In re M.E. CA4/1 ( 2015 )

Filed 12/11/15 In re M.E. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.E., a Person Coming Under the
Juvenile Court Law.
D068148
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518405C)
Plaintiff and Respondent,
v.
T.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Daniela Davidian,
Deputies County Counsel.
T.S. (Mother) appeals a juvenile court order terminating parental rights to her
child, M.E. Mother contends the juvenile court erred in finding the beneficial parent-
child relationship exception to adoption (Welf. & Inst. Code,1 § 366.26, subd.
(c)(1)(B)(i)) did not apply and terminating parental rights. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
M.E., who was two years old at the time parental rights were terminated, is the
child of Mother and D.E. (Father). The juvenile court terminated Mother's parental rights
to M.E.'s half-siblings, B.P. and D.P., in August 2014.2
Agency's Section 300 Petition
In August 2013, the San Diego County Health and Human Services Agency
(Agency) filed a dependency petition for then three-month-old M.E. The petition alleged
M.E. was at substantial risk of serious physical harm because she and her half-siblings
were exposed to violent confrontations between Mother and Father. (§ 300, subd. (b).)
M.E.'s half-siblings were already dependents of the court due to domestic violence
incidents between Mother and B.P. and D.P.'s father.
At an ensuing detention hearing, the juvenile court found Agency had made a
prima facie showing that M.E. was a person described under section 300, subdivision (b)
1 Statutory references are to the Welfare and Institutions Code.
2 Father does not appeal, and we do not discuss facts related to his rights. B.P. and
D.P. are not parties to this appeal. The history of their dependency proceedings is
detailed in our nonpublished opinion, In re Brianna P. (March 13, 2015, D066530).
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and detained M.E. in a licensed foster home. The court ordered Agency to provide
liberal, supervised visitation.
In September 2013, the juvenile court placed M.E. in a licensed foster home and
ordered services for Mother. Mother's case plan required her to attend a domestic
violence program, a parenting education program, and individual therapy. When Mother
finished breastfeeding, the court reduced her supervised visitation from four to two times
a week.
In March 2014, a social worker reported that Mother's therapist, Estella Bobadilla,
stated that Mother had not completed therapy or met her case plan goals. Bobadilla felt
Mother loved and had "amazing interaction" with her children, but she was unable to care
for them. According to Bobadilla, Mother did not have the emotional resources for a
baby, nor could Bobadilla say Mother could parent, especially without family or support.
Bobadilla was concerned with Mother's inability to be empathic with her children,
attraction to unhealthy relationships, and unstable housing situation. She also expressed
concern over Mother's mental health, as she exhibited manic states and signs of
depression. Agency recommended that Mother's services be terminated and that the
matter be set for a section 366.26 hearing.
March 2014 Section 366.21 Hearing
At the contested six-month review hearing in March 2014, despite Agency's
recommendations, the juvenile court found a substantial likelihood M.E. would be
returned to Mother within the next six months and continued Mother's reunification
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services to the 12-month review date. One month later, the juvenile court ordered a court
appointed special advocate (CASA) for M.E.
In August 2014, M.E.'s CASA observed M.E.'s developmental skills had
"soar[ed]" and that M.E. "clearly has a loving relationship with her foster parents and her
siblings." The foster mother exposed M.E. to many activities and created an environment
that enhanced M.E. and her half-siblings' play and growth, and the foster mother
participated in M.E.'s weekly in-home sessions with her teacher. M.E. had undergone
successful physical therapy while in her foster mother's care.
In September 2014, a social worker reported that Mother had confronted Father at
a bus stop. Mother had not complied with her case plan or consistently participated in
services, including parenting classes and domestic violence groups. Therapist Bobadilla
reported she had neither seen nor heard from Mother since June 2014. Bobadilla told the
social worker Mother did not have the "emotional stability" to be a parent. She
concluded Mother did not understand the consequences of her domestic violence issues
and could not be protective. During this time, Mother reported she had been homeless
for four or five months and stayed with friends while she unsuccessfully sought room in
shelters or transitional housing programs.
Despite these issues, the social worker noted Mother consistently visited M.E. on
Mondays and Fridays, and acted appropriately by showing affection towards M.E.,
keeping an eye on her, redirecting her, and changing her diaper. However, the Friday
visits were discontinued in July 2014 because Mother had eight absences or
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cancellations. M.E.'s caregiver reported M.E. cried and clung to her when M.E. left for
visits.
In October 2014, a social worker reported that Mother had not re-engaged in her
services; Mother reported she was experiencing "major depression," was tired of trying,
and had lost hope. Her housing situation remained unstable, and she failed to contact a
housing program specialist for an interview. The social worker concluded Mother's
history of abuse, instability and neglect was likely to continue to interfere with her ability
to parent M.E. and recommended termination of reunification services.
October 2014 Twelve-Month Review Hearing
At the contested 12-month review hearing, the juvenile court found Mother's
failure to make substantive progress in her services was prima facie evidence of
detriment. Based on the history of domestic violence between Mother and Father, the
court found Mother lacked the insight into domestic violence necessary to show the court
she could safely parent and protect M.E. Mother failed to demonstrate her capacity and
ability to complete her case plan objectives and provide for M.E.'s protection, well-being,
and needs. The court terminated Mother's reunification services and set a section 366.26
hearing.
In February 2015, Agency social worker Alanna Chiler observed that M.E. had
lived with her current caregivers since she was three months old. She reported M.E.
called her caregivers "mommy" and "papi" and sought comfort from them. The
caregivers were in the process of adopting M.E.'s half-siblings. Chiler reported that
Mother inconsistently participated in her case plan and visits, and continued to have
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unstable housing. She observed Mother showed little insight into the significant impact
that witnessing domestic violence had on her children. She noted Mother had failed to
reunify with M.E.'s two older siblings, and exhibited a pattern of violent relationships and
housing instability. She inconsistently participated in her services for M.E. Although
M.E. appeared to enjoy visits with Mother, Chiler believed the relationship between M.E.
and Mother did not rise to the level of a parent-child relationship. M.E. did not display
any emotional distress when visits ended or when Mother failed to attend. M.E.'s
caregivers consistently met her needs, and M.E. relied on them to meet her needs. Chiler
concluded Mother's ability to meet M.E.'s needs during a two-hour visit did not indicate
that she could do so if M.E. were placed back in her care. She recommended termination
of Mother's parental rights and adoption as M.E.'s permanent plan.
In February 2015, M.E.'s CASA reported that the foster mother made M.E.'s
placement "as nurturing as possible." M.E.'s two half-siblings were also placed in the
home, and the caregivers showed willingness to adopt all three of the children. M.E.'s
developmental skills continued to soar. The CASA attributed these developments to
M.E.'s services and the foster mother's nurturing home environment. Mother missed two
visits the CASA had planned to observe. Although M.E. enjoyed her visits with Mother,
the CASA reported M.E. "continues to cry out for her foster mother" and the foster home
"provides her a great sense of family and permanency." The CASA recommended
termination of Mother's parental rights and adoption as the permanent plan.
In April 2015, Chiler reported additional visits she observed between M.E. and
Mother. She acknowledged Mother's love for M.E. but compared Mother's interaction
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with M.E. to a sibling or peer relationship. In contrast, M.E. looked to her current
caregivers to meet her daily needs. Chiler opined adoption would provide M.E. the
"emotional security, sense of family and stability" she needed. She concluded the
enjoyment M.E. experienced from visits with Mother did not outweigh the benefits of
adoption and recommended termination of parental rights and adoption.
M.E.'s CASA reported M.E.'s developmental progress had continued because of
her services and the foster mother's nurturing home environment. The CASA observed
M.E. was happy and excited about her activities. M.E.'s vocabulary grew, and her fine
and gross motor skills appeared to be age appropriate. The CASA continued to
recommend termination of parental rights and adoption as M.E.'s permanent plan.
In an addendum report filed on the day of the section 366.26 hearing, Chiler
reported three additional visits that occurred in April 2015. Chiler reported M.E.
eventually warmed up to and appeared to enjoy playing with Mother during the visits.
Chiler acknowledged Mother helped M.E. wipe her nose, took her to the bathroom, and
made sure she did not get hurt. However, she pointed out that Mother continued to
struggle with her housing and her continuing unemployment. Chiler believed Mother
was unable to care for M.E. because of the "instability in her life and unresolved trauma."
As a result, she opined Mother had failed to mitigate the circumstances that brought M.E.
to the juvenile court's attention. Chiler noted M.E. looked to her caregivers for all her
needs and was thriving in her current home. She continued to recommend termination of
parental rights and a permanent plan of adoption.
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Section 366.26 Hearing
At the May 2015 section 366.26 hearing, the juvenile court accepted Agency's and
the CASA's reports.3 Agency also presented social worker Chiler as a witness. Chiler
testified Mother did her best to maintain contact with M.E., who was then two years old.
Chiler testified that she had observed at the last visit in May 2015 that, unlike previous
visits with Mother, M.E. willingly went to the visit, walked up to Mother and recognized
her as "mommy." Chiler noted that at times M.E. had refused to go and ran to her
caregiver when it was time to go to visits.
Chiler testified that Mother took on a parental role during visits by ensuring M.E.
did not hurt herself and taking her to the bathroom. However, Chiler clarified that a
"parental role" meant a "responsible adult role." She pointed out that Mother had never
progressed beyond supervised visits, and that other adults had taken on the same
responsible adult role. According to Chiler, she herself took on a parental role by helping
M.E. into her car seat, taking her to the bathroom, and ensuring her safety. Chiler
testified that to determine whether the requisite parent-child relationship exists, she
considers whether the child goes to the caregiver to get his or her needs met, how the
child reacts to the caregiver or parent, how long the child has lived with the parent or
caregiver, and the child's reaction after the visit. She testified there was a difference
between taking on a parental role in a visit and having a parent-child relationship, and
3 Specifically, those were Agency's February 18, 2015 section 366.26 report,
February 18, 2015 addendum report, and April 20, 2015 addendum report, the CASA's
April 14, 2015 report, and Agency's May 6, 2015 addendum report.
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opined there was no parent-child relationship between M.E. and Mother. She based her
opinion on the fact that M.E. had only lived with Mother for three months, lived with her
caregiver for most of her life, looked to her caregiver to get all her needs met, had
difficulties leaving the caregiver, and initiated affection with the caregiver after returning
from visits. Chiler felt M.E. had developed a bond with her current caregiver, whom she
viewed in a parental role. According to Chiler, apart from the May 2015 visit, M.E.
would not recognize Mother as her mother. Other times, M.E. would wait for Mother to
come up to her and neither reacted nor displayed any facial expression when she
approached her.
Mother testified she was the only one caring for M.E. before M.E. was removed
from her. She pointed out that at their last visit, M.E. came to the door and hugged her.
Though M.E. could not speak, Mother felt she recognized her partly because she called
her "mommy." Mother stated she acted as a parent by ensuring M.E. did not get hurt,
washing M.E.'s hands after bathroom trips, telling her to say "please" and "thank you,"
and redirecting her behavior. She pointed out she brought clothes, toys, candy, food, and
snacks for M.E. and her half-siblings, and redirected M.E. when she acted out.
Adopting the recommendations in Chiler's section 366.26 report, and considering
the documents and testimony presented, the juvenile court found by clear and convincing
evidence that M.E. was generally and specifically adoptable and likely to be adopted if
parental rights were terminated, adoption was in M.E.'s best interests, termination of
parental rights would not be detrimental to M.E., and none of the exceptions to adoption
under section 366.26, subdivision (c)(1)(B) applied. The court acknowledged Mother
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had regularly and consistently visited M.E., loved M.E., and took on a role as a
responsible adult during visits, but found she did not have a parent-child bond that would
override the benefits of adoption or cause detriment if the relationship was severed. The
court based its finding on the fact Mother never progressed beyond unsupervised visits,
she did not have full-time care of M.E. since M.E. was three months old, and the primary
parents and caregivers in M.E.'s life were her licensed foster parents. The court
terminated Mother's parental rights and referred M.E. for adoption.
Mother timely appealed.
DISCUSSION
I. Legal Principles and Standard of Review
This court recently summarized the relevant legal principles, including the
applicable standard of review, in In re Anthony B. (2015) 239 Cal. App. 4th 389: "At a
section 366.26 permanency planning hearing, the juvenile court determines a permanent
plan of care for a dependent child, which may include adoption. [Citations.] 'If the
dependent child is adoptable, there is strong preference for adoption over the alternative
permanency plans.' [Citations.] In order to avoid termination of parental rights and
adoption, a parent has the burden of proving, by a preponderance of the evidence, that
one or more of the statutory exceptions to termination of parental rights set forth in
section 366.26, subdivision (c)(1)(A) or (B) apply. [Citations.] The court, 'in exceptional
circumstances,' may 'choose an option other than the norm, which remains adoption.'
[Citation.] The parental benefit exception applies when there is a compelling reason that
the termination of parental rights would be detrimental to the child. This exception can
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only be found when the 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).) We apply the substantial evidence standard of review to the factual issue of
the existence of a beneficial parental relationship, and the abuse of discretion standard to
the determination of whether there is a compelling reason for finding that termination
would be detrimental to the child." (In re Anthony B., at p. 395.)
On our 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 Autumn H. (1994) 27 Cal. App. 4th 567, 576.) "The
appellate court does not reweigh the evidence, evaluate the credibility of witnesses or
indulge in inferences contrary to the findings of the trial court." (In re Michael G. (2012)
203 Cal. App. 4th 580, 589.)
The determination of whether there is a compelling reason for finding
termination of the relationship would be detrimental to the child is " ' "quintessentially"
discretionary' " as it " '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 . . . .' " (In re
K.P. (2012) 203 Cal. App. 4th 614, 622.) Thus, we will not disturb that decision unless the
court has " ' "exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations]." ' [Citations.] . . . 'The appropriate test for
abuse of discretion is whether the trial court exceeded the bounds of reason. When two
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or more inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.' " (In re Stephanie M. (1994)
7 Cal. 4th 295, 318-319.)
The beneficial parent-child relationship exception must be examined on a case-by-
case basis, taking into account variables such as the "age of the child, the portion of the
child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction
between parent and child, and the child's particular needs." (In re Autumn H., supra, 27
Cal.App.4th at pp. 575-576.) The parent asserting the exception will not meet his or her
burden by showing the existence of a "friendly and loving relationship," an emotional
bond with the parent, or pleasant, even frequent, visits. (In re J.C. (2014) 226
Cal. App. 4th 503, 529; In re C.F. (2011) 193 Cal. App. 4th 549, 555; In re Beatrice M.
(1994) 29 Cal. App. 4th 1411, 1418-1419; In re L.S. (2014) 230 Cal. App. 4th 1183, 1200
["To avoid termination of parental rights, it is not enough to show that a parent-child
bond exists"].) There must be a parental role in the child's life, resulting in a significant,
positive emotional attachment from the child to parent that if severed would result in
harm to the child. (In re C.F., at p. 555; In re Elizabeth M. (1997) 52 Cal. App. 4th 318,
324; see also In re J.C., at p. 529 [observing that interaction between a natural parent and
child will always confer some incidental benefit to the child and for the exception to
apply, " 'a parental relationship is necessary' "].)
The " 'benefit' " necessary to trigger the exception requires that the relationship
" 'promotes the well-being of the child to such a degree as to outweigh the well-being
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the child would gain in a permanent home with new, adoptive parents. In other words,
the court balances the strength and quality of the natural parent/child relationship in
a tenuous placement against the security and the sense of belonging a new family
would confer. 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 J.C., supra, 226 Cal.App.4th at pp. 528-529, citing In re Autumn H.,
supra, 27 Cal.App.4th at p. 575.)
II. Substantial Evidence Supports the Juvenile Court's Finding Mother Did Not Have a
Parent-Child Relationship with M.E.
Because the juvenile court found M.E. was adoptable, it was Mother's burden to
show termination of her parental rights would be detrimental under one of the section
366.26, subdivision (c)(1) exceptions. (In re Anthony B., supra, 239 Cal.App.4th at
p. 395.) Mother contends the juvenile court erred when it found the beneficial parent-
child relationship exception did not apply.4 In particular, pointing to Chiler's testimony
and reports that Mother exhibited a "parental role" with M.E., she maintains substantial
evidence does not support the court's finding that no parent-child relationship existed
between her and M.E. The contention, however, ignores Chiler's detailed explanation
concerning what she meant by the phrase "parental role," her testimony about the type of
4 Agency does not challenge the juvenile court's finding that Mother had regular
visitation and contact with M.E. Mother does not challenge the court's finding that M.E.
is adoptable.
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parental relationship necessary to meet the exception, and her conclusion that Mother did
not have the requisite parent-child relationship with M.S. The juvenile court was entitled
to credit Chiler's assessments and conclusions. (In re Casey D. (1999) 70 Cal App.4th
38, 53; see also In re T.W. (2013) 214 Cal. App. 4th 1154, 1162 [reviewing court defers to
juvenile court's finding that the social worker's testimony was credible].) Chiler's reports
and testimony alone constitute substantial evidence supporting the juvenile court's
finding that the parent child-relationship exception was unmet.
As do many appellants in Mother's situation, Mother focuses on the evidence in
her favor. She maintains that she and M.E. shared love and affection for each other, and
had the type of relationship as the parent and child did in In re S.B., supra, 164
Cal. App. 4th 289. But in In re S.B., unlike Mother here, the father "complied with 'every
aspect' of his case plan" and placed the child's needs above his own. (Id. at p. 300.)
Unlike here, where M.E. at times did not want to attend visits, easily separated from
Mother at the visits' conclusion, and was neither sad nor upset when visits did not occur,
the child in In re S.B. became upset when visits ended, and the social worker reported it
pained Agency not to be able to reunify the father and his child. (Id. at p. 294.) A
bonding study described the bond between the father and child as " 'fairly strong' or
'moderate,' " and the psychologist who conducted the study testified there was a potential
for harm to the child if the relationship was severed. (Id. at pp. 295-296.) This court
found that the child "would be greatly harmed by the loss of her significant, positive
relationship" with her father, and that the juvenile court erred by declining to apply the
beneficial parent-child relationship exception. (Id. at p. 301.)
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We have repeatedly emphasized that In re S.B. must be "confined to its
extraordinary facts" and "does not support the proposition a parent may establish the
parent-child beneficial relationship exception merely by showing the child derives some
measure of benefit from maintaining parental contact." (In re C.F., supra, 193
Cal.App.4th at pp. 558-559; In re Jason J. (2009) 175 Cal. App. 4th 922, 937.) Here, there
was no bonding study or other evidence indicating a strong or even moderate bond
between Mother and M.E. Mother's reliance on In re Amber M. and In re Brandon C. is
unpersuasive for similar reasons. (In re Amber M. (2002) 103 Cal. App. 4th 681, 690-691
[beneficial parent-child relationship exception applied where bonding study showed
detriment if the relationship was severed and mother "did virtually all that was asked of
her" to regain custody]; In re Brandon C. (1999) 71 Cal. App. 4th 1530, 1535-1537
[guardianship order upheld where the mother showed progress in services, the children
looked forward to visits and initiated affection towards the mother, the children cried
after visits ended, and the mother and appointed guardian testified there was a close bond
between the mother and the children and the children would benefit from continued
contact with the mother].)
III. The Juvenile Court Did Not Abuse its Discretion in Finding Termination of Mother's
Relationship with M.E. Did Not Outweigh the Benefits of Adoption or Would Cause
Detriment if Severed
Mother contends the benefits of continuing her relationship with M.E. outweigh
the benefits of adoption, because she has been a constant in M.E.'s life, cared for her
when she was young, continued to breastfeed her, and consistently visited her throughout
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the case. Mother also asserts she shares a "common history" of domestic violence with
M.E., and M.E. would benefit from the understanding that Mother did all she could at the
time to protect M.E., ensure her safety, and maintain a parent-child relationship with her.
Mother further argues she eliminated the risks that initially brought M.E. under the
dependency system by ending her relationship with Father.
Even if Mother had shown a parental relationship with M.E., we cannot say the
juvenile court abused its discretion by finding the relationship Mother had with M.E.
neither outweighed the benefits of adoption nor would be detrimental to M.E. if severed.
As stated, supervised visits are the sole basis for M.E.'s relationship with Mother, and
M.E. has been in the care of her current caregivers for most of her life. Contrary to
Mother's contention that she eliminated the risk of domestic violence, Agency reported
Mother failed to mitigate the circumstances that made M.E. a dependant of the juvenile
court. Mother did not make substantial progress in her reunification services intended to
protect her from domestic violence, and Agency reported Mother could not be a
protective parent and failed to understand how domestic violence impacted her children.
During dependency proceedings, additional disputes occurred between Mother and
Father. As stated, there is no bonding study or other evidence to show terminating
Mother's relationship with M.E. would be detrimental to M.E. (§ 366.26, subd.
(c)(1)(B)(i); accord, In re J.C., supra, 226 Cal.App.4th at pp. 533-534; In re C.F., supra,
193 Cal.App.4th at p. 557.) Mother focuses on the wrong standard when she argues that
continuing the relationship would not be detrimental to M.E.
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In contrast, M.E. thrived in the "nurturing home environment" her caregivers
provided, was bonded to them, and turned to them for comfort and her daily needs. She
eagerly returned to them and was affectionate to them after visits, and the caregivers were
committed to adopting her and her half-siblings. The court reasonably concluded Mother
did not have a parent-child relationship that would override the benefits of adoption or
would make termination of parental rights detrimental to M.E. For these reasons, the
juvenile court did not abuse its discretion in finding the beneficial parent-child
relationship exception to adoption did not apply.
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DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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