In re J.H.
In re J.H.
Filed 12/3/13 In re J.H. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re J.H.
et al., a Person Coming Under the Juvenile Court Law.
HUMBOLDT
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
J.T. AND
J.H.,
Defendants and Appellants.
A138453
(Humboldt
County
Super. Ct.
No. JV100150-1, JV100150-2, JV100150-3)
Parents
appeal from an order terminating their rights to their nine-year-old son and eight-
and seven-year-old daughters. They contend the court erred in finding that the
parental benefit exception (Welf. & Inst. Code,
§ 366.26, subd. (c)(1)(B)(i)) did not apply. We affirm.
On
October 13, 2010, the
County Department of Health and Human Services (hereinafter “the departmentâ€)
filed a petition pursuant to section 300, subdivision (b), alleging that the
children had suffered, or there was a substantial risk that they would suffer,
serious physical harm or
illness as a result of the failure or inability of their parents to
supervise or protect them adequately, by the willful or negligent failure of
the parents to provide the children with adequate food, clothing, shelter, or
medical treatment, and by the inability of the parents to provide regular care
for the children due to the parents’ mental illness, developmental disability,
or substance abuse.
According
to the department’s detention report, on October 8, 2010, police contacted the department after
conducting a welfare check and finding the living conditions at the family home
to be “filthy.†The social worker and the police officer walked through the
trailer which was found to be in “really bad condition.†The sink was
overflowing with dishes and moldy food. There was one bed for the family to
sleep on and there were piles of clothing and other items surrounding the bed
making it difficult for the children to leave in case of emergency. There were
dangling exposed electrical wires running through the trailer. The toilet was
clogged and the shower entrance was blocked by cleaning products and spray
cans. The trailer door could not be opened from inside the trailer. The area
outside the RV was filled with piles of boxes, cables, tools, and electronics
that the family had collected throughout the years. The social worker concluded
that the home, both inside and out, was an unsafe place for children. The children were detained and placed with
their paternal aunt.
On
October 14, the court vested the care and custody of the children with the
department and set a jurisdiction hearing for November 1.
The
department’s jurisdiction report details the “long standing struggle by [the]
parents to adequately care for their children.â€
The report explains that parents had numerous prior referrals to
Humboldt County Child Welfare Services based on allegations of general neglect
and the parents’ use of methamphetamine and that as a result, the family had
received family maintenance services on three prior occasions – from April to
December 2005, from September to November 2006, and from June 2008, to May
2009. Both the son and older daughter had tested positive for methamphetamine
at birth and the younger daughter tested positive for THC at birth.
On
November 1, 2010, parents
submitted to jurisdiction based on an agreement to amend the petition to strike
the words “substance abuse†from the section 300, subdivision (b)(1)
allegation. The court sustained the
amended petition and found the children to be described by section 300,
subdivision (b). With the home having been cleaned, the children were returned
to their parents’ care on the same day.
At
the December 6, 2010
dispositional hearing, the court continued the children in the home of the
parents with family maintenance services. A review hearing was set for June 6, 2011.
The
department’s six-month review status report stated that the parents were
“struggling to consistently provide a safe home environment for their
children.†The department recommended that
the children continue in the home of their mother and father with six more
months of family maintenance services. The report noted that in December 2010
and March and April 2011, the social worker had numerous contacts with the
parents in which she instructed the parents to clean the trailer and the area
surrounding the trailer. In addition, several additional referrals for neglect
were made during the review period. On January
10, 2011, the department received a referral alleging general
neglect after the social worker with Northcoast Children’s Services made an
unannounced home visit and found the parents sleeping deeply and the then four-year-old
daughter unattended. On January 17, 2011, the police
department went to the family’s home to investigate a referral alleging
possible physical abuse of the older daughter by mother. The officer determined
that mother’s cigarette accidentally hit the child on her left arm due to the
cramped living quarters. The officer
found the living conditions to be “unacceptable†due to the amount of garbage
and other items scattered around the trailer. Finally, on March 29, 2011, the
school secretary called the police department after the parents had not yet
picked up the children one hour after school was released. The secretary
reported that the children are often late to school, have poor attendance, and
often come to school “smelly and dirty.†At the six-month review hearing, the
court found that the parents had made minimal progress with the case plan and
ordered six more months of family maintenance services for mother and father.
On September 6, 2011, the department filed a supplemental petition
alleging, among other things, that “[a]s of the writing of [the] petition,
neither the father nor mother have complied with their Court ordered case plans,â€
that “[t]he parents have been prompted to clean up their residence on multiple
occasions,†and that “[o]n more than one occasion the parents refused to allow
the ongoing social worker to view the interior of the residence.â€
The department’s detention report on the supplemental
petition explained that since the six-month
review hearing, the family was evicted from their trailer and they moved in
with a paternal aunt. The social worker visited the paternal aunt’s home on July
27, 2011, and observed that the children were dirty, were not appropriately
dressed, and there were items everywhere in front of the house. The social worker also reported that the aunt’s
home was in foreclosure and parents did not have a plan for where they would
live when they could no longer stay there. Although the home was in an
acceptable condition when the social worker returned on August 23, a week later
the department received a referral alleging that the home was unsanitary, had
no electricity due to foreclosure, had no stove or refrigerator, and the front
yard was filled with garbage and nails. On
or about September 1, 2011, the social worker made an unannounced home visit to
the residence. The social worker found piles of “miscellaneous stuff†in front
of the home. The carpet inside the home was covered with mud and every room in
the house was cluttered with food crumbs, mud, laundry, and clutter. The
mattresses and blankets the children slept on were extremely soiled with areas
of black on them. The report stated that mother “appeared not to recognize the
importance of maintaining the residence and blamed the conditions on her
children and their friends.†The social worker determined that the children
needed to be placed in protective custody and called the police department to
assist with the removal. The parents were upset when they were informed that
the children were to be removed from their custody, but mother allegedly told
the social worker to “hurry up and get this done, I want to go back to bed.†On or about September 12, 2011, a social
worker returned to the home and found it to be free from clutter. On October 6, 2011, the court held a
jurisdiction hearing on the petition and continued the order for the children
to remain out of the parents’ custody.
At the disposition hearing on November
8, 2011, the court continued the children’s out-of-home placement and ordered
six more months of family reunification services for mother and father. The court
modified the case plan to include provisions requiring parents to randomly drug
test as requested by the social worker and to complete substance abuse
assessments. Court Appointed Special Advocates (CASA) were appointed for the
children.
On February 1, 2012, the department
filed a section 388 petition seeking discretion to transition back to
follow the department’s instructions regarding time, place, and manner for
unsupervised visits. The section 388 report indicated that parents had not been
abiding by the department’s instructions to keep it informed of arrangements
they made for unsupervised visits. In addition, the report indicated that during
a recent visit, parents neglected to attend to their daughter’s urgent medical
needs. The report explains that following the youngest daughter’s eye surgery,
parents did not apply her medicine despite having received instructions from
the doctor. The child told the foster care provider that her parents had gotten
into a fight and mother had left the visit without applying medicine to her
eye. Mother told the social worker that she did not apply the medicine because
she did not want to “hold [her daughter] down and apply the medicine against [her]
will.†According to the nurse assigned to the daughter’s case, the parents
“seemed unconcerned†about the details of the child’s pre- and post-operative
care and indicated to her that the foster parents “will take care of it.†The
children’s CASAs supported the department’s request for supervised visitation. On
February 22, 2012, the court granted the petition and ordered that parents
would be offered a minimum of five hours of supervised visitation per week.
In advance of the six-month review
hearing, the social worker reported that parents had made minimal progress on
completing their case plans. He also reported that during the time since the
children were taken into protective
custody,
parents refused six of eleven requests that they drug test. At the contested hearing on June 6, the court
ordered parents to abide by the terms of the case plan, including random drug
tests.
On September 26, 2012, the court
received a report prepared for the twelve-month review hearing in which the
social worker reported that parents had not demonstrated any progress toward
obtaining a residence suitable for reunification, had not followed through with
steps necessary to secure income and had not drug tested during the reporting
period. He opined further that, while parents were never late for visits and
their behavior toward their children during supervised visits was consistently
loving, he could not find any evidence to support an expectation that the
family would be able to reunify if services were continued. The report
recommended that family reunification services be terminated and that a
permanent plan of guardianship be ordered. On November 14, 2012, the department
submitted an addendum changing its recommendation from a permanent plan of
guardianship to a permanent plan of adoption.
At a contested hearing conducted on
November 14, 2012, the court terminated reunification services for both parents
and set a section 366.26 hearing. The social worker’s selection and implementation
report recommends termination of parental rights and selection of adoption as
the permanent plan for the children. The social worker opined that “[w]hile
there is a connection between the children and their parents, it does not
outweigh the benefits of adoption. Other than visitation, these parents have
made no efforts to meet their parental obligations by availing themselves of
the services offered.†The report explains that while father has found
employment, the parents remain homeless. In addition, parents’ monitoring of
their children’s health and wellbeing was inconsistent and parents have not
proven themselves to be free from drug use.
The preliminary adoption assessment submitted
in advance of the hearing recommends termination of parental rights and
selection of adoption as the permanent plan. The report indicates that the
children have been living with their maternal uncle and his partner for about a
year and the preliminary evaluation of the caregivers shows them to be suitable
and committed to the adoption of the children. “The children are developing a
trusting and loving relationship with their potential adoptive family and would
benefit from the establishment of a permanent parent/child relationship through
adoption.†The assessment determined that the termination of parental rights
would not be detrimental to the children as the children look to the potential
adoptive family to meet their needs, not their parents. The children’s CASAs agreed
with the recommendation that the court terminate parental rights and select
adoption as the permanent plan.
At the contested section 366.26
hearing held on March 13, 2013, mother
testified that she has a strong bond with her children and the children
referred to her as “momâ€. She described her
visits with the children as “good†and characterized her children as excited to
see her. She indicated that while she wanted the children to be returned to her,
she did not have her own home. She was opposed to adoption and would prefer a
plan of guardianship.
After considering the evidence and
testimony adduced at the hearing, the court declined to make a finding that the
benefit of the parental relationship outweighed the benefit of adoption. The court found by clear and convincing
evidence that the children would be adopted, terminated mother and father’s
parental rights, and identified adoption as the permanent plan.
Parents filed timely
DISCUSSION
“After
reunification services have terminated, the focus of a dependency proceeding
shifts from family preservation to promoting the best interest of the child
including the child's interest in a ‘placement that is stable, permanent, and
that allows the caretaker to make a full emotional commitment to the child.
[Citation.]’ †(In re Fernando M.
(2006) 138 Cal.App.4th 529, 534.) At the selection and implementation 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 is the preferred plan and, absent an enumerated exception, the
juvenile court is required to select adoption as the permanent plan. [Citation.]
The burden falls to the parent to show that the termination of parental rights
would be detrimental to the child under one of the exceptions.†(
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.†(In
re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
To
meet the burden of proof for this statutory exception, the parent must show
more than frequent and loving contact, an emotional bond with the child, or
pleasant visits. (In re Derek W.
(1999) 73 Cal.App.4th 823, 827.) The parent must show he or she occupies a “parental
role†in the child’s life, resulting in “a significant, positive, emotional attachment
from child to parent.†(Ibid.;
318, 324.) “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.)
In
this case, parents contend the court erred in finding the beneficial
parent-child relationship exception to adoption did not apply to preclude
terminating their parental rights. They assert mother maintained regular
visitation and contact with the children, had a loving, nurturing, and bonded
relationship with them, and occupied a parental role in their lives such that
termination of parental right will
greatly harm the children. We disagree.
The
evidence establishes that mother had regular visitation with the children and
that she had a generally positive, loving relationship with the children. The
evidence does not establish, however, that she was acting in a parental role in
that relationship or that she had such a “significant, positive, emotional
attachment†with the children that terminating the parent-child relationship
would result in great harm to the children. (In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
Despite
numerous attempts, mother was not able to ameliorate the risks that caused the
children to be removed from her custody. She could not maintain stable
employment or housing and could not establish that she was drug-free. Contrary
to parents’ argument, this evidence is relevant not only to her inability to
reunify with her children but also to the strength and nature of her
relationship with her children. Repeated failure to make progress on her case
plan calls into question whether mother is occupying a parental role in the
children’s lives. Her inability to
follow through on the medical care following her daughter’s surgery further
supports the conclusion that she was not capable of or not interested in parenting
the children. The social worker, CASAs, and the children’s attorney uniformly
agreed that the children’s need for stability, safety, and permanency clearly
outweighed any possible detriment that would be caused by severing the parental
relationship. Whether this court applies an abuse of discretion or substantial
evidence standard of review, the result is the same; there is no error. (See
standard but noting that “[t]he practical differences between [the substantial
evidence standard and the abuse of discretion standard] are not significantâ€
when reviewing a ruling on the applicability of one of the statutory exceptions
to the termination of parental rights set out in section 366.26, subdivision
(c)(1)(B)]; In re C.B. (2010) 190 Cal.App.4th 102,123 [we review “ ‘the [juvenile] court's findings of
fact . . . for substantial evidence, its conclusions of law . . . de novo, and
[we reverse] its application of the law to the facts . . . only if arbitrary
and capricious.’ †].)
Contrary
to mother’s argument, a permanent plan of guardianship would not serve the
children’s best interests because adoption is the only option that would
provide them with the stability and permanence they need. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419 [Legislature has
decreed guardianship is not in best interests of children who cannot be
returned to their parents; only adoption affords the most permanent and secure
alternative]; In re Ronell A. (1996)
44 Cal.App.4th 1352, 1368–1369 [parents' preference to preserve family unit
does not override best interests of minors in stability and security of
adoptive home].)
The
order terminating parental rights is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
At the jurisdiction hearing on the supplemental petition, the petition was
amended to delete the additional allegation the conditions in parents’ home was
unsafe.
