In
re M.T.















Filed 6/25/12 In re M.T. CA6













NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT




>

In re M.T., et al., Persons Coming Under the Juvenile Court Law	H037575 (Santa Cruz County Super. Ct. Nos. DP002282, DP001744)
SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. S.T., et al., Defendants and Appellants.

Shannon T. is the
biological mother of three-year-old Aaron T. and was designated the de
facto mother of eleven-year-old Matthew T.
Steven T. is the presumed father of both children. (We will refer to them hereafter as the
parents or, separately, as the mother and the father.) The parents appeal from juvenile court orders
terminating their parental rights to the two children. We will affirm the orders.

FACTS AND PROCEDURAL BACKGROUND

On May 26, 2010, the Department filed petitions to
make the minors dependents of the juvenile court—Matthew T. under Welfare and
Institutions Codehref="#_ftn1"
name="_ftnref1" title="">^[1] section 300, subdivisions (b) and (g) (failure
to protect and no provision for support) and Aaron T. under section 300,
subdivisions (b) and (j) (failure to protect and abuse of sibling). In
essence, and leaving aside allegations regarding Matthew T.’s biological
mother Stephanie V., who is not a party to these appeals, the petitions
alleged that the parents were abusing drugs, the home was dangerously filthy,
and Matthew T. was caring for Aaron T. in the face of the parents’
neglect. The petitions also alleged that
the father had been involved in juvenile
dependency proceedings before because of drug abuse. The Department did not immediately remove the
children from the home, but the next day the juvenile court did so, causing the
Department to place them in separate foster care homes.

In making the inquiries that led to the
Department’s filing the petitions, officials discovered that the mother tested
positive for ingestion of methamphetamine.
The father admitted that he was consuming the substance. He was arrested. This was not the father’s first encounter
with law enforcement and juvenile dependency authorities because of drug
abuse. In 2007, the Department had filed
a dependency petition alleging that Matthew T. was at risk because the
father had been arrested for outstanding warrants and possession of contraband
substances. The father then successfully
underwent counseling, residential drug treatment, Narcotics Anonymous, and
parenting classes, and was reunited with Matthew T. in September of
2008.

In a report written for a
jurisdiction/disposition hearing scheduled for June 29, 2010, the Department stated that the mother
initially tested positive for the presence of illegal drugs in her system. She later returned two negative tests but
failed to appear for six others. The
father had missed four scheduled drug tests following an initial positive test,
but later had a negative test result.
Following a settlement conference on July 29, 2010, the juvenile court
sustained the petitions and ordered reunification services for both parents (in
the case of the mother, only for her biological son Aaron T., because she
had not yet been awarded de facto parent status for Matthew T.). Also
at the conference, the parties agreed to modify the petition to temper the
unsanitary-conditions allegation. The
modification deleted the allegation that the home was so filthy as to be
physically unsafe for the minors, but did not go so far as to retract the
allegation that the home was filthy.

In
September of 2010 the parents were still living together. A status review report for a review hearing
scheduled for September 28, 2010, related that the mother had entered into a
reunification case plan and was complying with its goals, which included
abstinence from drug use, Narcotics Anonymous meeting attendance, parenting
classes, and counseling. The father, by
contrast, was doing poorly. He had eight
positive tests for methamphetamine and accordingly was discharged from his
outpatient treatment program.
Detoxification and residential treatment were recommended for him. The juvenile court warned, in a minute order
after the hearing, that it would not order reunification if the parents
continued to live together “without authorization.”

On December 21, 2010, the juvenile court designated
the mother as Matthew T.’s de facto parent. By then, according to the status review report written
for the hearing of that day, the father had moved out of the family’s
residence, i.e., apart from the mother. The mother’s visits
with the children were going well and she continued to comply with her case
plan in an exemplary fashion. The father
was making no progress with his case plan; he was not visiting his children and
had abandoned efforts at rehabilitating himself. The Department
recommended that reunification services for the father be terminated but
continue for the mother.

At the beginning of 2011, the Department discovered
that the mother was not being honest about her relationship with the father,
who, according to an employee for the property owner, was visiting her
regularly enough at the family home that “she assumed that he still lived
there.” Another employee “confirmed that
[the father] had been living at the apartment consistently since the apartment
had been rented to [the mother].” The
property owner or its staff had evicted her, a fact she had not reported, and
she had left pets behind with no provision for their care. The mother denied all of the foregoing. She had been found, according to an animal
control officer who had visited her residence to deal with the abandoned pets,
“acting erratically.” The Department
decided to place the children with the maternal grandparents, who had been
complaining to the authorities about the parents’ treatment of the children
from the beginning of the case.

On February 18, 2011, the juvenile court, having
been apprised of the foregoing problems, terminated family reunification
services for both the mother and the father and scheduled a section 366.26
hearing, i.e., a hearing to decide the children’s permanent future.

On
May 31, 2011, the maternal grandparents filed for de facto parent status. Their
court papers included a letter from a licensed clinical psychologist. Matthew T. told her that he was afraid
to be alone with either parent and did not want to see either of them. She stated her “professional opinion that the
child should not be exposed to either [parent] and that this child’s father be
ordered to give up his parental rights.”


The Department prepared a report for the section
366.26 hearing on June 14, 2011. It
recommended terminating the parents’ rights and letting the maternal
grandparents adopt the children.

Each parent filed one or
more petitions for modification of a juvenile court order under section
388. In a petition filed on July 19,
2011, the father alleged that he could care for his sons properly and that they
were suffering under their temporary placements. He asked for them to be returned to his
care. The juvenile court summarily
dismissed this petition without a hearing, ruling that it not did state new
evidence or allege facts that, if true, would show a change in circumstances. The court also ruled that granting the
petition would not promote the minors’ best interests. In a petition filed on October 13, 2011, the
one most relevant here, the mother asked that the court reinstate family
reunification services. She asserted that
circumstances had improved following the termination of her reunification
services because she was psychologically stable, continued to avoid drug abuse,
was attending Alcoholics Anonymous and Narcotics Anonymous meetings, and was
visiting Aaron T. consistently, with the visits going well—in sum, she
could provide a suitable home environment for Aaron T.

The juvenile court set the
hearing date for the mother’s section 388 petition on the same day as the
already scheduled section 366.26 hearing.
The session to consider both items began on October 24, 2011.

At the hearing, it was not
seriously disputed that the mother had a good relationship with her children
and was bonded to them. Also, at this juncture Matthew T. was
willing to visit with the father if he was under supervision. Matthew T. told a social worker,
however, that he had some “residual” doubt that his father could care for him
properly. Aaron T., though too
young to articulate an opinion, initially showed signs of wariness about his
father. An adoption worker reported that
Aaron T. would blink repeatedly and look confused when his father tried to
display physical affection for him.
Aaron T. adjusted to both parents, however, and became happy to see
them.

At
the hearing, both parents stated that they loved their children and wanted to
maintain their family intact. They
acknowledged their past deficiencies and stated that they were determined to
improve.

The juvenile court ruled
that there was no material change in circumstances and that granting the
section 388 petitions would not be in the children’s best interests. Accordingly, it denied the petitions. Regarding the section 366.26 question, the court found that the children were both
generally and specifically adoptable and therefore it was required to terminate
parental rights unless there was clear
and convincing evidence that a compelling reason against termination
existed. It found that the parent-child
beneficial relationship exception to termination of parental rights, available
in principle under section 366.26, subdivision (c)(1)(B)(i), did not
apply. Among its reasons, which we quote
at length in the margin, were that the parents had engaged in evasive and
dishonest behavior—the court described this as a “consistent campaign of denial
and diversion”— and the mother was unable to surmount her drug use problems or
her unhealthy reliance on the father and was depressed. The court opined that the children needed
consistency and stability that the parents could not provide. It terminated the parents’ rights but then
stated its hope that all of the adults involved in the case would try to
maintain family ties.href="#_ftn2" name="_ftnref2" title="">^[2]

DISCUSSION

The
mother argues that the parent-child beneficial relationship exception to the
statutory preference for adoption applies to her. The father joins in her argument and asserts
that if she prevails then the California Rules of Court entitle him to
restoration of his parental rights.

With
regard to dispositions in juvenile dependency cases, the best interest of the
child controls. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) Adoption is the preferred alternative. (§ 366.26, subd. (b), (b)(1), (b)(2),
(b)(5).) “ ‘The permanent plan
preferred by the Legislature is adoption.
[Citation.]’ [Citation.] ‘ “The Legislature has decreed
. . . that guardianship is not in the best interests of children who
cannot be returned to their parents.
These children can be afforded the best possible opportunity to get on
with the task of growing up by placing them in the most permanent plan and
secure alternative that can be afforded them.” ’ ” (In re
Josue G. (2003) 106 Cal.App.4th 725, 732.)

As
noted, the parents claim that the juvenile court erred by not finding the
existence of a statutory exception to the adoption preference, specifically the
parent-child beneficial relationship exception to adoption defined in section
366.26, subdivision (c)(1)(B)(i). That
provision permits a juvenile court to choose an option other than adoption when
the parent has “maintained regular visitation and contact with the child and
the child would benefit from continuing the relationship.” (Ibid.)

We recently held that review of a court’s
determination of the applicability of the parental or sibling relationship
exceptions under section 366.26 is governed by a hybrid substantial
evidence/abuse of discretion standard. (In
re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) As we explained, “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. [¶]
The same is not true as to the other component of . . . both the
parental relationship exception and the sibling relationship exception[, which]
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.” (Ibid.)

It is immediately apparent
that the father does not come under this exception. His record of visiting and maintaining
contacts with Matthew T. and Aaron T. has been one of neglect and
seeming indifference, notwithstanding his testimony at the contested section
366.26 hearing. Moreover, the father
does not raise an independent claim that he qualifies under the parental
beneficial relationship exception.
Rather, he argues that if this court agrees with the mother’s argument,
then he is entitled to the benefits of our decision regarding her status under
rule 5.725(a)(2) of the California Rules of Court, which provides: “The court may not terminate the rights of
only one parent under section 366.26 unless that parent is the only surviving
parent; or unless the rights of the other parent have been terminated under
[other statutes not applicable here]; or unless the other parent has
relinquished custody of the child to the welfare department.” In addition, we note that rule 5.725(g) of
the California Rules of Court similarly provides, and with additional
specificity in places: “The purpose of
termination of parental rights is to free the dependent child for adoption. Therefore,
the court must not terminate the rights of only one parent unless that parent
is the only surviving parent, or the rights of the other parent have been
terminated by a California court of competent jurisdiction or by a court of
competent jurisdiction of another state under the statutes of that state, or
the other parent has relinquished custody of the child to the county welfare
department. The rights of the mother, any presumed
father, any alleged father, and any unknown father or fathers must be
terminated in order to free the child for adoption.”

As
will appear, however, we find the mother’s claim unpersuasive, and hence rules
5.725(a)(2) and (g) of the California Rules of Court do not apply in the
father’s favor.

To
be sure, the mother visited the children often and successfully and stands in a
different legal position from the father.
Nevertheless, substantial evidence supports the juvenile court’s
decision that the beneficial relationship exception should not be exercised in
her case.

“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.) But to qualify for that
exception the mother had to do “more than demonstrate ‘frequent and loving
contact’ [citation], an emotional bond with the child, or that [she] and [her]
child find their visits pleasant. [Citation.]
Rather, [she] must show that [she] occup[ies] ‘a parental role’ in the
child's life.” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) 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.” (>In re Autumn H., supra, at p. 575.)

The
juvenile court did not abuse its discretion (In re Bailey J., supra, 189 Cal.App.4th at
p. 1315) in finding that the mother had not shown a “compelling
reason” (§ 366.26, subd. (c)(1)(B)) to qualify for the exception. She did not demonstrate that Aaron T.
would be “greatly harmed” (In re Autumn H.,
supra, 27 Cal.App.4th at p. 575)
by ending her parental rights, and the positive nature of their contacts was
insufficient by itself. (>In re Andrea R., supra, 75 Cal.App.4th at p. 1108.)
The juvenile court found that Aaron T. was generally and
specifically adoptable and there is no dispute that his foster parents, the
maternal grandparents, were prepared to adopt him. They had cared for him for an extended period
already, and done so satisfactorily.

The
mother takes particular issue with the juvenile court’s statement that she was
depressed. The court stated: “[T]he
depression also I think is a big issue that has robbed her from any long term
stability.” (Ante, fn. 2.) The mother asserts that there is no evidence
whatsoever that she was depressed. The
Department responds in part that the court’s focus lay elsewhere and not
particularly on any question of depression and that the court could have
directly observed depression by watching the mother during a number of court
appearances.

We cannot agree with the
Department about the question of focus, because the juvenile court called the
mother’s purported depression “a big issue.”
Clearly, it mattered to the court’s decision. Conversely, we do agree with the Department
that on this record, we cannot reject the possibility that the court was
referring to the time it spent observing the mother’s demeanor and mental state
in the courtroom. Accordingly, we will
not reverse the order based on the court’s reference to the mother’s purported
depression. In any event, leaving aside
the question of depression, substantial
evidence supports the juvenile court’s finding, in essence, that the
relationship did not “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.” (In re
Autumn H., supra, 27 Cal.App.4th
at p. 575.)

CONCLUSION

The orders are affirmed.





______________________________________

Duffy,
J.href="#_ftn3" name="_ftnref3" title="">^*











WE CONCUR:











______________________________________

Rushing,
P. J.











______________________________________

Premo,
J.