In re A.E.
Filed 10/11/12 In re A.E. CA4/2
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opinion has not been certified for publication or ordered published for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.
THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
In re A.E. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
J.E.,
Defendant and
Appellant.
E056193
(Super.Ct.No.
INJ017307)
OPINION
APPEAL from the Superior Court of
County. Lawrence P. Best, Temporary
Judge. (Pursuant to Cal. Const., art. VI, §
21.) Affirmed.
Rich Pfeiffer, under appointment by the Court of Appeal,
for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother appeals from an order
terminating parental rights to her five-year-old son, A.E.M. (born in 2006) and
two-year-old daughter, A.E.L. (born
in 2010). Mother contends the juvenile
court erred in rejecting the beneficial relationship exception to adoption
under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).
brief that the juvenile court abused its discretion in denying her section 388
petition. Mother has withdrawn this
contention pursuant to a motion to strike,
which this court granted. We reject
mother’s remaining contention the beneficial relationship exception to adoption
applies, and affirm the judgment.
II
FACTS AND PROCEDURAL
BACKGROUND
For purposes of this appeal,
the Department of Public Social Services
(DPSS) has stipulated to the following facts summarized in mother’s appellate
opening brief.
In January 2007, the DPSS
received a general neglect referral.
A.E.M.’s father (father-M) was reportedly living with A.E.M. at Martha’s
Village and was in possession of methamphetamine. Mother’s whereabouts were unknown. In February 2007, the DPSS located mother,
who was residing with A.E.M., father-M, and two other men at her
brother-in-law’s home. Father-M’s
brother was a known drug user and the two other men also abused drugs. Mother admitted she had smoked
marijuana. Mother and father-M also
admitted using methamphetamine. On February 28, 2007, A.E.M. was detained in protective custody.
2007 Juvenile Dependency
Petition and Detention Hearing
On March 2, 2007, the DPSS filed a juvenile dependency petition (2007
petition) on behalf of A.E.M., who was four months old. The DPSS alleged that mother and father-M
abused drugs and were unable to parent their son, A.E.M. Mother had a history with the DPSS. Two of her other children were removed from
her custody in August 2005, because of mother’s abuse of methamphetamine. The DPSS received a referral in July 2006,
alleging physical abuse. Mother was
pregnant and admitted a history of drug use, including using drugs while
pregnant. Mother’s parental rights to
two of her other children were terminated in January 2007. The juvenile court ordered A.E.M. detained in
protective custody.
2007 Jurisdiction Hearing
On March 19, 2007, during A.E.M.’s half-sibling’s 12-month review
hearing, the juvenile court ordered the two half-siblings returned to mother’s
sole physical custody. Mother and
father-M both admitted the petition allegations were true. According to an addendum report filed in
April 2007, mother was attending a substance abuse treatment program and was
visiting A.E.M. weekly.
At the
jurisdiction/disposition hearing on April 24, 2007, the juvenile court found
the 2007 petition allegations true, sustained the petition under section 300, subdivisions
(b) (failure to protect) and (j) (abuse of a sibling), and ordered
reunification services for mother and father-M.
The court ordered A.E.M. to remain in foster care and authorized
supervised visitation for both parents.
Six-Month Status Review
Hearing
In
May 2007, the DPSS filed an updated case plan for mother, requiring her to test
for drugs, participate in a substance abuse treatment program, participate in
counseling, complete a parenting course, and attend a domestic violence course.
The
September 2007 status review report stated that mother and father-M had moved
to their own apartment. A.E.M. remained
in foster home placement. Mother had
completed an inpatient drug treatment program and a parenting course, and had
enrolled in an aftercare program.
At
the six-month review hearing on September 25, 2007, the juvenile court adopted
the DPSS’s recommendations and continued reunification services.
12-Month Status Review
Hearing
On
December 17, 2007, the juvenile court granted the DPSS’s section 388 petition,
requesting A.E.M. be placed with mother, with family maintenance services,
because mother had completed her case plan.
The
DPSS reported in the March 2008 status review report that mother and father-M
had separated in part because father-M had a relapse and was abusing drugs
again. Mother and father-M were employed
at Ralph’s Grocery Store. Mother had
completed her inpatient substance abuse program and domestic violence
program. She also had been compliant
with drug testing and had no positive test results. Mother completed an aftercare program in July
2007.
At
the 12-month review hearing on March 19, 2008, the juvenile court ordered that
A.E.M. remain in mother’s custody and terminated juvenile dependency
proceedings as to A.E.M. Mother was
awarded sole physical custody. The court
found father-M had not completed his case plan and had admitted to relapsing
again. The court authorized supervised
visits.
In
July 2008, two of mother’s other children were ordered adopted.
2010 Juvenile Dependency
Petition
On
July 14, 2010, the DPSS filed a new juvenile
dependency petition (2010 petition) on behalf of mother’s five-month-old
daughter, A.E.L. (born in January 2010) and A.E.M., who was two and a half
years old. A.E.M. and A.E.L. (the
children) were detained in protective custody on July 12, 2010. The 2010 petition alleged that mother was
unable to supervise and protect her children because she was abusing drugs and
was arrested on July 12, 2010, on an old warrant for drug possession. She had also been arrested on June 2, 2010,
for drug possession and in 2005, for harboring a felon. Father-M and A.E.L.’s father (father-L) had
also failed to protect and provide for their children. Father-L’s whereabouts were unknown.
2010 Detention Report
The
detention report filed in July 2010, stated that the DPSS had received a
referral of general neglect on July 12, 2010.
Mother was living in an abandoned home and had an outstanding felony
warrant for possession of methamphetamine. The owner of the home had requested law
enforcement assistance in removing mother from the home. Mother said she had been living there with
her children for three months. She
admitted to using methamphetamine two days before her arrest on July 12, 2010.
Father-M was living at
Victory Outreach Men’s Home in Banning.
He had been in and out of jail during the past two years for being under
the influence and for outstanding warrants.
Mother reported she had had no contact with father-L and his whereabouts
were unknown. The DPSS was unable to
locate him.
At the detention hearing,
the juvenile court ordered A.E.M. and A.E.L. detained in protective custody and
authorized supervised visitation twice a week, conditional upon drug testing,
with negative test results.
2010
Jurisdiction/Disposition Hearing
The
August 2010 jurisdiction/disposition hearing report stated that mother had been
released on probation on July 14, 2010.
Father-L’s whereabouts were still unknown. Father-M was participating in an inpatient
substance abuse program. Mother stated
during an interview on July 26, 2010, that she relapsed because she was
associated with the wrong people and was under a lot of stress. She admitted to using methamphetamine on July
10, 2010.
At
the August 2010 jurisdiction/disposition hearing, the juvenile court found the
2010 petition true and granted reunification services to mother and father-M,
but not to father-L. The court ordered
the children placed in foster care and authorized supervised visitation, as
previously ordered.
2010 Six-Month Status Review
Hearing
The
DPSS reported in its six-month status review report filed in January 2011, that
mother was living in her boyfriend’s home.
Mother had completed an inpatient drug treatment program and was
participating in the MOM’s program, which provided parent education and
substance abuse treatment and testing.
Mother and father-M visited the children once a week.
In
its February 2011 addendum report, the DPSS recommended termination of mother’s
reunification services because she had failed to benefit from previous
services. Mother failed to take a drug
test on January 6, 2011, as required, and lied that she had tested.
At
the six-month status review hearing on February 7, 2011, the DPSS social worker
told the court that mother was going to be terminated from the MOM’s Program
because she had not made any contact with the program during the past 10 days. The matter was continued and scheduled for
another review hearing.
The
DPSS reported in its March 2011 addendum report that mother failed to test for
drugs twice in February. The April 2011
addendum report stated that mother admitted to a relapse on February 23, 2011,
and was terminated from the MOM’s Program on March 28, 2011.
At
the six-month status review hearing on April 13, 2011, the juvenile court
ordered services continued for mother and father-M, with the understanding this
would be mother’s last chance.
2011 12-Month Status Review
Hearing
The
DPSS reported in its August 2011 status review hearing report and addendum that
mother moved to Martha’s Village in June 2011.
The children were living in a foster home. Mother was visiting the children consistently
and the visits went well. The children
appeared to be bonded with mother and father-M.
Both parents were in compliance with their case plans. Father-M requested to be recognized as the
presumed father of A.E.L. The DPSS
recommended returning the children to mother and father-M on a family
maintenance plan.
On August 9, 2011, the
juvenile court adopted a mediated agreement by mother and father-M regarding
custody and visitation. It was agreed
the children would be placed in the care of mother and father-M, and the family
would receive family maintenance services.
The children were to live with mother, with father-M having visitation.
2011 Juvenile Dependency
Petition and Section 387 Supplemental Petition
On September 21, 2011, the
DPSS filed a section 387 supplemental petition (supplemental petition),
alleging that, after the children were returned to mother, mother and father-M
relapsed. Mother admitted to the social
worker she had relapsed and tested positive for methamphetamine and
amphetamine. The children were detained
in protective custody on September 19, 2011.
On September 21, 2011, the DPSS also filed a new juvenile dependency
petition on behalf of mother’s new child, K.B.A. (2011 petition). It is unclear from the record as to when she
was born. K.B.A. is not a party to this
appeal.
At
the detention hearing on the supplemental petition on September 22, 2011, the
juvenile court ordered the children removed from mother and father-M and placed
in foster care. The court additionally
ordered reunification services and visitation.
The court also conducted a detention hearing on the 2011 petition and
ordered K.B.A. removed from the care of mother and K.B.A.’s father
(father-A). The court ordered
reunification services and weekly visitation of K.B.A. for mother and father-A.
2011
Jurisdiction/Disposition Hearing
The
DPSS reported in the October 2011 jurisdiction/disposition hearing report that
father-M admitted relapsing again.
Father-M was discharged from Family Preservation Court because of
noncompliance. Mother was terminated
from counseling because of nonattendance.
On October 5, 2011, the children were placed with the same foster family
they had lived with before being returned to mother in August 2011. Mother visited the children once a week, beginning
on September 29, 2011.
On
November 23, 2011, at the contested jurisdiction hearing on the 2011 petition
and supplemental petition, the juvenile court sustained the 2011 petition as to
K.B.A. As to the supplemental petition,
the court ordered that the children remain in their current foster home and
authorized supervised visitation once a month.
The juvenile court denied reunification services and set a section
366.26 hearing.
Section 366.26 Hearing on
the Supplemental Petition
During
a review hearing on January 25, 2012, the juvenile court authorized increasing
mother’s visitation of the children to two visits per month. Mother had been participating in the Family
Preservation program for almost a year.
The
DPSS reported in the section 366.26 hearing report filed in February 2012, that
the children were placed together and were bonded to their foster parents. The children were originally placed in the
home for 13 months before being returned to mother temporarily in August
2011. On October 5, 2011, the children
were placed back in the same foster home and have resided there continuously
ever since. A.E.M. stated that he
enjoyed his foster family and did not want to leave his foster home. A.E.L. referred to her foster parents as mom
and dad. The children appeared happy and
well adjusted in their foster home.
Mother’s monthly visits with
the children went well, although during the December 2011 visit, she spent most
of the visit with K.B.A., while A.E.M. sat by himself. Mother’s visit in February 2012 was
terminated early because she inappropriately questioned A.E.M. about telling
the social worker and his foster parent that he saw mother while visiting his
maternal grandmother. The children’s
foster mother said she was willing to allow mother to visit the children after
adoption finalized, conditioned upon mother maintaining sobriety.
On March 20, 2012, at the
section 366.26 hearing on the supplemental petition, mother’s attorney
requested a continuance to file a section 388 petition. The trial court denied the continuance. Mother alternatively requested the court to
order legal guardianship of A.E.M. and A.E.L., instead of adoption, since
K.B.A.’s case was in family reunification, with a hearing the following
month. At the time of the section 366.26
hearing, mother was living with father-A and K.B.A.’s paternal
grandmother. Mother was participating in
phase three of the Family Preservation program.
She also was participating in K.B.A.’s case plan. The juvenile court terminated mother’s parental
rights to A.E.M. and A.E.L., finding that the children’s placement was
appropriate, the children’s sibling relationship had been maintained, and
adoption was appropriate.
Mother’s Section 388
Petition
On April 9, 2012, mother (in
pro. per.) filed a section 388 petition, requesting the juvenile court vacate
the order terminating parental rights to the children and reinstate
reunification services. Mother argued
the order should be set aside because there was paperwork that was not filed
before the section 366.26 hearing. Most
likely, mother was referring to her section 388 petition. Mother asserted it was in the children’s best
interests to grant her section 388 petition because she loved her children and
she had been drug free since her children were detained on September 19,
2011. The juvenile court set the section
388 for hearing and then later summarily took the matter off calendar.
III
THE BENEFICIAL RELATIONSHIP
EXCEPTION
Mother
contends the juvenile court erred in rejecting the beneficial relationship
exception to adoption (§ 366.26, subdivision (c)(1)(B)(i)). This exception is often raised but rarely
applies. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5,
disapproved on other grounds in In re
Zeth S. (2003) 31 Cal.4th 396, 413.)
While it can have merit in an appropriate case (e.g.,
296-301), this is not such a case.
A. Applicable Law
Generally, at a section
366.26 hearing, if the juvenile court finds that the child is adoptable, it
must terminate parental rights. (§
366.26, subds. (b)(1) & (c)(1).)
This rule, however, is subject to a number of statutory exceptions (§
366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial
relationship exception, which applies when “termination 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.†(§ 366.26, subd. (c)(1)(B)(i).)
“When applying the
beneficial parent-child relationship exception, the court balances the strength
and quality of the parent-child relationship in a tenuous placement against the
security and sense of belonging that a stable family would confer on the child. If severing the existing parental
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.’ [Citation.]â€
(In re B.D. (2008) 159
Cal.App.4th 1218, 1234-1235.) “The
factors to be considered when looking for whether a relationship is important
and beneficial are: (1) the age of the
child, (2) the portion of the child’s life spent in the parent’s custody, (3)
the positive or negative effect of interaction between the parent and the
child,[] and (4) the child’s particular needs. [Citation.]
While the exact nature of the kind of parent/child relationship which
must exist to trigger the application of the statutory exception to terminating
parental rights is not defined in the statute, the relationship must be such
that the child would suffer detriment from its termination. [Citation.]â€
(In re Angel B. (2002) 97
Cal.App.4th 454, 467.)
“‘[F]or the exception to
apply, the emotional attachment between the child and parent must be that of
parent and child rather than one of being a friendly visitor or friendly
nonparent relative, such as an aunt.’
[Citation.]†(
922, 938.) “‘A biological parent who has
failed to reunify with an adoptable child may not derail adoption merely by
showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent. [Citation.] A child who has been adjudged a dependent of
the juvenile court should not be deprived of an adoptive parent when the
natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need
for a parent.’ [Citation.]†(Id.
at p. 937.)
“We must affirm a trial
court’s rejection of these exceptions if the ruling is supported by substantial
evidence. [Citation.]†(In re
Zachary G. (1999) 77 Cal.App.4th 799, 809.)
“We . . . review[] the evidence most favorably to the prevailing party
and indulg[e] in all legitimate and reasonable inferences to uphold the court’s
ruling. [Citation.]†(In re
B.D., supra, 159 Cal. App.4th at p. 1235.)
Because parents had the burden of proof, we must affirm unless there was
“indisputable evidence [in parents’ favor] no reasonable trier of fact could
have rejected . . . .†(
187, 200.)
B. Discussion
Mother argues the juvenile
court should have applied the beneficial relationship exception because she shared
a significant relationship with the children and the children would benefit
from continuing her relationship with them.
Mother notes she had regular and appropriate visits with the children. But even though mother regularly visited the
children and her visits in most instances were appropriate, she has not
established that her relationship with the children was sufficiently strong and
the children had such a substantial positive emotional attachment to her, that
they would be greatly harmed by terminating their relationship with her.
The children were removed
from mother because of her substance abuse, which interfered with her ability
to care for and protect her children.
Mother has a lengthy history with the DPSS, in which her parental rights
were terminated to four of her children, before termination of parental rights
in the instant case. In this case,
A.E.M. was removed from mother in February 2007, when he was five months old,
and returned to her about 10 months later, after mother completed
mother gave birth to A.E.L., mother relapsed on drugs and the children were
removed from mother in July 2010. A.E.M.
was two and a half years old and A.E.L. was five months old. A year later, after mother again completed
drug treatment, the children were returned to mother in August 2011. A month later, mother relapsed and once again
the children were removed from mother.
A.E.M. was almost five years old and A.E.L. was one and a half years
old.
Mother’s history with the
DPSS shows she had repeatedly struggled with drug addiction, rehabilitation,
and relapsing. At the time of the
section 366.26 hearing in March 2012, she claimed she had been sober since the
children were removed from her in September 2011. This was only six months, not long enough to
establish that she had permanently rehabilitated and would not relapse once
again, as she had done so many times before.
No doubt, the reoccurring process of mother relapsing on drugs, removing
the children from mother, placing them in foster care, returning them to
mother, and again removing them from mother has taken a toll on mother’s
relationship with her young children.
Furthermore, there does not
appear to be any evidence that mother’s relationship with the children was
emotionally significant or close at the time of termination of her parental
rights. As of November 2011, mother was
visiting the children only once a month, and visitation was supervised. During the December visit, mother reportedly
spent most of the visit with K.B.A., while A.E.M. sat by himself playing an
electronic game. At the end of January
2012, visitation was ordered increased to twice a month, at mother’s request,
but her February 2012 visit was terminated early because of mother
inappropriately questioning A.E.M about telling the social worker and his
foster parent that he had had contact with mother while visiting his maternal
grandmother.
A.E.M. and A.E.L. were
placed together and bonded to their foster parents. The children were living with the same foster
family they had lived with for 13 months before being returned to their parents
temporarily in August 2011. In October
5, 2011, the children were placed back in the same foster home at A.E.M.’s
request, and had resided there ever since.
A.E.M. told the social worker he did not want to leave his foster
home. He said he enjoyed his foster
family and wanted to remain with the family until he was grown up. A.E.L. referred to her foster parents as mom
and dad. The children appeared happy and
well adjusted in their foster home.
The evidence demonstrates
that the juvenile court did not err in rejecting the beneficial interest
exception. No exceptional circumstances
exist that justify applying the exception.
The children were young, they had spent a great deal of their lives in
foster care, and their interaction with mother by the time mother’s parental
rights were terminated was limited to brief, supervised monthly or bi-monthly
visits. There was no indication the
children were extremely close to mother, or that the children would be greatly
harmed by terminating their relationship with her. Even though adoption might result in
terminating the children’s relationship with K.B.A., there was no evidence they
had a close relationship with her. The
children had not lived with K.B.A. for very long and she was an infant during
that time. Furthermore, mother is not
arguing the sibling exception to adoption (§ 366.26, subd. (c)(1)(B)(v))
applies.
Even assuming mother had
maintained a close relationship with the children, mother has not established
that the benefits from continuation of her relationship with the children
outweigh the benefit to the children of being placed in a safe, stable,
permanent adoptive home. (
p. 467.) We therefore affirm the
juvenile court’s order rejecting the beneficial relationship exception. (In re
Zachary G., supra, 77 Cal.App.4th at p. 809.)
IV
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
RICHLI
J.
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Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
