In re A.L.
Filed 2/22/13 In re A.L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 A.L. et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE
COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES,
Plaintiff and Respondent,
v.
S.L.
et al.,
Defendants and Appellants.
E056712
(Super.Ct.No. RIJ114732)
O P I N I O N
APPEAL
from the Superior Court of
County. Matthew C.
Perantoni, Temporary Judge. (Pursuant to
Cal. Const., art.
VI, § 21.) Affirmed.
Megan
Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and
Appellant A.L.
Linda
Rehm, under appointment by the Court of Appeal, for Defendant and Appellant
S.L.
Pamela
J. Walls, County Counsel, and Julie
Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants
and appellants A.L. and S.L. are the parents (individually Mother and Father)
of twins A. and S., a girl and boy, and their younger sister D. The parents appeal from the July 11, 2012, order of the
juvenile court terminating parental
rights and placing the children for adoption. (Welf. & Inst. Code, § 366.26.)
Mother claims the juvenile court
abused its discretion in denying her section 388 petition seeking the return of
the children to her care pursuant to a family maintenance plan or for
additional reunification services. Father joins this claim. Both parents claim that the court erroneously
refused to apply the parental benefit exception to the adoption preference
(§ 366.26, subd. (c)(1)(B)(i)), and on that basis select guardianship over
adoption as the children’s permanent plan.
We find no error and affirm.
II. BACKGROUND
A. The Initial Dependency Proceedings for the Twins (June 2007-January
2009)
Twins
A. and S. were taken into protective custody shortly after they were born in
June 2007. Mother and A., but not S.,
testified positive for methamphetamine, and both parents admitted using the
drug together the week before the twins were born. Mother also admitted using methamphetamine in
February and May 2007, despite knowing she was pregnant. She said she used the drug when she became
angry. She had also had little prenatal
care.
Mother and Father were not
married to each other when the twins were born.
Mother was still married to R.V. with whom she had two girls. Mother and R.V. separated in 2004 and Mother
has since filed for divorce. The older
girls lived with R.V. and had little contact with Mother. Mother did not support the older girls, and
visited them only on their birthdays. No
dependency proceedings were
instituted for the older girls.
Mother was born in 1977, and
admitted using marijuana and methamphetamine “on and off†since she was 13
years old. Between 2004 and 2005, she
attended a drug treatment program “through Riverside County†but began
using drugs again in 2006. In 2004, she
was diagnosed with paranoid schizophrenia, but claimed this was attributable to
her reaction to using drugs with R.V.
She underwent eight days of drug treatment during 2006.
Father was born in 1966, had used
marijuana since he was nine years old, and began using “speed†in his
20’s. As of June 2007 he was using
marijuana daily, but said he was trying to cut down on his usage. As noted, Father admitted using
methamphetamine with Mother while she was pregnant with the twins.
Father also had a criminal
history involving drugs, forgery, and burglary.
In April 2007, he was convicted of driving under the influence (DUI) and
was ordered to attend an outpatient DUI program. In May 2007, he was arrested for possessing
less than an ounce of marijuana. From
December 2006 to February 2007, he attended narcotics anonymous classes. He had additional drug-related arrests and
convictions in 2005 and 2006. In 1985,
Father was sentenced to five years in prison in Nevada, and a served another
five-year prison sentence in California between 1995 and 2000. His felony offenses included credit card forgery,
burglary, embezzlement, and grand theft.
In July 2007, the court sustained
allegations that the parents had substance abuse and domestic violence problems
that placed the twins at risk and interfered with their ability to protect the
twins. (§ 300, subd. (b).) The twins were continued in foster care, and
the parents were awarded reunification services. In November 2007, the parents were admitted
to separate inpatient drug treatment programs at MFI Recovery Center.
By the time of the six-month review
hearing in January 2008, the parents had nearly completed their inpatient
programs and were described as “on the road to recovery.†Mother was pregnant with D. The court continued the parents’
reunification services for an additional six months and authorized plaintiff
and respondent Riverside County Department of Public Social Services (DPSS) to
place the twins with the parents, provided the parents continued to comply with
their plans, had successful unsupervised day, overnight/weekend, and holiday
visits with the twins, and met other conditions. The parents had been visiting the twins
weekly and were described as “very attentive†to their needs.
In
February 2008, the court ordered A. to have open heart surgery and follow up
echocardiograms, as recommended. A. had
a congenital heart condition known as Shone Complex. A. was diagnosed as “[f]ailure to [t]hriveâ€
and was small for her age, but was meeting developmental and age appropriate
goals. S. was healthy and had no
developmental concerns. Mother gave
birth to D., a healthy baby girl, in June 2008.
No dependency proceedings were instituted for D.
Shortly after D. was born in
2008, the twins were placed with the parents pursuant to a family maintenance
plan, while D. was not part of the case.
The parents had completed their case plans, including parenting classes,
general counseling, anger management, substance abuse treatment, and random
drug testing. Father was not living with
Mother because his criminal record disqualified him from sharing the apartment
she obtained through a housing program.
Father was living with his parents in Riverside but was visiting the
family every day, working part-time, and looking for full-time employment. Mother was a “stay at home mom,†and the
family was supported by both Father and Cal-Works assistance. The parents were commended for “work[ing]
hard†to maintain their sobriety.
The parents were married in
either August or November 2008. In
January 2009, DPSS recommended, and the court terminated, the dependency
proceedings for the twins. The parents
were applauded for the good job they had done on behalf of themselves and their
children.
B. The “Reactivated†Dependency Proceedings for A., S., and D. (September
2010)
In September 2010, a “[r]eactivatedâ€
section 300 petition was filed for all three children. Mother took D., then age two, to the doctor
for treatment of a cold. At the doctor’s
office, Mother began to cry and said she needed help because she was tired of
Father beating her and the children. She
had bruises on her arms and claimed Father inflicted the bruises by beating
her. She also said Father had beaten S.,
then age three, for wetting the bed on the previous night, though S. showed no
signs of abuse. Father arrived at the
doctor’s office, and Mother left with him and the children despite being
advised to wait for the police to arrive and take a report. Mother said she did not want the police or
child protective services to be called.
Later that day, a social worker
arrived at the parents’ apartment accompanied by police officers. Father answered the door and had a three-inch
scratch under his left eye. The home was
“somewhat cluttered†and the kitchen counters and stovetop were dirty, but no
safety hazards were noted and there was adequate food for the children. The parents were interviewed separately.
According to Mother, she and
Father had used methamphetamine only two days earlier. Mother estimated she was using the drug twice
weekly, but was using more of it recently due to stress. In mid-September, the parents were served
with a 30-day eviction notice which Mother claimed was due to a bed bug
infestation. Mother claimed Father was
“‘verbally, mentally and physically abusive at times,’†and had once threatened
to kill her if she took the children and left him. Father struck her in January 2010, but the
aggression had since been “‘mostly verbal.’â€
The night before the interview,
Mother awoke to the sound of S. screaming in the bathroom. Father was hitting S. on his buttocks for
wetting the bed. Mother told Father to
stop and Father yelled at Mother so she “‘head butted’†him in the chin and he
pushed her back. The altercation
continued into the hallway and the living room, ending with both parents
falling to the floor. Father left the
apartment and Mother locked him out, but allowed him to return after he calmed
down.
Mother initially said she may
have inflicted the scratch on Father’s face, but she later said Father may have
“‘gotten it from being in a fight with his girlfriend who lives in another
apartment.’†Father admitted that he and
Mother were using methamphetamine again and that he was using marijuana daily
for anxiety. Both parents denied using
drugs in the presence of the children; instead, they would go into the bathroom
to use. Mother later said that Father
smoked marijuana even in the presence of the children. Marijuana was found in the kitchen within
reach of the children.
The police arrested both parents
because both had injuries and the officers were unable to determine who was the
primary aggressor. The children were
taken into protective custody and placed in foster care.
On October 12, 2010, after the
children were ordered detained, both parents tested positive for
methamphetamine and Father also tested positive for marijuana. When interviewed on October 6, Mother denied
that she or Father had failed to benefit from their previous services, saying
“‘[i]t was only a relapse’†and she and Father were not continuously using
drugs. The social worker opined that the
parents were minimizing their substance
abuse and domestic violence problems, and opined that they had failed to
benefit from their services. A. and S.
were now showing significant delays in cognition, speech, and language, and D.
was overweight.
On November 5, 2010, all three
children were adjudged dependents, the parents were denied reunification
services under section 361.5, subdivision (b)(13),
2011. The hearing was continued several
times and was ultimately held on July 11 2012.
The delay in the permanency
hearing is largely attributable to DPSS’s failed efforts to place the children
with paternal relatives. Between January
2011 and January 2012, DPSS attempted to place the children first with a
paternal aunt, and later with a paternal nephew and his wife, but the potential
relative placements ultimately fell through.
In February 2012, DPSS began searching for a suitable prospective adoptive
home for the children. In April 2012,
the children were placed in a prospective adoptive home.
C. Mother’s Section 388 Petition and the Section 366.26 Hearing
On July 11, 2012, Mother filed a
section 388 petition seeking placement of the children with her pursuant to a
family maintenance plan or, alternatively, additional reunification services
for herself. A hearing on the petition
was held on July 11, 2012, immediately before the section 366.26 hearing, which
had been continued from July 9 to allow Mother time to file her petition.
In support of her petition,
Mother showed she had completed Family Preservation Court along with additional
parenting and anger management classes.
She had tested clean in 48 random drug tests between November 2010 and
November 2011, and had a narcotics anonymous sponsor. She was employed and had an apartment in San
Bernardino. In October 2011, Mother and
Father signed a month-to-month rental agreement for the apartment.
At the hearing, the parties
agreed that if called to testify Mother would affirm that Father had not been
living in the apartment since June 6, 2012.
DPSS reports showed that Father had a positive drug test in November
2011 and had since dropped out of Family Preservation Court. Mother’s counsel told the court that Mother
and Father had agreed it would be best for the children if he moved out “so
Mother would be able to have the children returned to her.†Regarding the best interest prong, Mother’s
counsel pointed out that Mother and Father had regularly visited the children
twice weekly, at least until a couple of months before the hearing.
sought Mother‘s “counsel and . . . comfort.â€
DPSS opposed the petition. Counsel for DPSS conceded that Mother had
shown changed circumstances but argued she had not met her burden of showing
that the children’s best interests would be served by returning them to her
care pursuant to a family maintenance plan, or offering her additional
reunification services. Counsel
questioned whether Mother had benefited from her services, and pointed out that
Mother apparently still had a relationship with Father, who tested positive for
drugs in November 2011 and failed to complete Family Preservation Court.
Counsel emphasized that returning
the children to Mother would not serve their best interests because, in
continuing to expose the children to Father, Mother would not provide a home
environment “‘free from the negative effects of substance abuse,’†which, under
section 300.2, is necessary for the “‘safety, protection, and physical and
emotional well[-]being of the child.’â€
In short, counsel argued that Mother had not shown that she understood
or appreciated that her association with Father could jeopardize the children’s
safety and well-being.
In addition, DPSS reports showed
that the children were doing very well in their prospective adoptive home,
where they were placed on April 27, 2012.
The June 5, 2012, addendum report recounted that, during a May 22 visit,
the children “clung to the PAPs and would not go into the play area with the
parents†until they were assured they would be leaving with the PAP’s at the
end of the visit. S. was punching the
parents during the visit but responded to the PAP’s redirection. A. withheld affection from the parents during
the visit. D. would not leave the PAP’s
at first, and often ran back to them for reassurance. Counsel argued that the children’s behavior
showed they understood that the PAP’s were committed to raising them, and they
were responding to the sense of comfort and stability the PAP’s were providing
them.
DPSS reports also showed that the
children were improving in their “aggressive communication and their cognitive
deficits†through therapy in the PAP’s home, and the PAP’s were committed to
doing “whatever [was] necessary†to ensure that the children’s needs were met
“on a consistent and ongoing basis.†A.
would require a heart valve transplant in the future. In sum, DPSS questioned Mother’s ability to
consistently provide a safe home environment for the children, together with
the level of care the children required, given her history of substance abuse,
her failed reunification with the twins, and her methamphetamine use even after
the children were detained again in September 2010.
In rebuttal, Mother’s counsel emphasized
that at the time of the May 22 visit, the children had only been with the PAP’s
for less than a month, and the children were likely showing their loyalty to
the PAP’s by being angry with their parents.
Minors’ counsel joined DPSS’s
opposition to Mother’s petition.
Father’s counsel argued in support of the petition, emphasizing Mother’s
success at maintaining sobriety since November 2010, the parents’ frequent, consistent,
and on-time visits with the children, and a March 12, 2012, DPSS addendum
report showing that the children enjoyed visiting with the parents.
At the conclusion of the hearing,
the court commended Mother for the steps she had taken to address her
“long-standing substance abuse issues†and other issues, but denied the
petition on the grounds her circumstances had not changed to a degree that
would justify the requested change in order, and the requested change would not
serve the best interests of the children.
Proceeding to the section 366.26
hearing, the court terminated parental rights and selected adoption as the
children’s permanent plan. The court
rejected the request by counsel for each of the parents to place the children in
a long-term guardianship on the ground that severing their relationship with
the parents would be detrimental to them.
Father’s counsel pointed out that the children had only been living with
the PAP’s for around two and one-half months but had known the parents’ love
and affection their entire lives.
III. DISCUSSION
A. Mother’s Section 388 Petition Was Properly Denied
Section 388 allows the
parent of a dependent child to petition the juvenile court to change, modify,
or set aside a previous order of the court.
Under the statute, the parent has the burden of establishing by a
preponderance of the evidence that (1) there is new evidence or changed
circumstances justifying the proposed change of order, and (2) the change would
promote the best interest of the child.
(In re Stephanie M. (1994) 7 Cal.4th 295, 317; § 388, subds.
(a), (b).) The decision to grant or deny
the petition is addressed to the sound discretion of the juvenile court, and
its denial of the petition will not be overturned on appeal unless an abuse of
discretion is shown. (
959-960 [Fourth Dist., Div. Two].)
“After the termination of
reunification services, the parents’ interest in the care, custody and
companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to
the needs of the child for permanency and stability
. . . .’†(
309.) Still, it is at this very point
that “[s]ection 388 plays a critical role in the dependency scheme. Even after family reunification services are
terminated and the focus has shifted from returning the child to his parent’s
custody, section 388 serves as an ‘escape mechanism’ to ensure that new
evidence may be considered before the actual, final termination of parental
rights.†(In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506; In re
Kimberly F. (1997) 56 Cal.App.4th 519, 528.)
Mother claims the juvenile court
abused its discretion in denying her section 388 petition. She argues that her “substantial efforts to
regain sobriety, a stable life style, and maintain her close relationship with
the children†constituted a change in circumstances, and “it was in the best
interest of the children to have continued contact†with Mother. We disagree.
As the juvenile court concluded
at the time of the July 11, 2012, hearing on her petition, Mother’s
circumstances had not changed enough, or for a long enough period, to justify
returning the children to her care pursuant to a family maintenance plan or
granting her additional reunification services.
To be sure, Mother had been clean and sober for 20 months since November
2010, a substantial period of time, but she had been clean and sober for a comparable
period during the initial dependency
proceedings (June 2007 to January 2009) but relapsed and was using
methamphetamine again by September 2010.
This occurred despite Mother’s completion of an inpatient substance
abuse program and relapse prevention class in February 2008.
In addition, Mother failed
several attempts to stay sober between 2004 and 2006, even though she had two
other young children at the time with her first husband R.V. Mother was 35 years old at the time of the
July 11, 2012, hearing, and had begun using methamphetamine at the age of
13. Mother was also still in a
relationship with Father, who also had a lengthy history of substance abuse,
had not remained clean and sober, and had yet to complete Family Preservation
Court. As the social worker reported,
Mother had not addressed the domestic violence problem during the second
dependency proceedings, or thereafter.
In sum, given her history of methamphetamine use, relapses, lack of
insight into her domestic violence problem, and questionable judgment, the
court did not abuse its discretion in concluding that Mother did not show a
sufficient change of circumstances to justify granting her petition.
Nor did the juvenile court abuse
its discretion in concluding that granting Mother’s petition would not serve
the best interests of the children. By
the time of the July 11, 2012, hearing, the children had spent more than a year
in foster care awaiting placements with paternal relatives that never
materialized. In June 2012, the twins
turned five years old and D. turned four years old. The children were placed with the PAP’s in
April 2012, and quickly bonded with them.
At a May 22, 2012, visit with the parents, S. was hitting the parents
and A. and D. were reticent to show affection toward them. The children also had special needs. A. would need a heart valve transplant; A.
and S. had developmental delays; and all three children hit each other. These problems were being addressed and the
children had shown substantial improvement in foster care and later in the
PAP’s care, but it was doubtful that Mother was capable of providing the same
level of care and stability that the PAP’s provided and that the children very
much needed and deserved.
B. The Court Properly Determined That the Parental Benefit Exception Did
Not Apply
Both
parents claim the juvenile court erroneously concluded that the parental
benefit exception did not apply (§ 366.26, subd. (c)(1)(B)(i)), and as a
result erroneously selected adoption over guardianship as the children’s
permanent plan. Here, too, we find no
abuse of discretion.
1. The Parental Benefit Exception
At
a section 366.26 permanency planning hearing, the juvenile court determines a
permanent plan of care for a dependent child.
(In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Permanent plans include adoption,
guardianship, and long-term foster care.
(In re S.B. (2008) 164 Cal.App.4th 289, 296.) “Adoption, where possible, is the permanent
plan preferred by the Legislature.†(In
re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Adoption involves terminating the legal
rights of the child’s natural parents, but guardianship and long-term foster
care leave parental rights intact. (
than foster care, is not irrevocable and thus falls short of the secure and
permanent future the Legislature had in mind for the dependent child.†(In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1344.)
In order to avoid
termination of parental rights and adoption at a section 366.26 hearing, a
parent has the burden of showing that one or more of the statutory exceptions
to termination of parental rights set forth in section 366.26 subdivision
(c)(1)(A) or (B) apply. (In re Scott
B. (2010) 188 Cal.App.4th 452, 469; In re Celine R. (2003) 31
Cal.4th 45, 53.) The exceptions “merely
permit the court, in exceptional circumstances (In re Jasmine D.
[(2000) 78 Cal.App.4th 1339,] 1348-1349 [Jasmine D.]), to choose an
option other than the norm, which remains adoption.†(In re Celine R., supra, at p. 53).
Under the parental benefit
exception (§ 366.26, subd. (c)(1)(B)(i)), the court must “find[] a compelling
reason for determining that termination [of parental rights] would be
detrimental to the child . . . .†(§ 366.26, subd. (c)(1)(B), italics
added; In re Scott B., supra, 188 Cal.App.4th at p. 469.) The parental benefit exception applies when
two conditions are shown: the parent has
“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); In re Angel B. (2002) 97
Cal.App.4th 454, 466.)
In order to show that the
child would benefit from continuing the relationship with the parent, the
parent “must do more than demonstrate . . . an emotional bond with
the childâ€; the parent “must show that he or she occupies a ‘parental role’ in
the child’s life.†(In re Derek W.
(1999) 73 Cal.App.4th 823, 827.) The
parent must also show that the parent-child 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.†(In re Autumn H., supra,
27 Cal.App.4th at p. 575.)
“‘The balancing of
competing considerations must be performed on a case-by-case basis and take
into account many variables, including the age of the child, the portion of the
child’s life spent in the parent’s custody, the “positive†or “negative†effect
of interaction between parent and child, and the child’s particular needs. [Citation.]
When the benefits from a stable and permanent home provided by adoption
outweigh the benefits from a continued parent/child relationship, the court
should order adoption.’
[Citation.]†(Jasmine D.,
supra, 78 Cal.App.4th at pp. 1349-1350.)
2. Standard
of Review
Appellate courts have variously
applied the substantial evidence test and the abuse of discretion test in
considering challenges to juvenile court determinations that the parental
benefit exception to termination did not apply.
(In re Scott B., supra, 188 Cal.App.4th at p. 469.) There is little, if any, practical difference
between the two. (Ibid.) As explained in Jasmine D.: “‘[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence
for the ruling. . . . Broad deference must be shown to the trial
judge. The reviewing court should
interfere only “‘if [it] find[s] that . . . no judge could reasonably
have made the order that he did.’ . . .â€â€™ [Citations.]†(Jasmine D., supra, 78 Cal.App.4th at
p. 1351.)
Further, the abuse of
discretion standard has traditionally been applied to custody determinations
and “seems a better fit†for reviewing a juvenile court’s determination that
the parental benefit exception does not apply.
(Jasmine D., supra, 78 Cal.App.4th at p. 1351.) This is so because the court must find “a
‘compelling reason’†for applying the exception, and this is “a
quintessentially discretionary determination.â€
(Ibid.)
In the view of at least two
Courts of Appeal, both the substantial evidence and abuse of discretion
standards of review come into play in determining whether the parental benefit
or sibling relationship exceptions apply.
(In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314-1315 [Sixth Dist.]; In
re K.P. (2012) 203 Cal.App.4th 614, 621-622 [Second Dist., Div.
Seven].) Under either standard of
review, the juvenile court properly determined that the parental benefit
exception did not apply.
3. Analysis
Given
their consistent visits with the children, the parents claim the juvenile court
erroneously refused to apply the parental benefit exception and as a result
erroneously selected adoption over guardianship as the children’s permanent
plan. Each parent claims the record
showed that the children would have benefited more from continuing their relationship
with each parent than from being adopted.
We disagree.
To
be sure, the record unequivocally shows, and the juvenile court did not
disagree, that the parents “maintained regular visitation and contact†with the
children through their consistent visits with the children. (§ 366.26, subd.
(c)(1)(B)(i); In re Angel B., supra, 97 Cal.App.4th at p. 466.) But based on the entire record, the court
reasonably determined that the children would benefit more from being adopted
into a permanent, stable home than from maintaining their relationship with the
parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
There was no indication
that the children would benefit more from continuing their relationship with
the parents than they would from being adopted.
The twins were five years old and D. was four years old at the time of
the section 366.26 hearing. They quickly
bonded to the PAP’s, with whom they had only been living for approximately two
and one-half months. As counsel for DPSS
argued, it appeared that the children were responding positively to the PAP’s
because they understood that the PAP’s were dedicated to them. All three children, and especially the twins,
had known much instability before being placed with the PAP’s. In sum, substantial evidence showed, and the
juvenile court reasonably determined, that neither parent was capable of
providing the level of care and stability that the PAP’s or other prospective
adoptive parents could provide and that these young children very much needed.
Nor was there any
indication that the children would suffer any detriment if parental rights were
terminated and they never saw the parents again. As stated in In re Angel B., supra, 97 Cal.App.4th 454 at page 466: “To overcome the preference for adoption and
avoid termination of the natural parent’s rights, the parent must show that
severing the natural parent-child relationship would deprive the child of a
attachment such that the child would be greatly
harmed. [Citation.]†Even though the record showed that the
children enjoyed visiting with the parents—at least until the May 22, 2012,
visit—there was no indication that any of them would be even minimally harmed
by severing their relationship with the parents. Indeed, there was no indication that any of
the children shared a positive emotional attachment with either parent at the
time of the July 11, 2012, hearing.
Lastly, Mother claims the
juvenile court “erred by not considering the benefits of legal guardianship
instead of adoption.†(Capitalization
omitted.) She relies on
1530 (Brandon C.), where the juvenile
court placed twin boys in a long-term guardianship with their paternal
grandmother, with whom the boys had been living since they were less than one
year old. (Id. at pp. 1532-1533.) At
the section 366.26 hearing, the grandmother told the court that the boys had a
good relationship with their mother, and the grandmother felt that the
relationship should continue. (
as the boys’ permanent plan, reasoning that it was in the best interests of the
boys to maintain their relationship with their mother. (Ibid.)
The Los Angeles County Department
of Children and Family Services appealed, claiming insufficient evidence
supported the juvenile court’s finding that termination of parental rights
would be detrimental to the boys. (
1532-1533.) The Brandon C. court simply held that substantial evidence supported
the juvenile court’s determination that the parental benefit exception applied,
because the mother had consistently visited the boys, and the boys had “a
substantial, positive emotional attachment†with the mother. (Id.
at pp. 1533-1535.) The court wrote that
it was “not troubled by the [juvenile] court’s reference to mother being able
to provide a ‘safety valve in the future, if need be,’†or additional security
for the children in the event the grandmother became unable to care for
them. (Id. at p. 1538.)
Mother argues that here, as
in Brandon C., the juvenile court
should have selected guardianship over adoption as the children’s permanent
plan. Not so. Unlike the twin boys in Brandon C., none of the children here had “a substantial, positive emotional attachment†with either parent such
that any of them would be “greatly
harmed†by discontinuing the relationship.
(In re Angel B., supra, 97
Cal.App.4th at p. 466.) And, for the
reasons discussed, neither parent met his or her burden of showing that any of
the children would benefit more from continuing their relationship with either
parent than from being adopted into a permanent, stable home. (In re
Autumn H., supra, 27 Cal.App.4th at p. 575.)
IV. DISPOSITION
The
July 11, 2012, order terminating parental rights and placing A., S., and D. for
adoption is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RICHLI
Acting P. J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] Under section 361.5, subdivision (b)(13), reunification services “need not be
provided†to a parent when the court finds by clear and convincing evidence
that the parent has a history of extensive drug use and has “resisted prior
court-ordered treatment for this problem†during the three-year period
immediately prior to the filing of the petition.
