In re M.T.
Filed 6/19/13 In re M.T. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re M.T. et al., Persons Coming Under the Juvenile Court
Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
J.T. et al.,
Defendants
and Appellants.
E057273
(Super.Ct.Nos.
J235562 & J235563)
OPINION
APPEAL
from the Superior Court
of
Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Lisa
A. Raneri, under appointment by the Court of Appeal, for Defendant and
Appellant J.T.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant
E.T.
Jean-Rene
Basle, County Counsel, Danielle E. Wuchenich, Deputy County Counsel, for
Plaintiff and Respondent.
This
is an appeal by defendants and appellants, J.T. (mother) and E.T. (father),
from the trial court’s order under Welfare and Institutions Code section 366.26
terminating their parental rights to their daughters, C. and M.
terminating their parental rights
because the exception to parental rights termination set out in section 366.26,
subdivision (c)(1)(B)(i), applies in this case.
Mother and father also contend the trial court abused its discretion
when it denied father’s request to continue the section 366.26 hearing so that
he could file a section 388 petition.
We
conclude their claims are meritless.
Therefore, we will affirm the judgment.
The
facts are undisputed.
Human Services filed section 300 petitions in August 2010 with regard to
then five-year-old M. and seven-year-old C. after law enforcement officers
conducted a welfare check after receiving a report that both girls and their
father were asleep in a car in the parking lot of a gas station, and the car’s
engine was running. The officers found
mother passed out in the gas station bathroom.
According to the detention report, the family had been en route from San
Diego to Redlands when they stopped in Encinitas so mother could stretch her
legs and use the bathroom. Mother said
she had taken several prescribed medications, including OxyContin and oxycodone. Father told the officers he had taken two
Vicodin. The officers found 600
prescription pills, all prescribed to mother, in the trunk of the family’s car,
along with three pipes that contained marijuana residue. The interior of the car was littered with
hundreds of cigarette butts, dirty laundry, spoiled food, and other trash. According to the detention report, the stench
of rotten food, feces, and urine was “unbearable.†Because mother and father appeared to be
under the influence of controlled substances, law enforcement officers arrested
them and took the two girls into protective custody.
One
month earlier, San Bernardino County Children and Family Services (CFS)
received a referral after M. was taken by ambulance to a hospital because
mother and father thought she might have ingested some of mother’s
OxyContin. Hospital staff would not
allow mother to leave with M. because mother was so heavily medicated she had
difficulty keeping her eyes open. CFS
could not complete an investigation on the referral because the social worker
was unable to contact mother and father, apparently due to the fact that they
did not have a permanent residence and were living in motel rooms.
The social worker
also reported in the detention hearing report that mother suffered from various
medical conditions, including Sjögren’s Syndrome, which, according to the
social worker, is a genetic condition that affects her tissue, joints, and
endocrine system, and causes her pain for which she is prescribed oxycodone and
OxyContin. A doctor confirmed mother’s
various medical issues, and also provided the social worker with a list of
mother’s prescribed medications.
San Diego County
detained both girls and later found jurisdiction under section 300,
subdivisions (b) and (g), as to both C. and M.
Both girls were ordered placed in foster care. The court also ordered reunification services
for mother and father and weekly monitored visits between mother and father and
the children. In November 2010, San
Bernardino County accepted transfer of the case.
According to the
report prepared for the six-month review hearing in April 2011, a
psycho-educational assessment disclosed that C. is autistic, mildly mentally
retarded, and her verbal capacity was limited.
M. had developmental delays both in gross and fine motor skills. She also had speech difficulties and poor
writing skills, but she was reading at grade level. M. also had behavioral problems. The social worker described her as defiant
and said she had tantrums four times a day, which lasted 15 to 30 minutes. M. would also wake up screaming and
yelling in the middle of the night, but that behavior occurred less frequently
when mother called and spoke with M. before bedtime. M. was diagnosed with intermittent explosive
disorder and mental retardation, severity unspecified. Mother and father were participating in
services and visitation. The court
continued reunifications services, and ordered twice weekly supervised visits,
which the court authorized the social worker to liberalize to unsupervised when
appropriate.
For the 12-month
review hearing in October 2011, the social worker reported that mother and
father had made substantial progress on their reunification plan. Father had a job. The parents had a car and home. A doctor was monitoring their prescription medications. C. and M. had been moved to a new foster home
(their sixth) at the request of the most recent foster parents. Each of the previous homes had been unable to
manage the girls’ behaviors.
The trial court
authorized six additional months of reunification services for mother and
father, and set the 18-month review hearing date. The court also authorized the social worker
to liberalize the frequency and duration of visitation, which could include
unsupervised day and/or overnight visits as appropriate. The trial court also authorized the social
worker to return the children to the parents on family maintenance, if
appropriate.
The social worker
recommended in the 18-month status review report that the children be returned
to mother and father for a two-week trial/extended visit. Both parents were making progress on their
reunification plans, although the social worker expressed concern about
mother’s ability to maintain a clean home, her cigarette smoking, and her
anxiety level.
The parents’ progress
was torpedoed when drug test results for each of them were positive for PCP and
methadone. Both parents denied taking
either substance. When asked to specify
her current medications, mother identified prescription medications that had
not been included in the list her doctor had provided to the social
worker. The social worker commented,
“Although the parents deny taking any unauthorized substances, it does explain
past events reported by the caregiver.
According to the caregiver, the parents are frequently late, the
children are returned smelling heavily of smoke and inappropriately dressed
during rainy/cold weather, mother had appeared sweaty/groggy at times and has
had to cut visits short due to being in pain.
Mom has also been in a minor car accident on the way to visit and was
reportedly lost for hours. Overall, it
appears as if the parents struggle with prescription medication and the
children are at risk in their care.†A
week later, mother paid for a hair follicle drug test, the result of which was
negative for both PCP and methadone.
positive drug test results to file a subsequent report in which it asked the
court to terminate reunification services and set a section 366.26 hearing.
On March 8, 2012,
the trial court continued the 18-month review hearing to May in order to obtain
additional drug test results and for the social worker to evaluate the parents’
home for an extended visit with the children over spring break. The social worker visited the parents’ home
on March 19, 2012. At a nonappearance
review hearing on March 28, 2012, the social worker reported the parents’ home
was filthy, with dirt and caked grime on the floors and furniture. The hot water had been turned off for a
week. There was only one twin bed in the
room the children shared, and there was very little food in the
refrigerator. When the social worker
returned the next day, little had changed except that a dirty coffee table had
been cleaned. Because of the condition
of the home, the social worker decided against the parents having an extended
visit with the children. Instead, until
mother and father could demonstrate their home was safe, the social worker
recommended unsupervised visits of no less than two hours at a location other
than their home.
After mother and
father both tested positive for opiates in April, the social worker submitted
an addendum report again asking the trial court to terminate family
reunification services and set a section 366.26 hearing. At the conclusion of the contested 18-month
review hearing on May 23, 2012, the trial court followed the social worker’s
recommendation and set the section 366.26 hearing.
By the time of the
selection and implementation hearing
on October 3, 2012, M. and C. had been in their foster placement for over
a year, and their foster parents wanted to adopt both girls. Father made a motion to continue the hearing
so that he could file a section 388 petition.
Mother joined in that motion, the details of which we recount
below. The trial court denied the
continuance motion. With respect to the
permanent plan for C. and M., mother and father asserted that the beneficial
parental relationship exception applied and, therefore, the trial court should
not terminate their parental rights.
Instead, mother and father urged the court to select guardianship as the
permanent plan for both C. and M. The
trial court declined the parents’ request and, instead, terminated their
parental rights after making the required findings.
Mother and father
appeal from that order.
Once the court
terminates reunification services, the focus of juvenile dependency proceedings
is on the needs of the child, and specifically on the need for a stable,
permanent home. Therefore, adoption is
the statutorily preferred permanent plan for a dependent child. If the court finds that the child is
adoptable and is reasonably likely to be adopted, the court must terminate
parental rights and order the child placed for adoption unless the court finds
that one of the exceptions set out in section 366.26, subdivision (c),
applies. (§ 366.26, subd. (c);
53.)
Under section 366.26,
subdivision (c)(1)(B), the court may decline to terminate parental rights, even
if it finds the child is adoptable and there is a reasonable likelihood that
the child will be adopted, if the court finds one of several statutorily
specified “compelling reason[s] for determining that termination would be
detrimental to the child.†The
statutorily specified compelling reason, or exception, at issue here is that
“[t]he parents have maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.†(§ 366.36, subd. (c)(1)(B)(i).)
The parents have
the burden of demonstrating that the so-called beneficial parental relationship
exception applies. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) In order to meet that burden, the parents
must demonstrate both that they have maintained regular visitation and contact
with the child and that a continued parent-child relationship would “promote[]
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. . . . 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. (1994) 27 Cal.App.4th 567, 575; see also
and loving contact, an emotional bond with the child, or pleasant visits. . .
. [T]he parent must prove he or she
occupies a parental role in the child’s life . . . . [Citations.]â€
(In re Dakota H. (2005) 132
Cal.App.4th 212, 229.)
“Since the proponent of the exception bears the burden of producing
evidence of the existence of a beneficial parental or sibling relationship,
which is a factual issue, the substantial evidence standard of review is the
appropriate one to apply to this component of the juvenile court’s
determination. Thus . . . a challenge to
a juvenile court’s finding that there is no beneficial relationship amounts to
a contention that the ‘undisputed facts lead to only one conclusion.’ [Citation.]
Unless the undisputed facts established the existence of a beneficial
parental or sibling relationship, a substantial evidence challenge to this
component of the juvenile court’s determination cannot succeed.†(In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
“The same is not true as to the other component of these adoption
exceptions. The other component of both
the parental relationship exception and the sibling relationship exception is
the requirement that the juvenile court find that the existence of that
relationship constitutes a ‘compelling reason for determining that
termination would be detrimental.’ (§
366.26, subd. (c)(1)(B), italics added.)
A juvenile court finding that the relationship is a ‘compelling reason’
for finding detriment to the child is based on the facts but is not
primarily a factual issue. It is,
instead, 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.†(In re
Bailey J., supra, 189 Cal.App.4th
at p. 1315.)
B. Analysis
With respect to the first
requirement, which requires mother and father to show they maintained regular
visitation and contact, mother and father presented substantial evidence to
support a finding in their favor on that requirement. Mother and father maintained regular weekly
contact with C. and M. At one point,
before they had their own car, mother and father spent four hours, twice a week
on a bus in order to visit with the children.
Although mother acknowledged in her testimony at the selection and
implementation hearing that she had missed three visits since the trial court
terminated reunification, her visitation and contact with C. and M.
nevertheless was regular. The social worker
stated as much in her report for the section 366.26 hearing—“Throughout the
life of this case, the children have had weekly contact with their parents
through supervised visits, including unsupervised and overnights at one
time. During this reporting period,
[father] has been unable to attend several visits due to his work schedule, but
attends when he can. The paternal
grandmother who resides with the parents has attended one or two visits during
the reporting period as well. During the
visits, the mother usually brings an arts and crafts project to work on, such
as jewelry making, drawing, or clay.â€
The trial court,
in adopting county counsel’s assertion that the parents had not maintained
regular contact and, therefore, had not met the first requirement of the
exception, apparently interpreted the phrase to require proof that the parents
had never missed a visit. The statute
does not require a perfect record of visitation; it requires regular visitation
and contact. Mother and father met their
burden of presenting evidence to demonstrate they had regularly visited and
maintained contact with C. and M. during the course of the dependency.
The second factor,
the existence of a beneficial relationship, requires evidence regarding “(1)
the age of the child, (2) the portion of the child’s life spent in the parent’s
custody, (3) the positive or negative effect of interaction between the parent
and the child, and (4) the child’s particular needs.’ [Citation.]
‘[F]or the exception to apply, the emotional attachment between the
child and parent must be that of parent and child rather than one of being a
friendly visitor or friendly nonparent relative, such as an aunt.’ [Citation.]â€
(In re Jason J. (2009) 175
Cal.App.4th 922, 937-938.) “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; see also In re
S.B., supra, 164 Cal.App.4th at
p. 297.)
Although a close
case, we cannot say the evidence in this case compels a finding in favor of
mother and father. C. was seven years
old and M. was five when they were removed from the custody of mother and
father. At the time of the selection and
implementation hearing, the girls were eight and five years old,
respectively. They had been in five
different foster placements before being placed with their prospective adoptive
family in July 2011. As a result, mother
and father were the only parental figures in the girls’ lives for all but one
year. The social worker and foster
mother both confirmed that C. and M. were bonded with their parents. Moreover, mother and father had unsupervised
overnight visits with the girls over the course of the dependency. During those unsupervised visits, mother and
father necessarily performed their duties as parents to the girls. The social worker effectively said as much
when she reported that C. and M. were in good condition when returned to
foster care, and there were no reports of inappropriate behavior.
As previously
noted, C. and M. both have special needs.
Because mother suspected C. was autistic, she had requested an
individual education program (IEP) for the child when C. entered
kindergarten. Mother and father both
participated in C.’s IEP and cooperated in having C. evaluated for Inland
Regional Center services. As noted
above, M. was diagnosed with intermittent explosive disorder and mental
retardation of unspecified severity.
During the course of the dependency process, M. was also diagnosed with
attention deficit hyperactive disorder.
Mother and father
presented evidence to show that C. and M. were bonded with their parents. Both girls related to their mother and father
as parents. Apart from the circumstances
leading to the dependency, mother and father engaged in appropriate interaction
with both girls. Mother testified at the
selection and implementation hearing that at the start of their visits, both
girls would run and jump into her arms, and then they would spend the visit
sitting on mother’s lap in order to be as close to her as possible. Mother brought pictures the girls had drawn
to the hearing, which she said reflected their feelings about their parents and
their sadness over the possibility that they would not see each other
again. In one of the pictures, M. drew a
heart and explained to mother that her heart was broken because she was not
with mommy and daddy.
The social worker
testified that the girls were bonded with their parents and the caregivers
equally. The social worker acknowledged,
however, given the strength of the relationship between the children and their
parents, that to a “certain extent†it would benefit the children to continue
the relationship, “[a]nd that is why I have been pressing the caregivers to
maintain a relationship with the birth parents.†The social worker also acknowledged that her
predecessor had discussed and considered guardianship, “but she felt adoption was
in the best interest of the children and provided them permanency.†When asked whether all the things she had
just mentioned could be provided to the children under a guardianship, the
social worker did not disagree, and said, “Possibly.â€
In arguing that
the evidence supports the court’s finding in this case, county counsel cites
only the circumstances that led to termination of reunification services. Those circumstances are not in dispute, and
they are not relevant to the question of whether the children had a
substantial, positive emotional attachment such that they would benefit from
continuing their relationship with mother and father. After the witnesses had testified, the court
asked the social worker to bring the children to court so that their attorney
could make it clear to them, to the extent possible, that they would not see
their parents again if the court ordered adoption as the permanent plan. After talking with M., the more “verbal
child,†the attorney for the children reported that M. said, “‘I have a happy
life where I am with the family I’m with right now, and that’s where I want to
stay. And I like it there.’†When asked how she would feel if she could not
see her mother or father again, M. said, “‘Sometimes sad, but not all the time.’†M. also reportedly said that she wanted to be
adopted.
The above noted evidence is
sufficient to establish the existence of a beneficial relationship between the
children and their parents. Therefore,
the remaining issue we must address is whether it was an abuse of the trial
court’s discretion to find that the benefit the children derived from their
relationships with mother and father was not a “compelling reason for
determining that termination would be detrimental.†(§ 366.26, subd. (c)(1)(B), italics
added.) In other words, we must
determine whether the court abused its discretion when it determined the importance of the relationship, in
terms of the detrimental impact its severance would be expected to have on C.
and M., was outweighed by the benefit to C. and M. of adoption.
Although a very close case,
we cannot say the court abused its discretion in this case when it determined
that the benefit of adoption outweighed the detrimental impact on C. and M. of
severing their relationship with mother and father. M.’s statement, quoted above, that she would
sometimes feel sad, but not all the time, if she could not see her parents,
best states the impact of severing her relationship with mother and father. We do not minimize the emotional impact on
both the children and the parents of ending a significant relationship and
emotional bond. But we cannot say that
either C. or M. would be greatly harmed by severing the relationship. Therefore, the court did not abuse its
discretion in this case, when the benefit of continuing that relationship is
weighed against the benefit of a permanent adoptive family.
Father and mother contend
the trial court abused its discretion when it denied father’s motion to
continue the section 366.26 hearing.
Father’s attorney made that motion at the start of the selection and
implementation hearing, on the ground that father and mother were, that day,
moving into “a new stable residence,†an event that arguably constituted a
change of circumstance. Father asked his
attorney to file a section 388 motion.
To that end, father’s attorney asked the trial court to continue the
contested section 366.26 hearing so that he could gather the necessary
documents from father and file the requested motion.
As father acknowledges, a
continuance will only be granted upon a showing of good cause. (§ 352, subd. (a).) He and mother both contend the need to file a
section 388 petition is good cause that warrants a continuance of the section
366.26 hearing. We disagree.
As discussed previously,
once the court terminates reunification services, the needs of the children for
permanence and stability are the focus of the dependency. The ability of the parents to reunify
with the children is no longer a primary concern. Moreover, the issues that ultimately prompted
the court to terminate reunification services in this case were the excessive
use of prescribed medications and the condition of the parents’ home, not the
absence of a home. Thus, the fact that mother and father were about to move
into a new home really was not a change in circumstance that would warrant
modification of the order setting the selection and implementation hearing.
Accordingly, we conclude the
trial court did not abuse its discretion in denying the parents’ continuance
request because they failed to establish good cause to support a continuance.
The order terminating the
parental rights of mother and father as to C. and M. is affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] Apparently, the parents sold their car to pay
for mother’s hair follicle drug test and did not have enough money to have
father tested.
