In re J.O.

 

 

 

 

 

 

 

Filed 1/31/14  In re J.O.
CA2/5

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE
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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

In re J.O., a Person Coming Under the Juvenile Court Law.	B250739       (Los Angeles County       Super. Ct. No. CK68806)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   S.J.,               Defendant and Appellant.

 

            APPEAL
from an order of the Superior Court of the
County of Los Angeles, S. Patricia Spear, Judge.  Affirmed.

            Catherine
C. Czar, under appointment by the Court of
Appeal, for Defendant and Appellant.

            John
F. Krattli, County Counsel, James M.
Owens, Assistant County Counsel, Kristine P. Miles, Principal Deputy County
Counsel for Plaintiff and Respondent.

>INTRODUCTION

> 

            S.J. (mother) appeals from the
juvenile court’s order terminating her parhref="http://www.sandiegohealthdirectory.com/">ental rights to her son,
J.O., based on her failure to reunify with him or establish that she had
developed a beneficial parental relationship with him, the termination of which
would be detrimental to him.  We hold
that because there was insufficient evidence to show that mother had developed
a beneficial relationship with J.O., and because the juvenile court acted
within its discretion in concluding that termination would not be detrimental
to J.O., the court did not err in terminating mother’s parental rights.  We therefore affirm the order terminating
parental rights.

 

FACTUAL
AND PROCEDURAL BACKGROUNDB

 

            In
April 2011, three days after his birth, J.O. came to the attention of the
Department of Children and Family Services (DCFS) based on a referral of
general neglect by mother.  Mother had
three other children
removed from her care due to, inter alia, her substance abuse.  The juvenile court had terminated her
parental rights to two of those children in May 2009, and the court had
scheduled a Welfare and Institutions Code section 366.26href="#_ftn1" name="_ftnref1" title="">>[1]
hearing regarding the third child.

            In
May 2011, DCFS filed a section 300 petition based on the parents’ substance
abuse issues.  As to mother, DCFS in the
petition, as subsequently amended by interlineation, alleged, “[Mother] . . .
ha[d] a history of illicit drug use, which periodically render[ed her]
incapable of providing regular care for [J.O.] 
[J.O.’s three] siblings . . . received href="http://www.mcmillanlaw.us/">Permanent Placement Services due to . . .
mother’s illicit drug abuse.  [Mother’s]
use of illicit drugs endanger[ed J.O.’s] physical . . . safety and place[d
J.O.] at risk.”href="#_ftn2" name="_ftnref2"
title="">[2]  At the detention hearing, the juvenile court
detained J.O. and ordered monitored parental visitation with him a minimum of
“3x or 3 hours per week.”

            At
the jurisdiction hearing in June 2011, the juvenile court sustained the
petition under section 300, subdivision (b).  According to the juvenile court, the parents’
histories of illicit drug use rendered them incapable of providing regular care
for J.O. and placed him at risk of harm.

            At
the July 2011 disposition hearing, the juvenile court declared J.O. a dependent
child under section 300, subdivision (b) and ordered him suitably placed.  The juvenile court ordered DCFS to provide
parents with reunification services, including a drug rehabilitation program
with random blood testing, parenting classes, and individual counseling.  The juvenile court ordered monitored parental visitation
and granted DCFS discretion to liberalize.

            In
January 2012, DCFS reported to the juvenile court that J.O. had been placed
with foster parents who were interested in providing him a permanent home if his
parents failed to reunify with him.  DCFS
further reported that mother had “walked out” of her drug rehabilitation program,
but had continued to have appropriate weekly visits with J.O.  DCFS recommended six additional months of
reunification services for parents.  At a
January 2012 status review hearing, the juvenile court found that a return to
parents’ custody at that time would create a substantial risk of detriment to
J.O., but ordered further reunification services.

            In
June 2012, the private foster family agency through which J.O.’s foster parents
were licensed reported to the juvenile court that J.O. had been placed with his
foster parents for 10 months and was “at ease with his foster family and
look[ed] to them for comfort and security. . . .”  Although mother and father visited
consistently with J.O. at the foster agency, the agency expressed concern to
the juvenile court about the “level of care” they provided to J.O. during
visitation.  According to the foster
agency, the parents’ “visitation ha[d] not progressed and there ha[d] been
little movement and progress on their case over all.  [P]arents ha[d] been given multiple
opportunities to strengthen their connection to [J.O.] and move their case
toward reunification but ha[d] not done so.”  Accordingly, the foster agency recommended
that the case not be continued for an additional six months.

            In
a June 2012 status review report, DCFS reported that mother was not complying
with the juvenile court’s order to participate in a substance abuse program.  Nevertheless, because the parents’ visits with
J.O. generally went well, DCFS recommended additional reunification services
for them.

            In
June 2012, J.O.’s foster parents filed a request for de facto parent status
with the juvenile court. The juvenile court granted the foster parents’ request
at a 12-month status review hearing, but continued reunification services for
parents.

            In
an 18-month status review report, DCFS advised the juvenile court that parents
struggled with establishing a bond and relationship with J.O. and that it was a
“constant struggle” for parents to comply with juvenile court orders.  DCFS recommended that the juvenile court
terminate reunification services and implement a plan for adoption by the
foster parents.  The juvenile court set
the matter for a contested hearing in January 2013.  At the hearing in January 2013, the juvenile
court found that parents were not in compliance with their case plans and that
returning J.O. to their care would create a substantial risk of physical and
emotional detriment to J.O.  The juvenile
court therefore terminated reunification services.

            In
a section 366.26 report, DCFS informed the juvenile court that J.O. was
securely bonded to his foster parents and viewed himself as a member of their
family.  Although mother’s monitored
visits with J.O. had been consistent, they had not progressed beyond three
hours a week.  DCFS recommended that
mother’s and father’s parental rights to J.O. be terminated and that he be
freed for adoption.

            At
the July 2013 section 366.26 hearing, the juvenile court admitted the following
documentary evidence:  the section 366.26
report in its entirety; a July 17, 2013, last minute information for the court;
and a July 17, 2013, status review report. 
Mother then testified as follows: 
Mother was in her early twenties and became a dependent of the juvenile
court system when she was born.  She
resided with either her grandparents or in foster homes growing up.

            Mother
visited with J.O. once a week for three hours at the foster family agency.  A social worker monitored her visits.  Other than “a couple” of visits that she
missed because she was sick, mother visited J.O. every week.  During her visits, she brought J.O. food and
they would play and watch television.  J.O.
called her “momma.”

            Mother
admitted that her relationship with J.O. could have been better, but she had not
been allowed to visit him more often as she had requested.  Mother did not agree with DCFS’s
recommendation that her parental rights to J.O. be terminated.  She wanted to be part of J.O.’s life and felt
she was a positive influence in his life.  Mother asked the juvenile court not to
terminate her parental rights.

            Following
argument, the juvenile court made the following ruling:  “The Court: 
It is a very sad case because [mother] has been through the system.  Unfortunately, she’s had a lot of issued with
marijuana and drugs, and she hasn’t really completed her programs enough to get
further into reunifying with [J.O.]  And
so the court’s job is basically to follow the law.  [¶] 
And so in order for the court not to terminate parental rights under the
exception that [mother] meets—she has maintained visits, but the court in order
to not terminate parental rights would have to find it was a compelling reason
to find it would actually be detrimental for [J.O.] to not terminate [mother’s]
parental rights and it would be bad for [J.O.] to not see [mother] anymore, and
the court can’t make that finding. 
[¶]  And I assume you’re
attorney’s discussed that with you, but there is a lot of case law because this
is obviously something that parents feel very strongly about.  But having just monitored visits and given
that [J.O.] is so young and given too I saw on petitioner’s [exhibit] 2 that
[mother’s] actually maybe not even in her program anymore and so still possibly
struggling with her sobriety, the court can’t make any kind of finding,
pursuant to the code, that would allow it to not terminate parental
rights.  [¶]  The language of the code is mandatory that,
if the child is adoptable, the court does find by clear and convincing evidence
that [J.O.] is adoptable and that it would be detrimental for [J.O.] to be
returned to the parents at this time.  So
continued jurisdiction of [J.O.] is necessary under [section] 300(B).  [¶] . . . [¶] 
And so at this time the court will terminate the parental rights of the
[mother] and [father], and any other parents claiming to be the parents of
[J.O.] . . . pursuant to section 366.26. 
[¶]  [J.O.’s] care, custody, and
control is taken from the parents and placed with the [DCFS], and [J.O.] is
declared free from the care, custody, and control [of parents].  He is placed with the Department for adoptive
planning and placement.  [¶] . . .
[¶]  The court does terminate parental
rights at this time and finds that the plan is for adoption.  The court finds that the de facto parents are
the prospective adoptive parents.”

           

DISCUSSION

 

            A.        Applicable
Legal Principles

 

>1.         Section 366.26 and Beneficial Relationship Exception to Preference
for Adoption

            “At a hearing under section 366.26, the court must select and
implement a permanent plan for a dependent child.  Where there is no probability of reunification
with a parent, adoption is the preferred permanent plan.  (In re Derek W. (1999) 73 Cal.App.4th
823, 826 [86 Cal Rptr.2d 739].)  To
implement adoption as the permanent plan, the juvenile court must find, by
clear and convincing evidence, that the minor is likely to be adopted if
parental rights are terminated.  (§
366.26, subd. (c)(1).)  Then, in the
absence of evidence that termination of parental rights would be detrimental to
the child under statutorily specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)),
the juvenile court ‘shall terminate parental rights’ (§ 366.26, subd. (c)(1)).  [¶]  Section
366.26 provides an exception to the general legislative preference for adoption
when ‘[t]he court finds a compelling reason for determining that termination
would be detrimental to the child’ (§ 366.26, subd. (c)(1)(B)) 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).)  The ‘benefit’ prong of the exception requires
the parent to prove his or her relationship with the child ‘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 re Autumn H. (1994) 27 Cal.App.4th
567, 575 [32 Cal.Rptr.2d 535]; see also In re Derek W., supra, 73
Cal.App.4th at p. 826 [‘parent has the burden to show that the statutory
exception applies’].)  No matter how
loving and frequent the contact, and notwithstanding the existence of an ‘emotional
bond’ with the child, ‘the parents must show that they occupy “a parental role”
in the child’s life.’  (In re Andrea
R. (1999) 75 Cal.App.4th 1093, 1108 [89 Cal.Rptr.2d 664]; see In re
Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [35 Cal.Rptr.2d 162].)  The relationship that gives rise to this
exception to the statutory preference for adoption ‘characteristically aris[es]
from day-to-day interaction, companionship and shared experiences.  Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’  (In re Casey D. (1999) 70 Cal.App.4th
38, 51 [82 Cal.Rptr.2d 426].)  Moreover, ‘[b]ecause
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 [93 Cal.Rptr.2d 644].)”  (>In re K.P. (2012) 203 Cal.App.4th 614,
620-621, italics added.)

 

                        >2.         Standard
of Review

            Mother
maintains that the appropriate standard for reviewing a juvenile court’s ruling
concerning the existence of the beneficial parental relationship exception is the
substantial evidence standard.  In doing
so, she takes issue with the recent holdings in cases such as >In re K.P., supra, 203 Cal.App.4th 614,
which concluded that the appropriate standard of review is a mixed standard
that requires the application of both the substantial evidence and abuse of
discretion standards. 

We disagree with
mother’s statement of the standard of review and instead follow the standard
articulated in In re K.P., supra, 203
Cal.App.4th 614.  “For years California courts
have diverged in their view about the applicable standard of review for an appellate challenge to a juvenile court
ruling rejecting a claim that an adoption exception applies.  Most
courts have applied the substantial evidence standard of review to this determination (see, e.g., In re
Autumn H., supra, 27 Cal.App.4th at p. 576; In re L. Y. L. (2002)
101 Cal.App.4th 942, 953 [124 Cal.Rptr.2d 688]), although at least one court
has concluded that it is properly reviewed for an abuse of discretion (In re
Jasmine D., supra, 78 Cal.App.4th at p. 1351).  Recently, the Sixth Appellate District has
cogently expressed the view that the review of an adoption exception incorporates both the
substantial evidence and the abuse of discretion standards of review.  (>In
re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [117 Cal.Rptr.3d
568] (Bailey J.).)  The Bailey
J. court observed that the juvenile court’s decision whether an adoption exception applies involves two
component determinations:  a factual and
a discretionary one.  The first
determination—most commonly whether a beneficial parental or sibling
relationship exists, although section
366.26 does contain other exceptions—is,
because of its factual nature, properly reviewed for substantial evidence.  (189 Cal.App.4th at p. 1314.)  The second determination in the exception analysis is whether the
existence of that relationship or other specified statutory circumstance
constitutes ‘a compelling reason for determining that termination would be
detrimental to the child.’  (§ 366.26, subd. (c)(1)(B); see Bailey
J., at p. 1315.)  This ‘“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,’ is appropriately reviewed under the deferential abuse of
discretion standard.  (Bailey J.,
at p. 1315.)”   (In re K.P., supra, 203 Cal.App.4th at pp. 621-622.)

 

 

 

            B.        Analysis

 

                        >1.         Beneficial Relationship

            Mother contends that the evidence
showed that she had established a beneficial parental relationship with
J.O.  According to mother, she visited J.O.
regularly and, as a result, he had a significant, positive, and emotional
attachment to her.

            It
is undisputed that mother visited J.O. on a regular basis, albeit in a
monitored setting.  It is equally
undisputed, however, that mother’s visitation never changed from the three
hours per week initially ordered by the juvenile court in July 2011 and that
her visitation never advanced to an unmonitored setting—i.e., over the two-year
period of the dependency, mother made little or no progress in occupying a parental
role in J.O.’s life.

            In
addition, mother’s testimony showed that during her visits with J.O., they played
and watched television.  But that
testimony described a relationship more akin to a friendship, as opposed to the
required parent-child relationship. 
Thus, there was insufficient evidence to establish that mother’s
relationship with J.O. promoted his well-being to such an extent that it
outweighed the benefit J.O. would derive from a permanent home with his
prospective adoptive parents.  (See >In re Autumn H., supra, 27 Cal.App.4th
at p. 575.)  Accordingly, the juvenile
court correctly concluded that mother had failed to show that she had a
beneficial parental relationship with J.O.

 

                        2.         Detriment from Termination

            Even
assuming that the evidence supported a reasonable inference that mother had
developed a beneficial parental relationship with J.O., the juvenile court did
not abuse its discretion by determining that the relationship did not
constitute a compelling reason for concluding that termination of mother’s parental
rights would be detrimental to J.O.  It
was undisputed that, in granting the prospective parents de facto parent
standing, the juvenile court already found that they had “assumed, on a
day-to-day basis, the role of a parent, fulfilling [J.O.’s] physical and
psychological needs for care and affection, and . . . [had] assumed that role
for a substantial period.”  (>In re >Merrick> V. (2004) 122 Cal.App.4th> 235, 256.)  And, at the time of the section 366.26
hearing, the evidence confirmed that J.O. was securely bonded to his
prospective parents and viewed himself as a member of their family.  By contrast, the evidence showed that
mother’s visits with J.O. never progressed beyond monitored, three-hours-a-week
visits, and that, according to DCFS, she struggled to establish a bond with
J.O. and to comply with the juvenile court’s orders.  The juvenile court had also terminated
mother’s reunification services based, in large part, on her failure to
successfully complete her mandatory drug rehabilitation program.

            Based
on the evidence, even if there were a beneficial parental relationship, it was
not arbitrary, capricious, or patently absurd for the juvenile court to
conclude that termination of mother’s parental rights would not be detrimental
to J.O. and that the benefits to be derived from adoption by a family to which
he was bonded and of which he considered himself a member, outweighed any
benefit J.O. might derive from a continued relationship with mother.  The evidence did not support a reasonable
inference that this was the “extraordinary” type of case necessary to overcome
the statutory preference for adoption.  Therefore,
the juvenile court did not err in terminating mother’s parental rights to J.O.

 

>DISPOSITION

> 

            The juvenile
court’s order terminating parental rights is affirmed.

 

            NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    MOSK,
J.

 

 

We concur:

 

 

 

                        TURNER,
P. J.

 

 

 

                        KRIEGLER,
J.