In re A.G.
Filed 3/5/13 In re A.G. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
In re A.G., a Person Coming
Under the Juvenile Court Law.
H038632
(Santa Clara
County
Super. Ct.
No. JD19418)
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDREN'S SERVICES,
Plaintiff and
Respondent,
v.
I.L.,
Defendant and
Appellant.
I. Statement
of the Case
I.L., the
mother of A.G., the child at issue in this case, appeals from an order
terminating her parental rights under Welfare and Institutions Code section
366.26.
apply the beneficial parental relationship exception to avoid terminating her
We find no
error and affirm the termination order.
II. Factual
Background and Procedural History
Protective Custody for A.G.
A.G.
was born in January 2009. She tested
positive for methamphetamine
and amphetamine, displayed symptoms of drug withdrawal, and
stopped breathing. After being
resuscitated, she was placed in the neo-natal intensive care unit, and an
emergency response social worker immediately placed her in
The Petition and Detention Hearing
On January
16, 2009, the
County Department of Family and Children’s Services (the Department) filed
a dependency petition for A.G. alleging that she was at risk due to mother’s
failure and inability to protect and provide regular care for her. (§ 300, subd. (b).) In addition to describing A.G.’s condition at
birth, the petition alleged that mother had failed to seek prenatal care and
not sought treatment for her own gestational diabetes, which put A.G. at risk in
utero. The petition further alleged
that mother abused methamphetamines, which she had taken throughout her
pregnancy; she minimized her substance abuse problem; and she lived in a home
where illegal drugs were used. On
January 20, 2009, the court sustained the detention petition.
On February
3, 2009, the Department requested that A.G. be released to mother, who was now
at House on the Hill (HOTH), a residential drug treatment program. The Department noted that A.G. had been
released from the hospital and was doing well, and mother was cooperating with
the social worker and attending 12-step meetings and had obtained a drug and
alcohol assessment. The Department
believed that mother understood the need for an intensive, in-patient treatment
program to maintain sobriety.
The court
granted the request, and A.G. joined mother at HOTH.
The Jurisdiction and Disposition Hearing
In its
jurisdiction report, the Department summarized mother’s background. Born in 1972, mother never knew her
father. She was raised by relatives
until she was 14 and then returned to live with her mother. At 16, she had her first child, D.G., with an
18-year-old man, who physically abused her.
In 1992, she married a drug addict and had a second child, C.C. They split up, and in 1997, mother was
convicted of being under the influence of methamphetamine, possession of drugs
and paraphernalia, and child endangerment.
At that time, D.G. and C.C. were placed in a shelter and with their
maternal grandmother. After mother’s
release from custody, she received social services and agreed to out-patient
drug treatment, testing, and parenting classes.
However, social workers had difficulty supervising mother’s compliance
and feared she would relapse because she showed little insight into her drug
use.
In 1999,
mother had a third child, N.G., during a brief relationship with a 19-year-old
man who later committed suicide in his jail cell. In 2000, mother was convicted of possessing
and being under the influence of drugs.
When it happened again in 2001, the three children went to live with
their maternal grandmother, and she became their legal guardian. While mother was in jail, she met a man, and
upon release from custody, they got married.
Although he was a good man around others and provided for the family, he
physically and emotionally abused mother, and she feared him. In 2004, D.G.’s father obtained legal custody
of him. C.G. and N.G. remained with
their grandmother. In 2005, mother’s
husband violated parole and was returned to prison. During this time, he and mother
separated. In 2006, mother regained
custody of C.C. and N.G. Her life had
stabilized, and she was clean and sober.
Thereafter, mother did well for a while but then brought “unsafe†people
into the house and started using drugs again.
The
jurisdiction report also stated that a paternity test had excluded mother’s
husband as A.G.’s father, and upon learning this, he no longer wanted anything
to do with A.G. Mother was “devastatedâ€
and opined that A.G. had resulted from a “one night stand†with some
unidentified man.
The report
noted that A.G. was doing well and appeared well cared for with mother at
HOTH. Although the Department was
concerned about mother’s substance abuse, mother had been cooperative with the
social worker, had acknowledged her drug problem, and accepted the fact that to
stay clean and sober she needed a residential in-patient treatment
program. The Department concurred with
mother’s view and recommended that the court declare A.G. a ward and provide
mother and A.G. with family maintenance services.
On February
10, 2009, after a hearing, the court sustained the jurisdiction petition. On March 5, the court conducted a
disposition hearing. At that time, the
court adopted the Department’s recommendations and directed mother to
participate in parenting classes and counseling; submit to random drug testing;
complete a substance abuse assessment; attend a
cooperate with the Family Wellness Court Partners, a specialized dependency
drug court.
The Six- and 12-month Reviews
In its
interim review and six-month status report, the Department stated that mother
had participated and completed her residential treatment program at HOTH,
complied with the other requirements of her maintenance plan, and consistently
tested negative for drugs. She had moved
to the Castillon Transitional Housing Unit.
Mother was in the process of finding employment and housing for her,
A.G., and C.C. She was being tested
weekly, attending 12-step meetings, starting out-patient treatment with a
therapist, and complying with the drug court.
Mother and A.G. had been working together with a support person, and
except for a persistent cough, A.G. was happy and healthy, eating well, and
developmentally on target. After a
hearing in September 2009, the court ordered the continuation of
In its
12-month review, the Department reported that mother continued to engage in her
case plan, had maintained positive improvements, participated in out-patient
treatment and therapy, and was seeking housing because she had reached the
limit at the Castillon. A.G. was over
her cough, happy, developing perfectly, and had bonded with mother. After a hearing in February 2010, the court
ordered the continuation of services.
Interim Review, Relapse
and Increased Drug Testing
On April
22, 2010, the Department filed an interim report and recommended reducing
mother’s drug testing to once per month.
The Department noted that mother had found a home to rent. She was continuing to work with the social
worker and attending employment trainings.
She missed one drug test, claiming a packed schedule and transportation
issues, and the social worker accepted her explanation, noting that although
mother did not call the Department, she did call her attorney about missing the
test. The court adopted the
recommendation and reduced mother’s drug testing.
On April
26, mother failed a drug test and admitted that she had relapsed before her
drug testing was reduced. The social
worker noted that mother had been avoiding her.
For this reason, the Department made an ex parte request on April 29 to
reinstate the previous order for weekly drug testing. On May 3, the court granted the request.
On June 15,
2010, the Department filed a request to increase mother’s drug testing to twice
per week. The Department noted that
mother had relapsed in April and again in June and opined that mother needed
increased structure to remain clean and sober and that A.G. was at risk if
mother continued to relapse. Mother
agreed to increased testing, and the court ordered the increase.
18-Month Review
In its
August 2010, 18-month report, the Department noted that mother, A.G., C.C., and
N.G. were living together, and mother was working part-time cleaning houses
while A.G. was in daycare. Mother was
looking for better employment opportunities.
Mother tested positive two more times, but her tests had been clean
since June. Mother was participating in
therapy and agreed to complete 90 12-step meetings in 90 days. She had consistently followed through with
her commitment, although the Department was concerned about suspicious-looking
signatures on her 12-step sign-in sheets, missed treatment meetings, and
unavailability. A.G., who was 18 months
old, was doing well and enjoyed being at daycare very much. The Department recommended against dismissal
of A.G.’s dependency and sought an additional six months of family
maintenance. The court ordered continued
maintenance services and twice weekly drug testing.
Section 387 Petition
On
September 16, 2010, the Department filed a supplemental petition under section
387 seeking A.G.’s removal from mother’s custody. The Department explained that mother had
relapsed. She admitted regular drug use
and requested A.G.’s removal so that she could enter a residential treatment
program. On September 17, the court
immediately ordered A.G. detained and authorized her placement with her daycare
providers who qualified as non-related extended family members (NREFMs).
In its
report for the hearing, the Department recommended removal of A.G. and a
reunification plan. It noted that mother
had admitted repeated relapses with street drugs since May 2010 but could not
explain why it happened so often or why she could not reacquire the level of
recovery she had attained at HOTH.
Mother sought individual treatment apart from A.G. and therefore asked
that A.G. be placed with her NREFM caregivers.
She also asked that C.C. be considered for placement. The Department placed A.G. with the NREFM
caregivers but declined to place C.C. because C.C. had tested positive for
marijuana (THC). The Department asserted
that mother and C.C. had provided false and misleading information about their
drug use and had withheld information that would cause concern for A.G.’s well
being.
The
Department acknowledged that mother had unwavering and profound love for
A.G. It noted that mother understood the
need to get clean and sober again in order to regain custody of A.G. Nevertheless, the Department asserted that
mother had been able to sustain more than a superficial lifestyle of recovery.
On October
6, 2010, after a hearing, the court sustained the removal petition, placed A.G.
with the NREFM caregivers, and ordered reunification services, including
visitation with mother at the Mariposa Lodge
Six-Month Review
In a
February 2011 status report and addendum, the Department recommended that A.G.
be returned to mother with family maintenance services. Mother had completed her residential program
and was doing well in an outpatient program.
C.C. was clean from marijuana.
Mother also showed renewed interest in the 12-step program and a
commitment to her recovery. Visitation
was going well, and mother had some unsupervised visits and an overnight
visitation each week. A.G. was healthy
and developmentally on track. Because
A.G. was throwing tantrums when she did not get what she wanted and sometimes
tried to hit N.G., supervised visitation at the NREFM caregiver’s home was
conducted by a family rehabilitation specialist. The specialist reported that mother and A.G.
were becoming more patient with each other, mother provided positive
reinforcement and set limits and boundaries, she was learning age-appropriate
activities and alternative parenting skills to increase her bond with A.G., and
she appeared to be attuned to and able to meet A.G.’s needs. The specialist opined that despite the
separation, A.G. had great attachment with mother, and there was a strong
parent-child relationship between them.
On February
17, 2011, the court adopted the recommendation and ordered A.G’s return to
mother with services.
Family Maintenance Review
In its
August 2011 family maintenance review, the Department reported that A.G. was
living with mother and C.C. The
Department recommended that the court dismiss jurisdiction because mother
continued to diligently care for A.G., appeared to be doing well in therapy,
had attended her 12-step meetings, had reworked her relapse prevention plan,
had participated in drug court, and had completed outpatient treatment. Moreover, her drugs tests were clean except
for one diluted test, which mother explained was caused by her effort to lose
weight by drinking lots of water. The
Department observed a positive connection between mother and A.G. and that
mother had made great strides to overcome her addiction.
However, in
an addendum to this review, the Department reported that mother had relapsed
again. She had used methamphetamines in
July 2011, explaining that she “thought [she] could get away with it.†However, mother offered to increase drug
testing and 12-step meetings and had rewritten her relapse prevention plan
again. Despite mother’s excellent
performance on her case plan, the Department feared she did not want to give up
using methamphetamine. The Department
noted that A.G. was born with methamphetamine in her system and two and
one-half years later, she still lived in an environment in which mother’s
relationship with the drug outweighed her relationship with A.G. The Department warned mother that another
relapse would result in A.G.’s removal and proceedings to find her a stable
home. Under the circumstances, the
Department changed its position and now recommended six more months of family
maintenance services.
Second Section 387 Petition
On December
8, 2011, the Department took A.G. into protective
custody and filed another section 387 petition to remove A.G. from mother’s
custody because mother had tested positive for methamphetamine on November 9,
2011, her fifth documented relapse. On
December 13, the court, after a hearing, detained A.G. and placed her with her
NREFM caregivers with supervised visitation.
In an
addendum to the petition, the Department recounted the circumstances of A.G.’s
birth and mother’s numerous relapses over next two years.
substantial family maintenance and support services and residential in-patient
drug treatment, mother continued to have significant and unresolved addiction
issues that resulted in her putting her desire for drugs over her need to
provide care for A.G. Although between
relapses mother presented the profile of a “good mother†and things looked good
on the surface, mother was no closer to true recovery than she was when A.G.
was born. The Department opines that it
was likely that after leaving the dependency support system, mother would
return to her regular pattern of drug use.
The
Department further noted that during her lengthy period of services, mother
twice made 90-day 12-step meeting commitments and twice failed to follow
through. She also missed three of six
meetings at Central Treatment. The
Department reported that once, while shopping with the NREFM caregivers, mother
was observed shoplifting and putting items in A.G.’s stroller. The Department further reported that mother
had failed to tell her housing caseworker the true facts about A.G.’s removal
from her custody. On the other hand,
mother admitted that C.C. had been staying with her and regularly using
marijuana at home. Under the
circumstances, the Department asserted that a return to mother’s care would be
detrimental to A.G.
On December
28, after a hearing, the court sustained the removal petition, and on March 2,
the court terminated services, continued A.G.’s placement, and set the case for
a section 366.26 hearing.
Permanency Planning Proceedings
In its
report for the hearing, the Department recommended adoption as the permanent
plan. The Department noted that given
her young age, A.G. was highly adoptable.
She was developmentally on target and had a sweet, charming, and
vivacious personality. The Department
asserted that having been with her NREFM caregivers for a third of her life,
A.G. had become a “big part of her current family and would like to remain.†A.G. also “expressed positive and warm
feelings†toward her NREFM caregivers and called them mommy and daddy.
their nuclear and extended family, and wanted to adopt her if mother failed to
reunify.
NREFM caregivers had always supported mother’s efforts to reunify, had always
sought the best for A.G., and were steadfast in their belief that she deserved
a permanent and stable home with a “forever†family.
A.G.’s
NREFM mother declared that she loved A.G. and wanted to be her protector and
supporter for life. She opined that A.G.
“feels that this is her home and she is very comfortable here, especially with
the other children to play with.†Having
adopted other children, she explained that her job was to protect A.G., provide
for her material, educational, and emotional needs, and give her a sense of
importance and of being loved.
The
Department reported that after A.G.’s removal and an initially difficult
period, A.G. had adjusted well. Mother
had lengthy and regular visitation, which A.G. looked forward to. Mother also attended A.G.’s dance recital and
sometimes attended church with A.G. and the NREFM caregivers. The Department opined that A.G. was too young
to understand the legal and logistical implications of the dependency
case. However, when asked where she
wanted to live, A.G. said with mother.
A.G. also looked forward to her visitation with mother.
Mother
maintained her desire to regain custody of A.G.
Although she had tested negative for six months, and even sought extra
sessions at her drug program, the Department opined that her behavior was the
façade of a well-intentioned mother who thought she had put her shortcomings
behind her. However, because mother had
presented herself in this way before and yet relapsed when caring for A.G., the
Department considered her a manipulative parent, who after a temporary period
of adherence to court ordered restrictions on alcohol and drugs, repeatedly
relapsed when supervision was relaxed or nearly finished. The last time, mother admitted she did so
because she thought she could get away with it.
The Department opined that although mother could conceivably gain
sobriety and freedom from her addiction, she would need a long-term residential
program and have to do much work on the issues underlying her addiction. In the meantime, A.G. was at substantial risk
of harm in mother’s care, and the prognosis that mother would be able to
provide for and safely care for A.G. was extremely compromised and limited.
At the
hearing on August 3, 2012, mother testified that she had consistently visited
A.G., and they talked every day on the phone.
Mother said that A.G. was very happy to see her and sad when visitation
ended. A.G. told mother that she loved
her and missed her and wanted to know when she could come home. Mother also informed the court that she had
started her second year of college and wanted to get a business degree. She asserted that with the help of her
sponsor, therapist, family, and friends, she had become a totally different
person.
For these
reasons, counsel for mother argued that there was a beneficial relationship
between mother and A.G., and it would be detrimental to terminate it. Accordingly, counsel urged the court to
select legal guardianship rather than adoption because the parental
relationship would be preserved.
The
Department urged the court to terminate mother’s rights and free A.G. for
adoption. It argued that the beneficial
parental exception to termination of parental rights did not apply because
A.G.’s need for stability and permanency outweighed any harm from the loss of
her relationship with mother. Counsel
for A.G. agreed with the Department recommendation.
After
considering the record, the testimony, and the statements by counsel, the court
found that A.G. was adoptable. It
further found that preserving the relationship between mother and A.G. did not
outweigh A.G.’s need for stability and permanency, and any detriment to A.G.
from the termination of that relationship was not a compelling reason not to
free A.G. for adoption.
III. Discussion
Mother
contends that the court erred finding inapplicable the beneficial parent
relationship exception.
A. The Statutory Framework and Standards of
Review
“ ‘Once
reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability.’
[Citation.] ‘A section 366.26
hearing . . . is a hearing specifically designed to select
and implement a permanent plan for the child.’
[Citation.] It is designed to
protect children’s ‘compelling rights . . . to have a
placement that is stable, permanent, and that allows the care-taker to make a
full emotional commitment to the child.’
[Citation.]†(In re Celine R. (2003)
31 Cal.4th 45, 52-53 (Celine R.).)
At the
section 366.26 stage of a dependency proceeding, adoption is the preferred
choice. (Celine R., supra, 31
Cal.4th at p. 49; § 366.26, subds. (b) & (c).) Section 366.26, subdivision (c)(1), provides
in pertinent part: “If the court determines, based on the assessment provided
as ordered under [applicable statutory provisions], and any other relevant
evidence, by a clear and convincing
standard, that it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption.†(Italics added.)
There are
exceptions to the general rule requiring that the court choose adoption where
possible. The exceptions, however,
“ ‘must be considered in view of the legislative preference for adoption
when reunification efforts have failed.’
[Citation.] At this stage of the
dependency proceedings, ‘it becomes inimical to the interests of the minor to
heavily burden efforts to place the child in a permanent alternative home.’ [Citation.]
The statutory exceptions merely permit the court, in exceptional
option other than the norm, which remains adoption.†(Celine R., supra, 31 Cal.4th at p.
53.)
In
particular, section 366.26, subdivision (c)(1)(B) provides that a court need
not terminate parental rights if it “finds a compelling reason for determining
that termination would be detrimental to the child due to one or more of
[certain specified circumstances]†one of which is that “[t]he parents have
maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.â€
(§ 366.26, subd. (c)(1)(B)(i) [the beneficial parental relationship
exception].)
At a
section 366.26 hearing, the parent bears the burden to show that termination
would be detrimental to the child under this two-pronged exception. (In re Tabatha G. (1996) 45
Cal.App.4th 1159, 1164, In re Autumn H. (1994) 27 Cal.App.4th 567, 574 (Autumn
H.); see Evid.Code, §§ 110, 115, 190, 550.)
On appeal
after a court has rejected a parent’s effort to establish the exception, two
different standards of review come into play.
Since the
parent must first show the existence of a beneficial parental relationship, which is a factual issue, we uphold a court’s express or
implied finding that there is no beneficial relationship if supported by
substantial evidence. (In re Bailey
J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) More specifically, a challenge to a court’s
failure to find a beneficial relationship amounts to a contention that the
“undisputed facts lead to only one conclusion.â€
(In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts established
the existence of a beneficial parental relationship, a substantial evidence
challenge to this component of the juvenile court’s determination cannot
succeed. (Bailey J., supra, 189
Cal.App.4th at p. 1314.)
The
second requirement for the exception is that the beneficial parental
relationship constitute a “compelling reason for determining that
termination would be detrimental.†(§
366.26, subd. (c)(1)(B), italics added.)
Although grounded in the facts, the court’s determination on this issue
is a “ ‘quintessentially’ discretionary decision, which calls for the juvenile
court to determine the importance of the relationship in terms of the
detrimental impact that its severance can be expected to have on the child and
to weigh that against the benefit to the child of adoption. [Citation.]
Because this component of the juvenile court’s decision is
discretionary, the abuse of discretion standard of review applies.†(Bailey J., supra, 189 Cal.App.4th at
p. 1315.)
1. Existence of a
Beneficial Parental Relationship
The
court did not make an explicit factual finding concerning whether there was a
beneficial parental relationship between mother and A.G. However, the court’s ruling implies a finding
that there was no beneficial parental relationship. As noted, we uphold that finding if supported
by substantial evidence, which effectively means we uphold it unless the
undisputed evidence leads only to the conclusion that there was a beneficial
parental relationship. (Bailey J.,
supra, 189 Cal.App.4th at p. 1314.)
The undisputed
evidence establishes that when A.G. was not in mother’s custody, mother
maintained regular visitation. However, “[i]nteraction between natural
parent and child will always confer some incidental benefit to the child. The significant attachment from child to
parent results from the adult’s attention to the child’s needs for physical
care, nourishment, comfort, affection and stimulation. [Citation.]
The relationship arises from day-to-day interaction, companionship and
shared experiences. [Citation.] The [beneficial parental relationship] exception
applies only where the court finds regular visits and contact have continued or
developed a significant, positive, emotional attachment from child to
parent.†(Autumn H., supra, 27
Cal.App.4th at p. 575.) Evidence of
“frequent and loving contact†is not sufficient to establish the existence of a
beneficial parental relationship. (In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)
“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.â€
(In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.)
The
record reveals that although A.G. was taken into protective custody at birth,
she was returned to mother within a month and remained in her custody from
February 2009 until September 2010. The
Department’s reports reveal that under mother’s care, A.G. grew into a happy
and healthy 18-month old child, who was developmentally on target and bonded
with mother. Mother, in effect,
relinquished custody of A.G. to the NREFM caregivers from September 2010 to
February 2011 because mother had relapsed and needed to be in a residential
treatment program. During that period,
however, mother maintained regular visitation, which went very well and
progressed to regular unsupervised visits and even overnight visitation. In its reports covering that period, the
Department opined that mother had learned age appropriate activities for
A.G. and alternative parenting skills, and she had
ardently and diligently cared for A.G., who was happy and healthy and
developmentally on track. The
rehabilitation specialist opined that there was strong parent-child
relationship between mother and A.G. For these reasons, A.G. was returned to mother
in February 2011, where she remained until December 2011. Under mother’s care during that period, A.G.
continued to grow and develop. In
December 2011 A.G. was removed due to mother’s relapse and returned to the
NREFM caregivers. After A.G.’s removal,
mother maintained lengthy supervised visitation twice per week and called A.G.
and regularly on the phone. The
Department noted that A.G. looked forward to visitation and told a social
worker she wanted to live with mother.
At the section 366.26 hearing, mother reported that A.G. called her
mommy, missed her, and wanted to be with her.
This
undisputed evidence establishes that mother had custody of A.G. for well over
two years, during which she provided A.G. with physical care, nourishment,
comfort, affection and stimulation, shared experiences, and companionship. Moreover, it establishes that they had loving
and meaningful interactions during the periods of visitation. Finally, it shows that A.G. bonded with
mother, they developed a substantial parental relationship, and A.G. had a
significant, positive, emotional attachment to mother. In short, the undisputed evidence reasonably
leads to only one conclusion: there was
a beneficial parental relationship between mother and A.G.
The
Department notes that much of the time that mother had custody of A.G., mother
was under the “watchful†eyes of the staff at her residential treatment
centers. When mother obtained separate
housing, her drug testing decreased, and without that structure, mother
relapsed. As a result, drug testing was
increased. Despite mother’s promises to
do everything necessary to maintain her sobriety, she started missing 12-step
meetings, outpatient sessions, and drug tests.
The
Department argues that “[t]wo residential drug programs, two outpatient
programs, therapy, drug court, testing, housing, and childcare†were not enough
to help mother overcome her addiction.
According to the Department, the “rosy picture†of A.G. while in her
care that mother painted was just a façade because “[mother’s] need for drugs
repeatedly jeopardized A.G.’s health and well-being.†Moreover, the Department points out that at
one point, C.C. was living with mother and A.G. and was smoking marijuana; and
on one occasion, mother used A.G.’s stroller to hide stolen goods.
The
Department’s reports and the undisputed evidence of mother’s participation in
drug treatment programs and drug testing reveal that for the vast majority of
A.G.’s life, mother was committed to sobriety and made a concerted effort to
maintain it. However, the undisputed
evidence also reveals that despite the momentum of periods of sobriety and
substantial support services, mother used methamphetamines on several
occasions. These instances of relapse
demonstrate the depth of mother’s addiction and how her will power and
commitment to sobriety waned outside a structured drug treatment program and
testing regime. Moreover, these relapses
together with apparently allowing C.C. to smoke marijuana in the house and
using a stroller to steal also reflect instances of poor judgment that
implicate mother’s ability to properly care for A.G.
However,
the evidence cited by the Department does not erase the undisputed fact that
during her lengthy time under mother’s care, A.G. grew into a healthy, happy,
thriving, developmentally on target little girl, who had bonded with mother and
now loved, missed, and wanted to live with her.
In other words, the evidence cited by the Department does not constitute
substantial evidence to support the court’s implied finding that A.G. did not
develop a significant and meaningful emotional bond and parental attachment to
mother. (Autumn H., supra, 27
Cal.App.4th at p. 575.)
2. Discretionary
Balancing of Interests
In addition
to establishing a beneficial parental relationship, mother also had to convince
the court that the relationship constituted a “compelling†reason not to
terminate her parental rights. (§
366.26, subd. (c)(1)(B); Celine R., supra, 31 Cal.4th at p. 49.) This prong has been interpreted to mean those
situations where “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.†(Autumn H.,
supra, 27 Cal.App.4th at p. 575; accord, In re Casey D. (1999) 70
Cal.App.4th 38, 51.)
As
noted, the juvenile court concluded that the potential detriment to A.G. from
the loss of her relationship with mother did not constitute a compelling reason
not to terminate mother’s parental rights, and we review this conclusion for
abuse of discretion. (Bailey J.,
supra, 189 Cal.App.4th at p. 1315.)
“ ‘The
discretion of a trial judge is not a whimsical, uncontrolled power, but a legal
discretion, which is subject to the limitations of legal principles governing
the subject of its action, and to reversal on appeal where no reasonable basis
for the action is shown.’ (9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420; see Westside Community for Independent Living, Inc. v. Obledo (1983) 33
Cal.3d 348, 355.) ‘The scope of
discretion always resides in the particular law being applied, i.e., in the
“legal principles governing the subject of [the] action . . . .†Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call
such action an “abuse†of discretion.
[Citation.] . . . [¶]
The legal principles that govern the subject of discretionary action
vary greatly with context.
[Citation.] They are derived from
the common law or statutes under which discretion is conferred.’ (City
of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1297-1298.) To determine if a court abused its
discretion, we must thus consider ‘the legal principles and policies that
should have guided the court’s actions.’
(People v. Carmony (2004) 33
Cal.4th 367, 377.)†(
Southern California (2012) 55 Cal.4th 747, 773).) Accordingly, we determine whether we have
sufficient confidence in what the trial court did to defer our consideration to
its decision.
The
record reflects that before ruling, the court reviewed the legal principles
that governed its determination at permanency planning hearing under section
366.26. The court’s analysis further
reveals that it understood the balancing of interests involved in deciding
whether to apply the beneficial parental relationship exception notwithstanding
undisputed evidence that A.G. was adoptable.
Given
the record, we cannot conclude—and defendant fails to convince us—that the
court abused its discretion in finding that the strength and quality of
A.G.’s relationship to mother in a tenuous placement was outweighed by the
sense of stability, permanency, and belonging that the NREFM family would
confer; and that the harm to A.G. from severing her relationship with mother
was not so great as to represent a compelling reason to disregard the statutory
preference for adoption.
First,
there was no testimony from a mental health provider, social worker, or bonding
expert that the termination of parental rights so that A.G. could be adopted
would cause serious and perhaps lasting emotional or psychological scars or
detriment to A.G.
Although the rehabilitation specialist opined that A.G. had
a significant and meaningful emotional attachment to mother, his comments
predated A.G.’s last removal, mother’s last relapse, and C.C.’s reported drug
use in the house. The record also shows
that at the time of the hearing, A.G. was only three and a half years old. Twice during her short life, mother disrupted
A.G.’s attachment and the continuity of their relationship by succumbing to her
addiction. Mother’s last relapse,
despite an unequivocal warning that it would result in A.G.’s removal,
emphasized that mother had significant and unresolved issues with addiction and
demonstrated that mother was no closer to dealing successfully with her
addition and the underlying issues than she was when A.G. was born. This is especially so because according to
mother, she used methamphetamine the last time because she thought she could
get away with it. Accordingly, the court
reasonably could have concluded that for the foreseeable future, mother’s history
of chronic substance abuse, unresolved addiction issues, and the lure of
methamphetamines posed a significant, ongoing, and destabilizing risk to
whatever benefits A.G. derived from her attachment to mother. Indeed, notwithstanding the positive showing
that mother made at the hearing and her expressions of commitment, mother’s
current sobriety was of relatively short duration. Given mother’s track record of failure after
much longer periods of sobriety, the court reasonable could have found a substantial
likelihood that mother’s pattern of apparent success and then relapse would
inevitably repeat itself.
On
the other hand, the record reveals that during the year A.G. spent with her
NREFM caregivers, she developed significant and meaningful emotional
attachments to them and called them mommy and daddy. They had known A.G. since she was about 18
months old and had provided a safe, stable, and consistent home as well as a
sense of familial membership in which A.G. also thrived and continued to develop
into a happy and healthy young girl. Moreover,
the caregivers demonstrated their commitment to A.G. by wanting to adopt her
and give her a permanent and dependable family and home.
Mother
notes that the family rehabilitation specialist supervised visitation because
at that time in A.G.’s life, she was throwing tantrums and displaying
A.G. address and overcome those behavioral issues. Mother argues that her success demonstrates
that her interactions with A.G. concerning A.G.’s special needs were
particularly positive. Mother also notes
that A.G. expressed her desire to live with mother and showed sadness because
she missed her. For these reasons,
mother argues that the harm from a permanent separation provided a compelling
reason not to terminate parental rights and to select a guardianship instead of
adoption. We are not persuaded.
Although
the Department arranged for a rehabilitation specialist to supervise visitation
in the NREFM home when A.G. was around 18 months old because of tantrums and
aggressive behavior, such behavior by a toddler is not strange or out of the
ordinary. More importantly, although
mother showed good skills during the supervised visits in dealing with A.G.’s
problematic behavior, there is no evidence that mother was so particularly
attuned to A.G. and her approach so perfectly tailored and uniquely suited to
A.G.’s behavioral issues that the loss of mother’s parenting skills could be
considered a significant detriment to A.G.’s well being. Indeed, subsequent reports by the Department
did not reveal that A.G.’s behavioral issues persisted after A.G. was returned
to mother for the second time or reappeared when she was later removed and went
to the NREFM home. Accordingly, mother’s
apparent success in dealing with A.G.’s tantrums and aggressive behavior does
not necessarily constitute a compelling reason not to terminate her parental
rights.
Mother’s
reliance on In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.)
and In re S.B. (2008) 164 Cal.App.4th 289 (S.B.) is misplaced.
In
Brandon C., two minors were declared dependent children because
they had been victims of domestic violence, and their mother had a history of
substance abuse. They were placed with
their paternal grandmother.
Reunification services were terminated when the parents failed to
complete court-ordered treatment. At the
permanency planning hearing, the juvenile court ordered legal guardianship for
the minors with their paternal grandmother without terminating parental rights,
finding that it would be in the children’s best interests to preserve the
ongoing relationship with their mother who had maintained regular
visitation. (Brandon
C., supra, 71 Cal.App.4th at
pp. 1532-1533.)
The
Department of Child and Family Services
appealed claiming there was insufficient evidence that termination of parental
rights would be detrimental. (Brandon
C., supra, 71 Cal.App.4th at p. 1533.)
In rejecting this claim, the court noted that over the four years of the
dependency from 1994 to 1998, mother had consistently maintained regular
visitation, during which she interacted with and played with the children,
helped feed and care for them, and kept them safe. At one point during this period, one of the
children cried for long periods and resisted going to bed after mother’s
visits. Both children had a good
relationship with and seemed to love mother, whom they called mommy, and they
looked forward to her visits. In
addition, mother had completed her drug rehabilitation program, she had
maintained a stable residence, and she had been employed as a receptionist in a
law office. The children’s grandmother
opined that it was not in the children’s best interests to terminate mother’s
rights because of their relationship to her.
However, she preferred to adopt her grandchildren rather than be their
guardian. Either way, she felt that mother
would always be in their lives, and they would always refer to her as mommy. Mother testified that she and the children
were closely bonded. The court found
that this evidence was sufficient to support the juvenile court’s finding that
termination of mother’s rights would be detrimental to the children. (Id. at pp. 1535-1537.)
Brandon
C. is distinguishable. There the
issue was whether substantial evidence supported the court’s finding that
termination would be detrimental. The
issue here is whether the court abused its discretion in concluding that
termination would not be so harmful to A.G. that preserving mother’s rights
outweighed the benefit to A.G. of a stable and permanent family and home. Each dependency case has its own set of
unique facts, and Brandon C. does not establish that termination here
would cause great harm to A.G and thus constitute a compelling reason not to
terminate mother’s rights. Nor does Brandon
C. convince us that the court abused its discretion in concluding
otherwise.
Mother
asserts that this case is more similar to S.B., supra, 164 Cal.App.4th 289.
However, S.B. is also factually distinguishable. There, the father established the existence
of a significant, positive, emotional attachment between him and his daughter
based on undisputed evidence that he had been her primary caretaker for three
years before she was removed from his custody due to his drug use. At that time, he immediately acknowledged
that his drug use was untenable, started services, maintained his sobriety,
sought medical and psychoanalytic services, and complied with every aspect of
his case plan. Moreover, after a year
apart the child continued to display a strong attachment to her father. (Id. at p. 298.) In addition, there was a bonding study by a
psychologist who described the bond between father and the child as fairly
strong and opined that there was potential for harm if the child lost her
parental bond with the father. Based on
this record, the court concluded that “the only reasonable inference is that
[the child] would be greatly harmed by the loss of her significant, positive
relationship with [her father].†(Id.
at pp. 300-301.)
Here,
mother has not shown the same devotion to A.G. and her case plan as that shown
by the father in S.B. Rather,
despite substantial services, mother failed drug treatment and had numerous
relapses that twice required A.G.’s removal, interrupted the continuity of her
relationship to A.G., demonstrated that her drug addiction was far more deeply
rooted and difficult than she acknowledged, and showed that mother was unable
to maintain sobriety without the close support and scrutiny of an intensive
drug treatment program. Moreover, there
was no bonding study by a psychologist or testimony that A.G. could potentially
be harmed if A.G. was freed for adoption.
3. Conclusion
“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; accord In re K.P.
(2012) 203 Cal.App.4th 614, 621.) This
is not such an extraordinary case.
Although the record reveals that mother had a beneficial parental
relationship to A.G. and A.G. had a meaningful attachment, the record does not
lead to only one conclusion that the loss of that relationship and attachment
represents a compelling reason to overcome the legislative preference for
adoption. Nor does mother convince us
that the court abused its discretion in not reaching that conclusion.
IV. Disposition
The order
terminating mother’s parental rights is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
the Welfare and Institutions Code.
using drugs from March 18 to March 30, 2010, she missed a drug test in April
and shortly thereafter tested positive.
She tested positive again on May 27, 2010, and the frequency of testing
was increased. Between August and
September, she had four abnormal tests and missed one test, and in September
she tested positive. She again failed
tests twice in July 2011.
