In re Julian G.
Filed 1/9/13 In re Julian G. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JULIAN G. et al., Persons Coming Under the Juvenile Court
Law.
FRESNO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
L.R. et al.,
Defendants
and Appellants.
F064836
(Super.
Ct. Nos. 08CEJ300251-1, 08CEJ300251-2)
In re JAIDEN G., a Person Coming Under the Juvenile Court Law.
FRESNO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
JUAN G.,
Defendant and
Appellant.
F064881
(Super. Ct. No. 08CEJ300251-2)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
County. Mary Dolas,
Commissioner.
Karen J. Dodd,
under appointment by the Court of Appeal, for Defendant and Appellant L.R.
Neale B. Gold,
under appointment by the Court of Appeal, for Defendant and Appellant Juan G.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
L.R.
(mother) and Juan G. (father) appeal from the juvenile court’s orders failing
to find that the beneficial parent-child relationship exception to adoption is
applicable to their case and terminating the
Julian G. (born in 2005) and Jaiden G. (born in 2009) pursuant to Welfare and
Institutions Code section 366.26.
contentions and affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
Background
On October 9,
2008, a petition was filed by the Fresno
County Department of Social Services (department) pursuant to section 300
alleging that mother exposed Julian to an unsafe environment of drug activity
when she was found in possession of methamphetamine. The methamphetamine was in easy access to
Julian, who was then almost three years old.
Mother had a history of drug arrests and incarceration. At the jurisdiction hearing on December 17,
2008, mother admitted an allegation that she was in possession of
methamphetamine, had exposed Julian to an unsafe environment of drug activity,
had a history of drug arrests and incarcerations, and that Julian was at
substantial risk of abuse.
Mother and
father were married just prior to the filing of the petition. Father is a gang member. He was arrested and incarcerated at the same
time as mother. Father was in violation
of parole. Father initially identified
himself as Julian’s father. Mother,
however, identified A.G. as Julian’s father in August 2007.
acknowledged that he was Julian’s biological father. The department considered father to be the
alleged father of Julian. Father was
incarcerated in early 2009 and was not in contact with Julian or receiving
services.
Jaiden was born
in May 2009. Although mother was making
moderate progress in participating in her reunification plan and had negative
drug results, she was convicted of receiving stolen property, stemming from the
arrest in October 2008 leading to Julian’s detention. Mother was sentenced to county jail. In a November 2009 progress report, the
department noted that mother had begun extended visitation with Julian and had
made significant progress ameliorating the problems that led to Julian’s
detention.
On November 20,
2009, the juvenile court held a 12-month review hearing, continued the hearing,
and ordered further reunification
services for mother. On January 15,
2010, mother was placed on family maintenance services and reunification
services were terminated. By September
2010, mother had been released from the Family Foundations Program, an
alternative sentencing program and was participating in substance abuse
treatment and four NA/AA meetings a week.
She was also enrolled in three college courses.
Mother did not
show up for four random drug tests in September 2010. Between October and mid-November 2010, mother
missed four of ten random drug tests and tested negative for the presence of
drug and alcohol in six tests. Beginning
on December 7, 2010 and into mid-January 2011, mother was a constant no-show,
missing eight random drug tests. On the
four times she tested since December 7, 2010, she tested negative for drugs and
alcohol.
On or about
January 20, 2011, mother tested positive for methamphetamine. Julian and Jaiden were removed from mother’s
home and mother was incarcerated. Mother
reported to a social worker in January 2011 that she had been using
methamphetamine for the past few months.
Mother admitted that she had one negative drug test by placing someone
else’s urine in a condom and placing it inside a body cavity. Mother walked out of a substance abuse
program in March 2011 and missed six consecutive random drug tests.
On January 25,
2011, a new petition was filed naming Jaiden as being at risk for further abuse
or neglect due to mother’s ongoing substance abuse. A supplemental petition was filed as to
Julian making the same allegation.
Father was incarcerated in January 2011 and was expecting to be released
in late March 2011. At the jurisdiction
hearing on March 25, 2011, mother waived her rights to a contested hearing and
admitted the allegations in the petitions.
Prior to the
disposition hearing, the department filed a report recommending no
reunification services to mother due to her history of excessive and chronic
use of drugs pursuant to section 361.5, subdivision (b)(13). A social worker observing mother’s visits
with the children in February 2011 noted that mother lacked the ability to
provide the structure the children need on a consistent basis. Julian appeared to the social worker to be
“parentified†in his mother’s presence, structuring the visits and telling
mother when Jaiden needed to use the bathroom.
Mother failed to engage the children together in play. Father failed to demonstrate his ability to
provide structure for Jaiden due to his incarceration and failure to maintain
regular contact with Jaiden throughout the history of the case.
As of February
2012, Julian had been in the foster care system for two years and Jaiden had
been in the system for ten months.
Julian had been returned to mother’s home once and was in five foster
care placements. Jaiden had been in two
foster care placements. Both children
were doing well with their prospective adoptive parents.
At the
disposition hearing, on July 1, 2011, the court denied mother and father
reunification services. The court denied
father’s request to be elevated to Julian’s presumed father. The court ordered one supervised visitation
per month.
Section 366.26
Hearing
The department’s report for the
section 366.26 hearing recommended a plan of adoption for both children and
termination of the parental rights of mother and father.
Julian had been in therapy since July 2011. Initially he was guarded, which the therapist
considered a typical response for children who have been neglected. Julian was opening up in therapy. He was a well-adjusted and bright child. Julian was establishing a good bond with his
prospective adoptive parents and the therapist anticipated working with him
only another six months.
Jaiden was described as a happy two-year-old. He was evaluated at the Central Valley
Regional Center and it was determined that he did not require any
services. When Jaiden went to his care
provider, he knew only two sounds. He
easily became frustrated and would throw himself on the ground and have temper
tantrums. Working with Jaiden, the care
provider was able to teach him 30 to 40 different signs and Jaiden was then
able to put two words together. His
frustration ceased and he no longer had temper tantrums.
Between February 2011 and August
2011, mother had 12 scheduled supervised visits. Mother missed three of those visits. Mother seemed appropriate in her interactions
with both children. She hugged and
kissed them and told both boys that she loved them. During a visit in March 2011, Julian yelled
at mother and was very demanding. He
would remain angry through the day after visiting with her. Mother appeared to have a special bond with
Julian, but not with Jaiden.
Mother stopped visiting the children in August 2011 after again
being incarcerated and had not seen the children as of October 2011. During family reunification, father had no
visits with Jaiden, cancelling two scheduled visits in July 2011. Due the mother’s and father’s frequent
incarcerations, the social worker was unable to assess the parents’ bond and
attachment to the children.
The social worker described both children as handsome with outgoing
personalities. Both children were
friendly and loving without any major behavioral or medical concerns. Both children were generally adoptable. The children developed a strong attachment to
their prospective adoptive parents and would benefit from continuing the
parent/child relationship they had established.
The children had been in the prospective adoptive parents’ home since
May 2011 and had both blossomed. The
prospective adoptive parents provided structure and boundaries for the
children. The prospective adoptive
parents wanted both children to explore new environments, participate in
sports, and play with toys that encouraged their autonomy.
On April 30, 2012, mother testified at the termination hearing that
she did not agree with the recommendation that her children be placed for
adoption. Mother described her children
as greeting her with hugs and kisses.
Mother enjoyed playing with her children and would set up the cars they
liked to play with during her visits with them.
Mother loved and missed both children and believed they felt the same
way. When Julian felt “closed off,â€
mother consoled him for five minutes, holding and rocking him on her lap. Mother reassured Julian that she loved them
no matter what.
Mother said that after all of their visits, Julian would ask her
when he was coming home with her.
According to mother, both children expressed their affection for her and
initiated hugs and kisses. Mother
described how she interacted with her children during visits, including how she
played Legos and cars with them. Mother
loved both of her children the same and disagreed with a social worker’s
observation that she showed more affection to Julian than to Jaiden. Mother also disagreed with how the social
worker depicted her interactions with her children during visits.
Mother took her children to parks, Chuck E. Cheese, pizza parlors,
and Redwood City. Mother took Julian
shopping for school supplies and helped him with homework projects and
writing. Mother believed it would be
beneficial to both children to maintain a relationship with her because she
loved them, wanted to be part of their lives, could be a positive parent with
positive influence, and wanted to let them know they did nothing wrong. Mother stated she was going to be a clean and
sober mom and could still be a positive influence on her children even if she
was not the one raising them.
Social worker Leticia Simental testified that she was assigned this
case in September 2011. Simental
observed mother with her children for four hours during two visits in February
2012 and a total of six hours as case manager.
Simental also observed the children in the current care providers’
home. Simental explained that mother
spent more time with Jaiden during her March visit than she did during the
February visits and showed that she was able to structure a visit. Mother played with the children and praised
them.
Simental did believe that mother was more nurturing and loving
toward Julian than toward Jaiden.
Simental described Julian’s relationship with mother as unhealthy because
he wanted to take care of her, worried about her, and would organize play
time. Simental described Julian as
parentified. Simental did not see
parentified behavior from Julian when he was with his prospective adoptive
parents.
The juvenile court noted that father had waived his right to appear
at the hearing. The court found clear
and convincing evidence that it was likely Julian and Jaiden would be
adopted. Regarding the beneficial
relationship exception, the court noted there was conflicting evidence
concerning the nature of mother’s relationship with the children and found
there was a relationship between mother and both children. The court found father’s relationship with
Jaiden to be minimal, even when father was not in custody.
The court stated it had no doubt mother loved her children and that
she was a good mom when she was sober.
The court found, however, there was insufficient evidence to show that a
positive emotional and beneficial relationship between mother and each child
existed so that termination of parental rights would be detrimental to the
children. The court terminated mother’s
and father’s parental rights.
The parents argue that because of
the close relationship mother had with her children, the parental benefit
exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i))
should have been applied in this case because terminating her parental rights
would be detrimental to the children.
The parents maintain mother was involved with both children and that the
juvenile court abused its discretion in failing to apply the beneficial
parent-child relationship exception. The
parents also argue that the trial court applied the wrong legal test in denying
the beneficial relationship exception to adoption based on the best interests
of the children. We disagree.
Appellate courts have interpreted the phrase “benefit from
continuing the relationship†to refer to a parent-child relationship that
promotes the well-being of the child to such an extent as to outweigh the
benefits the child would gain in a permanent home with adoptive parents. Courts balance the strength and quality of
the natural parent-child relationship against the security and sense of
belonging the new family would provide.
If severing the natural parent-child relationship would deprive the
child of a substantial, positive emotional attachment so that the child would
be greatly harmed, only then is the preference for adoption overcome and the
parents’ rights are not terminated. (
953-954 (L.Y.L.);
567, 575.)
To meet the burden of proof for this exception, the parent must show
more than frequent and loving contact or pleasant visits. (L.Y.L.,
supra, 101 Cal.App.4th at pp.
953-954.) The relationship arises from
day-to-day interaction, companionship, and shared experiences. The parent must show he or she occupies a
parental role in the child’s life that results in a significant, positive
emotional attachment from child to parent.
(Id. at p. 954.) We review the juvenile court’s findings
concerning the parental benefit exception under the deferential abuse of
discretion standard.
name="_ftnref6" title="">[5] (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449;
1339, 1351 (Jasmine D.).)
Where the issue on appeal turns on a failure of proof, the question
for a reviewing court is whether the evidence compels a finding in favor of the
appellant as a matter of law. The issue
is whether the appellant’s evidence was uncontradicted, unimpeached, and of
such weight as to leave no room for a judicial determination that it was
insufficient to support a finding. (In
re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re I.W. (2009)
180 Cal.App.4th 1517, 1528 (I.W.).)
We review the record in the light most favorable to the
judgment. (In re Misako R. (1991)
2 Cal.App.4th 538, 545.) When a court
rejects a detriment claim and terminates parental rights, the appellate issue
is whether the juvenile court abused its discretion in so doing. (Jasmine
D., supra, 78 Cal.App.4th at p. 1351.)
To conclude there was an abuse of discretion, the proof offered must be
uncontradicted and unimpeached so that discretion could be exercised in only
one way, compelling a finding in the appellant’s favor as a matter of law. (Roesch
v. De Mota (1944) 24 Cal.2d 563, 570-571; I.W., supra, 180 Cal.App.4th at p. 1528.)
The parents argue that mother had a relapse in January 2011,
remained sober for 15 months, and had a strong positive relationship with both
children, especially with Julian. In
parents’ view, mother’s maintenance of a true parent-child relationship with
her children warranted a finding that termination would be detrimental. The parents rely on their reading of
We are neither factually nor legally persuaded by the parents’ argument.
Neither S.B., nor
a parent’s effort to reunify, coupled with regular, pleasant, and affectionate
visits, compels a finding that termination would be detrimental to the
child. The appellate court, in both
cases, did mention the parent’s effort as evidence of his or her devotion to the
children. (S.B., supra, 164 Cal.App.4th at p. 300; Amber M., supra, 103 Cal.App.4th at p. 690.)
The parent’s effort and devotion, however, was not the linchpin to
either decision. Notably, in both cases,
there was uncontroverted third-party evidence, including expert opinion, of a
strong attachment between the parent and the children and the potential for
harm to the children. (
295-296; Amber M., supra, 103
Cal.App.4th at pp. 689-690.) In this
case, the parents presented no such evidence.
Even in the case of Julian, with whom mother had an attachment, there
was evidence that their relationship was unhealthy and parentified.
Furthermore, Jaiden showed early signs that he was not developing
normal speech and communication skills.
It took the intervention of his caregivers to help Jaiden learn how to
communicate. On appeal, mother places
little importance on her January 2011 relapse.
During the entire fall and early winter of 2010, however, mother was
missing drug tests on a regular basis.
She admitted to social workers that she provided an invalid urine test
with another person’s urine and had been using drugs for months prior to having
a positive drug test in January 2011. In
conducting herself in this manner, mother was not being a proper parent to
either child. Mother had a long history
of drug abuse, drug treatment, and relapse.
Father was completely uninvolved with either child, even when he was not
incarcerated.
As the juvenile court observed, there is little doubt here that
mother loves her children. The
parent-child relationship, however, must arise from day-to-day interaction,
companionship, and shared experiences.
The parent must show he or she occupies a parental role in the child’s
life that results in a significant, positive emotional attachment from child to
parent. We agree with respondent that
mother failed to demonstrate evidence at the hearing that the children would
benefit from maintaining a relationship with her.
Although mother asserts that she was involved with her children’s
lives, her drug addiction dominated her relationship, or absence of a
relationship, with both children in a dependency proceeding that carried on for
Julian for nearly four years. Mother
succeeded in remaining drug free for periods of time, before relapsing again,
and had sporadic, inconsistent contact with her children for extended periods
in 2011 and 2012.
Mother failed to demonstrate at the section 366.26 hearing that she
occupied a true parental role with her children that resulted in a significant,
positive emotional attachment of them to her.
Mother did not show that the juvenile court abused its discretion in
rejecting the application of the parental benefit exception to his case. We reject mother’s contention that the
juvenile court erred in considering the best interests of the children when it
did not find the parental benefit exception to adoption applicable in this
case. The juvenile court did not err in
failing to apply the parental benefit exception to this case or in terminating
parents’ parental rights.
The
court’s orders denying mother’s motion to apply the parent-benefit exception
and terminating the parental rights of mother and father pursuant to Welfare
and Institutions Code section 366.26 are affirmed.
name="_ftn1" title="">* Before Gomes, Acting
P.J., Kane, J., and Detjen, J.
name="_ftn2" title="">[1] All statutory references are to the Welfare and
Institutions Code.
