Filed 10/6/17 In re Carter S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Mary Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Sarah Carrillo, County Counsel, and Cody M. Nesper, Deputy County Counsel, for Plaintiff and Respondent.

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Jaclyn S. (mother) appeals from the juvenile court’s order terminating her parental rights over her child, Carter S., under Welfare and Institutions Code section 366.26.[1] She argues the juvenile court erred when it found the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) did not apply. We reject mother’s claim and affirm.

FACTUAL AND PROCEDURAL HISTORY

Background

Carter S. first came to the attention of the Tuolumne County Department of Social Services (department) immediately after his birth in October of 2012. A referral received from the hospital indicated concerns about mother’s parenting ability due to her developmental delays, history of depression and previous hospitalizations, allegations of marijuana use during pregnancy, and concerns about the condition of mother’s home. Following an investigation, the “Differential Response program” worked with mother, particularly regarding the condition of her home.

Detention

In July of 2015, the department received a report that then two-year-old Carter wandered daily from his home, which resulted in the entire neighborhood having to look for him. On July 30, 2015, the family and neighbors looked for Carter for 45 minutes before calling law enforcement. Carter turned up 15 minutes after law enforcement arrived and both mother and grandmother “verbally assaulted” the child by screaming profanities at him. In response, Carter became visibly upset and distressed.

Two social workers arrived to investigate on August 4, 2015, and found the home surrounded by large piles of trash, broken toys, tools, and broken appliances and furniture. Mother came outside with Carter, who was not wearing shoes. One social worker expressed concern that the outside of the house was not safe for Carter to be wandering around without shoes. Carter, however, wandered away and mother did not notice, causing one of the social workers to retrieve him. Carter was non-verbal, grunting and pointing to communicate, and he was eating rocks and dirt. Mother said Carter could say “mom” and knew his colors, but she had not taken him to a doctor to address his obvious speech delay.

Inside the home was a strong smell of cat urine. The floor was covered with trash, broken toys, dirty laundry, and various other “unidentifiable” objects. The kitchen had rotting food, empty containers, and dirty and moldy cooking utensils covering the counters. Exposed subflooring throughout the house was dirty and splintered. Cigarette butts littered the floor and there were multiple cat litter boxes within Carter’s reach. In the bedroom mother shared with Carter, dirty diapers covered the dresser.

Mother alleged she cleaned the house daily, but that Carter “messes” it up. She reported the house became unmanageable in the last few months when she had been experiencing symptoms of depression. Although she had been taking Zoloft, she stopped about a month ago.

Carter was taken into protective custody, and the department filed a section 300 petition on August 6, 2015, alleging the condition of the home, mother’s mental health issues, and her failure to properly supervise and protect Carter, placed him at risk of harm Father’s whereabouts were alleged to be unknown.

Mother submitted on the detention report and Carter was detained August 7, 2015.

Jurisdiction

At jurisdiction September 22, 2015, mother waived her right to a hearing and submitted on the jurisdiction report. The juvenile court found the allegations of the petition true. Disposition was set for October 6, 2015.

Disposition

The report filed in anticipation of disposition recommended services for mother and denial of services for the alleged father. Recommended services included general counseling, a psychiatric/psychological evaluation and treatment, home cleanliness education, parenting education, and substance abuse testing.

The report stated that, since detention, Carter had been in four placements. Moves were caused primarily due to behavior issues, which included “extreme” tantrums in which he would throw himself, scream uncontrollably, kick adults and bang his head on the floor to the point of bruising. At almost three years old, he was completely non-verbal. He appeared to understand what adults were saying to him, but responded with grunts and pointing. He was referred to the Regional Center for evaluation.

Carter’s most recent placement was with a relative, although he would likely need to move again due to “unforeseen circumstances.”

Mother visited Carter and came prepared with snacks and activities. Her interactions with Carter were positive. But she did not encourage him to speak or help him with sounding out words. During one visit in mid-September, Carter appeared fearful and apprehensive of mother and ran from her to the visit supervisor.

At the disposition hearing October 6, 2015, the juvenile court discussed Carter’s lack of verbal skills with mother and encouraged her to have him speak during visits. Mother submitted on the report and recommendations. The six-month review hearing was set for March 22, 2015.

Six-Month Review

The report prepared for the six-month review recommended mother receive an additional six months of services. The condition of mother’s home, which was actually maternal grandmother’s home shared with mother, had improved, then fallen back and was again slowly improving. Both structural and sanitation issues continued. Mother herself had serious hygiene issues. She was slow to begin services and did not begin counseling and parenting classes in earnest until January of 2016. Mother’s counselor indicated her cognitive ability might impact her treatment.

Mother was diagnosed with a major depressive disorder, an attention deficit hyperactivity disorder, adjustment disorder with anxiety and borderline intellectual functioning.

Carter had an individual education program (IEP) evaluation by the school district and found to be a “bright boy, who doesn’t speak.” He was slated to begin a main stream Head Start program. During transportation to the IEP evaluation, mother expressed her concern that Carter was pulling away from her and bonding with his foster mother.

Carter, who was removed from relative placement to a new foster home, was now doing well without the challenging behavior issues. He was becoming more comfortable using his voice, he enjoyed playing with a wide variety of toys, learning games and humming music.

Mother visited Carter three times weekly, bringing snacks and age appropriate toys. But she only occasionally encouraged him to speak and was often uncertain as to what to do if he became upset. Carter willingly interacted with both mother and the visit supervisor. The assessment tool used to determine quality of the visits found them to be “adequate.”

On March 22, 2016, mother was granted an additional six months of services, and a 12-month review set for September 6, 2016.

Twelve-Month Review

The report prepared in anticipation of the 12-month review hearing recommended termination of services and that a section 366.26 hearing be set to determine a permanent plan for Carter. The condition of mother’s home continued to be in flux. Improvements were noted in April of 2016, but by July of that year, the home was again unsanitary with rotten food on the floor, no space for food preparation, and a strong odor. Mother also continued to have personal hygiene issues and was unable to recognize the problem or articulate a hygiene plan.

In June of 2016, mother reported that she wanted to move to the Central Valley, specifically Turlock, and she was provided information regarding services in that area. In August, she temporarily moved in with a friend in Merced, but was trying to access services in Stanislaus County.

Carter continued to thrive in foster care. The family was willing to provide permanence if reunification failed.

Mother attended parenting classes regularly since January of 2016, but had “difficulty remaining engaged both physically and mentally,” at times falling asleep during class. Mother was taking psychotropic medication and attended a second psychological evaluation, in which the evaluator noted the following:

“Despite acknowledging a high level of stress in her life, [mother] does not see the need for major changes in her life. She endorsed feeling generally satisfied with herself and sees little need for change. It is possible that she views the majority of stress in her life as related to others’ doing. As such, [mother] may have little motivation or awareness for the need to change her own behaviors or engage in psychological treatment.”

Mother’s counselor reported in July of 2016, that mother continued to deny depressive symptoms or impairments, thus causing a barrier to continued participation in behavioral health services.

Mother continued to visit regularly. The visits were changed from three times a week to two longer visits per week to accommodate her schedule and pending transition to Turlock. She continued to bring appropriate snacks, but still rarely encouraged Carter to speak. Her behavior during several visits in May of 2016 were of concern. During one visit, she was unable to control Carter, yelled at him and forcibly placed him on a park bench, all the while blaming it on the foster home. At another visit, she became upset when the caregiver showed up at the park. Mother began to audibly swear to herself, complaining that the caregiver was trying to spy on her. When mother moved the visit to the library, mother’s behavior continued and she became impatient with Carter. When the social worker subsequently discussed concerns about the previous visits, mother became upset, raised her voice, became angry and cried. A structured decision making tool utilized to assess the visitation measured the visits as “not acceptable” and “limited” in quality.

At the 12-month review hearing scheduled for September 6, 2016, father appeared for the first time and the matter was continued to September 20, 2016.

At the September 20, 2016 hearing, mother submitted on the social worker’s report, with a request that visitation not be reduced to once per month as recommended. Mother’s counsel stated mother had moved to the Central Valley. The juvenile court followed the recommendations of the department, found mother had not made significant progress, terminated services and reduced visits to once per month. A section 366.26 hearing was set for January 10, 2017. Writ advisements were given.

Notice of Intent to File Writ Petition

Mother subsequently filed an untimely notice of intent to file writ petition, which was dismissed by this court on October 19, 2016.

Section 366.36 Selection and Implementation

The section 366.26 report recommend termination of parent rights and adoption ordered as the permanent plan. The report stated an adoption assessment found Carter likely to be adopted, and a preliminary evaluation of the current caretakers found them suitable and committed to adoption. Carter was thriving in his current placement and the family was committed to caring for his special needs long term.

The report stated the department received a relative placement request on September 7, 2016, from mother’s cousin and his significant other. The home evaluation had been conducted and approved by the licensing department. However, these relatives did not have a relationship with Carter and had visited him only once since his removal from mother.

Mother requested a contested section 366.26 hearing, which was set for February 16, 2017. The department stated it would file an addendum report prior to the next hearing regarding the issue of relative placement.

The February 16, 2017, addendum report stated mother’s cousin’s motivation for seeking placement of Carter was to keep him in the family. Although the cousin acknowledged he did not have a close relationship with Carter, he was willing to adopt him. He had first seen Carter at his fourth birthday party in October of 2016. He had had one additional visit with Carter at the end of January of 2017. The department recommended the placement request be denied because it was not in Carter’s best interests (§ 361.3, subd. (a)(1)) and there was a lack of relationship between Carter and the relative (§ 361.3, subd. (a)(6)). Carter had been placed with his current caretakers since October of 2015 and was thriving. Although he had special needs, this family had demonstrated their ability and commitment to meeting those special needs.

At the contested hearing February 16, 2017, mother’s counsel called a social worker, who testified that mother visited regularly as allowed. Although the social worker had not personally observed the visits, she had read the reports. The social worker testified that she had not seen mother interact with Carter, nor did she have any information about whether or not they were attached to each other.

On cross-examination, the social worker acknowledged that, according to the report, mother got “very frustrated” at one visit because Carter would emphatically say “no.” In response, she raised her voice and had an “angry mean facial expression,” causing bystanders to stare.

Mother testified that she was now back from Turlock and wanted to “go back to parenting classes.” Mother testified she was staying with a friend who was helping her get a job and “a place.” Mother thought her relationship with Carter was beneficial because “he needs to be with his mother instead of with strangers.” When asked why she thought it would be harmful for Carter to be adopted, she said she would rather have Carter back with her.

The alleged father was present and testified he had not been a part of Carter’s life for at least the first two years and last saw him when mother had him for a visit and she walked Carter in front of the car father was seated in. Father had not yet been able to acquire “parental proof” of Carter, stating he was “in the process of trying to get myself situated and my feet planted before I take on the adventure any farther than I can.”

The juvenile court found by clear and convincing evidence that Carter was adoptable. The juvenile court found mother had not demonstrated by a preponderance of the evidence that continuing her relationship with Carter would outweigh the benefits he would receive by adoption. The juvenile court terminated parental rights as to both mother and father. The juvenile court further denied the request for relative placement, finding it would not be in Carter’s best interest to pursue a family placement at this point due to the lack of relationship between Carter and the relative family.

DISCUSSION

Mother does not dispute that Carter was adoptable. Instead, she argues her parental rights were wrongly terminated because the juvenile court failed to apply the parent-child beneficial relationship exception to adoption and grant legal guardianship or long-term foster care instead. We disagree.

Beneficial Parent-Child Exception to Adoption

After reunification services are terminated, “‘the focus shifts to the needs of the child for permanency and stability.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) A hearing under section 366.26 is held to design and implement a permanent plan for the child. At a section 366.26 hearing, once the juvenile court finds by clear and convincing evidence that the child is likely to be adopted within a reasonable time, the court is required to terminate parental rights and select adoption as the permanent plan, unless the parent shows that termination of parental rights would be detrimental to the child under one of several statutory exceptions. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) One of these statutory exceptions is the beneficial parent-child relationship exception to adoption, which applies when it would be detrimental to the child to terminate parental rights if “[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 burden is on the party seeking to establish the beneficial relationship exception to produce evidence establishing the exception is applicable. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) Once the juvenile court finds that a parent has met his or her burden to establish the requirements of the beneficial relationship exception, the juvenile court must choose a permanent plan other than adoption if it finds the beneficial relationship to be “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, at p. 1315.)

Standard of Review

We acknowledge the parties’ discussion in their respective briefing regarding the split of authority as to whether the substantial evidence standard, the abuse of discretion standard, or a hybrid standard applies in reviewing the juvenile court’s rejection of exceptions to adoption. (See Bailey J., supra, 189 Cal.App.4th at pp. 1314-1315 and In re K.P. (2012) 203 Cal.App.4th 614, 621-622 [hybrid combination of substantial evidence and abuse of discretion standards; applying substantial evidence test to determination of existence of a beneficial sibling relationship and the abuse of discretion test to issue of whether that relationship constitutes a compelling reason for determining termination would be detrimental to the child]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [substantial evidence test: “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order”]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [abuse of discretion test] (Jasmine D.).)

Under any of these standards of review, our conclusion in this case would be the same because the practical differences between them are “not significant,” as they all give deference to the juvenile court’s judgment. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.) “‘[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 under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.’.…”’” (Ibid.) Similarly, a substantial evidence challenge to the juvenile court’s failure to find a beneficial parent-child relationship cannot succeed unless the undisputed facts establish the existence of that relationship, since such a challenge amounts to a contention the “undisputed facts lead to only one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529; see Bailey J., supra, 189 Cal.App.4th at p. 1314.)

Applicable Law and Analysis

In deciding whether the beneficial parent-child relationship exception applies, “the court balances the strength and quality of the natural parent/relationship in a tenuous placement against the security and the sense of belonging a new family would confer.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “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.” (Ibid.) The parent-child relationship must “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.” (Ibid.)

A parent claiming the applicability of the parent-child relationship exception has the burden of proof. (In re C.B. (2010) 190 Cal.App.4th 102, 133.) “t is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” ([i]Jasmine D., supra, 78 Cal.App.4th at p. 1350; see Celine R., supra, 31 Cal.4th at p. 53.)

The parent-child relationship exception “does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Jasmine D., supra, 78 Cal.App.4th at p. 1348.) “[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent.” (Id. at p. 1350.) Even a “loving and happy relationship” with a parent does not necessarily establish the statutory exception. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)

“The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of the exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child’s need for a stable and permanent home that would come with adoption.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) “[T]he Autumn H. language, while setting the hurdle high, does not set an impossible standard nor mandate day-to-day contact.” (Ibid.) “Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite the lack of day-to-day contact and interaction.” (Ibid.)

The department does not dispute that mother maintained regular visitation with Carter. But in order to demonstrate Carter would benefit from a continued relationship with her, mother needed to demonstrate that maintaining the parent-child relationship would promote Carter’s well-being, outweighing the emotional benefits he would gain in a permanent home with adoptive parents. (Autumn H., supra, 27 Cal.App.4th at p. 575.) In determining whether the relationship between parent and child is beneficial, we look to such factors as “(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.” (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) The juvenile court’s conclusion that mother did not satisfy the second prong of the exception “turns on a failure of proof at trial, [such that] the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.)

Mother’s interactions with Carter were generally positive, but during the final six months of service, as Carter got older, mother’s visits began to deteriorate in quality. Mother, at times, became visibly frustrated when Carter did not immediately respond the way she wished him to. Her behavior then escalated to yelling and swearing, behavior that had been of concern prior to intervention. The department labeled these visits as “not acceptable” and “limited” in quality. The department also consistently noted mother’s failure to encourage Carter to speak. Mother does not dispute these reports, but notes that, in the context of the many regular visits she had throughout dependency, “the fact of some visits becoming emotionally charged does not change any character of the love and deep affection” between mother and Carter. She also argues that, although she may not have encouraged Carter to speak, she was responsive to his verbal and nonverbal cues.

Mother points to the fact that Carter was in her primary care “for his first critical two years of life,” that her love for Carter was deep, and that this love contributed to Carter’s attachment to her, as evidenced, in part, by the fact that he called her “mama.” Mother notes that she brought snacks and activities to visits with Carter, and cake and balloons on his birthday. However, frequent and loving contact with a child does not necessarily establish the existence of a benefit for continuing the parent-child relationship. (Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Mother must also demonstrate she occupies “‘a parental role’” in Carter’s life, which she failed to do. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)

Mother argues at length that her deep continuing love for Carter “was worthy of protecting with a less permanent plan” than adoption. She argues that Carter’s “healthy emotional growth and well-being” were best served by having both his current caretakers and mother in his life. While mother was not asking that Carter be returned to her custody, but instead that a legal guardianship or long-term foster care would give her a better chance of continuing her relationship with Carter, the Legislature has decreed that guardianship is not in the best interests of a child who cannot be returned to his parents. Instead, a child such as Carter can be afforded the best possible opportunity to get on with the task of growing up by being placed in the most permanent and secure alternative that can be afforded him. In decreeing adoption to be the preferred permanent plan, the Legislature recognized that, “‘Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.’ [Citation.]” (Beatrice M., supra, 29 Cal.App.4th at p. 1419.)

The juvenile court’s conclusion that severing the parent-child relationship in this situation would not deprive Carter of a substantial, positive emotional relationship such that he would be greatly harmed did not exceed the bounds of reason. (Autumn H., supra, 27 Cal.App.4th at p. 575; In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Mother has failed to demonstrate that Carter was attached or bonded to her in such a way that he would suffer detriment as a result of terminating her parental rights. Accordingly, we find the juvenile court did not err in rejecting the beneficial parent-child exception to adoption.

DISPOSITION

The orders of the juvenile court are affirmed.