In re N.P.

 

 

 

 

 

 

 

 

 

Filed 5/2/13  In
re N.P. CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sacramento)

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>

In re N.P. et al., Persons Coming Under the Juvenile Court Law.
SACRAMENTO DEPARTMENT OF HEALTH AND HUMAN SERVICES,                           Plaintiff and Respondent,               v.   L.D. et al.,                           Defendants and Appellants.	C072478   (Super. Ct. Nos. JD231278, JD231277)

 

 

 

            Mother,
Heather B., appeals the termination of her parental
rights to her son and daughter.href="#_ftn1" name="_ftnref1" title="">[1]  Mother contends the juvenile
court erred in finding the beneficial parental relationship exception to
adoption did not apply.  We find no error
and affirm.

BACKGROUND

            In
2010, mother gave birth to daughter who tested positive for amphetamines.  Mother admitted to using methamphetamine,
crank, uppers, diet pills and speed in the past.  She also admitted using methamphetamine
during her pregnancy.  As part of an
informal supervision agreement, mother agreed to participate in substance abuse
treatment and parenting education. 
During the voluntary supervision period, mother tested positive for
drugs and failed to attend drug treatment. 
In January 2011, the children were temporarily placed with their great
uncle due to mother’s drug use. 

            The
Sacramento County Department of Health and Human Services (the Department)
filed petitions under Welfare and Institutions Code section 300, subdivision
(b),href="#_ftn2" name="_ftnref2"
title="">[2] alleging mother had a substance abuse problem dating back to at
least 2006 from which she had not rehabilitated; mother continued to use drugs;
mother used methamphetamine during the gestation of both children; and, despite
her agreement to participate in informal supervision services, mother continued
to use drugs and refused treatment.  In
April 2011, the court found the allegations true and declared the children
dependents.  Son, almost five, and
daughter, almost nine months old, were placed together in a foster home.  Reunification services and regular visitation
were ordered for mother.  No
reunification services were offered to son’s father or daughter’s alleged
father. 

            The
children were engaging, social and developing well.  There were some concerns about son’s
bedwetting and speech delays, but overall both children were developmentally on
target.  Son had had some problems with
temper tantrums which resolved in the foster home. 

            As
of July 2011, mother completed residential
treatment and moved into transitional housing.  The children had weekend overnight visits
with mother beginning in September 2011. 
Daughter was excited to see mother. 
Son also looked forward to seeing her, greeting her with hugs and
kisses.  Son separated easily, but
counted down the days between visits. 
Although mother had made strides in her recovery, the Department was
concerned about her dishonesty about where she was visiting with the children.  Nonetheless, mother had a strong bond with
the children and consistently maintained contact with the foster family about
the children.  During visits, she
appeared very connected with the children. 
Housing was mother’s primary obstacle to reunification.  An additional six months of reunification services
were ordered for mother, with the goal of placing the children with her once
she obtained suitable housing.  On October 18, 2011, mother found suitable housing and the children were placed with
her with continued supervision. 

            The
Department filed section 387 supplemental petitions on January 24, 2012.  Between October 2011 and
January 2012 mother repeatedly left the children with risky caretakers who had
engaged in domestic violence in front of the children, despite being told not
to leave the children in those circumstances and being provided with an
alternate safety plan.  The violence
included the maternal aunt, Brandy, slicing her boyfriend, Allen, with a knife
over the eyebrow and the boyfriend breaking a window out of the apartment while
the children were present.  Allen was on
parole for drug related charges and domestic violence charges.  There was also a restraining order in place
against him.  Mother had agreed not to
leave the children with Brandy or allow any contact with Allen, but she
repeatedly failed to comply with this agreement which put the children at
substantial risk of harm.  The children
were again removed from mother.  Upon
being confronted about these allegations, mother adamantly denied them.  She lied about Allen living in the house,
lied about daughter’s alleged father visiting at the house and lied about being
pregnant. 

            The
social worker reported mother had a bond with her children and a desire to
learn to be a better parent.  However,
mother had little actual protective capacity as a parent and continued to allow
risky people to be around the children. 
Mother also regularly lied and failed to follow safety plans. 

            The
children were doing well in their foster home, although son continued to have
some bedwetting problems.  They had
supervised visits with their mother twice a week.  The children did not cry when leaving mother
and son would ask when they were going home to the foster home.  But, son also stated he loved his mother and
missed her. 

            Supervised
visitation continued twice a week.  At
one visit, daughter had an uncontrollable tantrum and mother was unable to calm
her.  The social worker took daughter to
foster mother and foster mother was able to calm daughter immediately.  Son would ask what days his visits with mom
were, but otherwise did not ask about her. 
Both children left the visits and mother easily, although daughter was
sometimes more emotional and prone to tantrums after a visit. 

            The
Department concluded mother had failed to benefit from services, lacked insight
into her situation and continued to risk her children’s safety by placing them
in harmful situations.  Mother continued
to have problems “related to codependency and dishonesty to the point of not
protecting her children.”  There were no
further services the Department could offer, so the Department recommended her
services be terminated and a permanent plan of adoption ordered. 

            In
April 2012, the court found the allegations in the section 387 petitions
true.  The court also found reasonable
reunification services had been provided. 
Because it was unlikely mother would benefit from further services, the
court terminated services.  The matter
was set for a section 366.26 hearing. 

            With
reunification services terminated, visits were reduced from twice a week to
once a week in June, then twice a month in July.  Mother remained consistent with her
visits.  Visits were appropriate,
although son tended to speak to mother as though he were the parent.  He gave her orders and did not heed what she
told him.  After visits, son had
difficulty transitioning back into his routine and would take a few hours to a
few days to return to his normal self. 
Therapy was scheduled to take place after the visits and this was
helpful to son. 

            At
the time of the section 366.26 hearing, the children had been living in a
prospective adoptive home for about six weeks. 
The adoptions social worker, Pascale Buzbee, concluded both children
were adoptable.  The children were both
healthy, developing well, relatively young and had shown an ability to adjust
well in placements.  Buzbee had found a
few prospective adoptive homes which would have been a good fit for the
children.  Son was doing very well since
being placed in the prospective adoptive home, and the stable environment it
represented.  Since the placement, he had
not had any problems in school or any behavioral problems.  He interacted comfortably with his
prospective adoptive parents.  Son had
reported being anxious seeing his mother at his school when she would pick up
his cousins.  He was also anxious not
knowing whether he would be returned to mother. 
In therapy, son also expressed anger toward mother.  He liked his prospective adoptive family and
appeared relieved at the prospect of being adopted.  Buzbee had explained the concept of adoption
to son.  He appeared to understand it and
was “fine with a plan of adoption.” 

            Buzbee
acknowledged mother’s contact with the children had been consistent.  But, daughter was not excited to visit mother
nor was she upset at the end of visits. 
Son had a close emotional bond with his mother and would be impacted by
a termination of parental rights, but Buzbee believed the benefits of a
permanent and stable home would outweigh any detriment to him of terminating
the parental relationship. 

            Mother
testified at the section 366.26 hearing. 
She reported during visits she played and talked with the children and
they were excited to see her.  She
estimated she had provided care for daughter for less than one-half of her
life, nine months.  Son seemed a little
sad to leave visits but daughter would get distracted.  She believed her parental rights should not
be terminated because the children are bonded with her and severing the
parental relationship is generally not healthy for children.  She acknowledged she had made mistakes but
claimed she had learned from them, and had done what she could. 

            The
juvenile court found the children were likely to be adopted.  The court also found termination of parental
rights would not be detrimental to the children.  “Other than the mother’s testimony regarding
the children recognizing her as their mother and being happy to see her on
visits, that she feels connected to them as her children, and that the social
worker felt there is an emotional bond, which is unsubstantiated by any factual
description, the Court really heard little evidence of detriment to the
children of terminating parental rights.” 
The court noted son was only four and a half years old when he was first
removed from mother and, since then, mother had really been only a visitor in
his life.  Daughter was only six months
old when she was first removed.  The
juvenile court ordered adoption as the permanent plan and parental rights were
terminated. 

DISCUSSION

            Adoption
must be selected as the permanent plan for adoptable children and parental
rights must be terminated unless “[t]he court finds a compelling reason for
determining that termination would be detrimental to the child” due to an
enumerated exception to adoption.  (§
366.26, subd. (c)(1)(B).)  One such
exception to termination of parental rights is if “[t]he parents have
maintained regular visitation and contact with the child[ren] and the
child[ren] would benefit from continuing the relationship.”  (§ 366.26, subd. (c)(1)(B)(i); >In re Celine R. (2003) 31 Cal.4th 45,
53.)  Mother contends the trial court
erred in not finding the beneficial parental relationship exception to adoption
applied.href="#_ftn3" name="_ftnref3"
title="">[3]  We disagree. 

            It
is mother’s burden to establish the beneficial relationship exception to
adoption applies.  (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.)  Mother satisfied the first prong of the
exception in that she maintained regular visitation and contact with the
children.  However, she did not meet the
burden of establishing that she and the children shared a beneficial
parent/child relationship such that termination of that relationship would be
detrimental to the children.

            A
beneficial relationship is one that “promotes the well-being of the child[ren]
to such a degree as to outweigh the well-being the child[ren] would gain in a
permanent home with new, adoptive parents.” 
(In re Autumn H. (1994) 27
Cal.App.4th 567, 575.)  The existence of
a beneficial relationship is determined by considering a number of factors,
including the age of the children, the amount of time the children spent in the
parent’s custody, the positive or negative effect of interaction between the
parent and the children, and the children’s particular needs.  (In re
Amber M. (2002) 103 Cal.App.4th 681, 689.) 
However, neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523) nor the derivation
of some benefit from continued parental contact (In re Angel B. (2002) 97 Cal.App.4th 454, 466) is enough to
establish this exception.

            Here,
the children were initially removed from mother in January 2011.  Daughter was about six months old and son was
four and a half years old.  Over the
course of 20 months of dependency proceedings, the children lived with mother
for only three months.  During those
three months, they were exposed to extreme domestic violence and left with  risky caretakers.  Mother repeatedly failed to protect them,
lied to the Department and did not avail herself of resources or established
safety plans.  Daughter showed little
evidence of a significant bond with mother, having lived less than half of her
short life with mother.  Son had a bond
with mother; however, he was also angry with and upset by mother.  During visits he behaved toward her as if he
were the parent.  He issued orders and
did not pay attention to her.  Until
beginning therapy, after visits with mother, his behavior would deteriorate and
he had trouble getting back into his normal routine.  Seeing mother at his school and the
uncertainty of his living situation caused him anxiety.  He was relieved when discussing being adopted
and gaining permanence and stability. 
Son liked his prospective adoptive parents and his behavior improved
upon moving in with them and gaining the stability of their household.  Other than mother’s generalized claim that
severing a parental relationship is not healthy for children, mother offered no
evidence that terminating parental rights would be detrimental to the children.  Given all the evidence, the court did not err
in finding that the beneficial relationship exception did not apply to the
termination of parental rights.

DISPOSITION

            The
orders of the juvenile court are affirmed.

 

 

                                                                       NICHOLSON      , Acting P. J.

 

We
concur:

 

 

          BUTZ           , J.

 

 

          MAURO      , J.