
The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i).We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the 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).) The phrase “ ‘benefit from continuing the . . . relationship’ ” refers 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent’s burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
“There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies.”(In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)However, “[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” (Id. at p. 1314.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the lightmost favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of her position, mother asserts that she had regular and consistent visits with the child. She further claims that she occupied a parental role in his life, resulting in “significant, positive, emotional attachment,” and that severing their relationship would deprive him of a “substantial, positive emotional attachment, such that [he] is suffering, and [would] continue to suffer, great harm.”The evidence she points to is that she and the child enjoyed their visits together and shared positive interactions, that CFS described her as “appropriate and engaging during the visits,” and that the child was always happy to see her. She adds that they spent their visits sharing snacks, engaging in play, and reading books. Mother also notes that the child had a “fully-formed, deeply internalized cognitive idea that [she was] indeed his mother, not just [a] ‘friendly visitor.’”
Mother’s interactions with the child do not even begin to demonstrate that her relationship with him promoted his well-being “to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although the record reflects that the visits went well, mother has not proffered any evidence to support a finding that the child had a “substantial, positive emotional attachment [with her] such that the child would be greatly harmed” if the relationship was severed. (Ibid.)
Moreover, the evidence showed that the child and his current caretakers had a strong mutual attachment. By the time of the section 366.26 hearing, the child had lived with them for over two years. Mr. and Mrs. D. said they loved the child as their own and could not see their lives without him. The child said he wanted to be adopted by them and understood that adoption meant he would be with them forever.
Mother claims that the child was “fiercely” bonded with her and then argues that CFS “inappropriately overemphasized [the child’s] bond with his foster parents.”At the same time, she states that the child was confused about where he wanted to live, since he said he wanted to stay with her, but subsequently said he wanted to stay with Mr. and Mrs. D. However, the child was not confused at the section 366.26 hearing. When asked if he wanted to live with Mrs. D., he repeatedly said yes.He also said he would feel “okay” if he did not get to see mother anymore. When asked a second time how he would feel, he again said he would be “okay” because he could “always memorize her in [his] head.”Such statements do not demonstrate any conflict on the child’s part and certainly do not demonstrate a fierce bond with mother. The child clearly indicated that he wanted to stay with Mr. and Mrs. D., which is not surprising, considering how long he had lived with them and that he called them “mom and dad.”
Finally, mother contends that “adoption is not as permanent an arrangement as the Department might like us to think,” since “[a]doptive parents can relinquish their parental rights . . . and . . . might simply walk away, as can any parent, giving rise to yet another section 300 proceeding.” However, as mother concedes, adoption is the permanent plan preferred by the Legislature. (Celine R., supra, 31 Cal.4th at p. 53.) Mr. and Mrs. D. have stated that they were prepared to adopt the child and loved him as their own. There is no indication, nor does mother allege, that they would adopt the child and then “simply walk away.”
Ultimately, mother failed to meet her burden of showing that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i),applied.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
Acting P. J.
We concur:



MILLER
J.



SLOUGH
J.




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[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.