In re N.B. CA4/2 ( 2015 )

Filed 9/10/15 In re N.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.B. et al., Persons Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,
E063310
Plaintiff and Respondent
v. (Super.Ct.Nos. J251000 & J25100l)
A.G.,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel and Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
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A.G., the mother of Niv.B., age two, and Nik.B., age three, appeals from a
judgment terminating her parental rights, pursuant to Welfare and Institutions Code,1
section 366.26. Mother lost custody of the children after an initial period of family
maintenance services due to a drug relapse and her arrest for theft. Two months before
the hearing pursuant to section 366.26, mother participated in online parenting and anger
management classes, and filed a petition for modification of the prior order terminating
services (§ 388), to be heard on the date of the 366.26 hearing. At the hearing, the court
denied the section 388 petition and terminated parental rights. Mother appeals.
On appeal, mother argues that the order terminating parental rights must be
reversed because the juvenile court erred in finding there was no beneficial parent-child
relationship. We affirm.
BACKGROUND2
The family first came to the attention of the San Bernardino County Children and
Family Services (CFS) on August 8, 2013, upon a referral alleging the children, Niv.B.,
age 10 months, and Nik.B., age 22 months, had been physically abused and severely
neglected. A social worker responding to the referral found no evidence of abuse, there
was adequate food, and the children appeared to be safe with the parents. Two more
1 All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2Because father is not a party to this appeal, only limited references to him are
provided, and only as necessary.
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follow up visits led CFS to file a petition on behalf of the children based on the parents’
admitted use of controlled substances.
Mother admitted she had a long history of using drugs, and tested positive for
marijuana and methamphetamine. Mother also acknowledged she had been diagnosed
with bipolar disorder and possible schizophrenia, for which she was not taking
medication. The social worker provided the parents with drug referrals, but did not take
the children into temporary custody because the children appeared safe. On September 3,
2013, CFS filed a dependency petition pursuant to section 300, subdivision (b), based on
the parents’ inability to provide regular care due to mental illness and substance abuse.
On October 1, 2013, the children were detained by CFS after both parents
admitted using drugs and the children appeared unkempt. On November 4, 2013, at the
contested jurisdictional/dispositional hearing, the court sustained the petition, declared
the children to be dependents, removed custody from the father, but placed the children
with their mother under a family maintenance plan.
On February 18, 2014, CFS filed supplemental petitions pursuant to section 387
on the grounds that the prior disposition of family maintenance had been ineffective in
the protection of the children where mother had abused drugs, was arrested for
shoplifting, and had used inappropriate discipline on Nik.B. The children were detained
with a paternal uncle and his girlfriend. On April 2, 2014, the court found that the
children came within the provisions of section 387 in that the previous disposition had
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been ineffective in the protection of the minors, removed the children from mother’s
custody, and ordered the parents to participate in court ordered reunification services.
At the time of the six month review report, the prognosis for reunification was
guarded because mother had relapsed and had only begun drug treatment in March 2014.
Father had completed his service plan, but still lived with his mother. During visits, the
children were happy to see mother, who played with them and brought food and snacks.
Both parents were described as appropriate in their discipline of the children and changed
their diapers when needed. At the six-month review hearing, the court found mother’s
progress was moderate, and extended reunification services.
On October 9, 2014, the social worker submitted a 12-month review report, in
which CFS recommended terminating reunification services. Mother had a myriad of
problems relating to her bipolar disorder and schizophrenia which led to conflicts with
everyone in her life, and ultimately to discharge from her substance abuse program. She
had not completed any services. Mother was also dishonest in reporting her progress in
programs.
The social worker also noted that mother exercised poor judgment: she had a new
boyfriend, by whom she was pregnant, and lived with the boyfriend along with his ex-
girlfriend and the three children from that relationship. She also came to the CFS office
for a meeting with her social worker bringing the 11-month old dependent child of
another woman, whom mother claimed to be babysitting. The report observed that
mother loved her children and wanted to reunify, but her poor impulse control made it
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unlikely she would be able to care for three children, particularly since Nik.B. appeared
to be autistic. Aside from commenting that mother visited weekly with the children, the
social worker made no observations about the quality of the parent-child relationship.
On November 4, 2014, the court conducted the 12-month review hearing pursuant
to section 366.21, subdivision (f), at which the court found by clear and convincing
evidence that the parents had failed to regularly participate in the court ordered treatment
plan, terminated reunification services, and set a selection and implementation hearing
pursuant to section 366.26.
On February 20, 2015, the social worker submitted a report pursuant to section
366.26, recommending a permanent plan of adoption. By this time, both children were
found to be developmentally delayed and Nik.B. was diagnosed with autism. Between
November 4, 2014 and the date of the section 366.26 report, a period of about three
months, mother had visited only twice. During visits, mother interacted with the children
appropriately. However, there was a mutual attachment between the children and their
adoptive parents, who were committed to adoption, and whom the children considered
parent figures. Nik.B. cried when his uncle (the adoptive father) left for work in the
morning.
On March 13, 2015, mother filed a petition requesting modification of the prior
order pursuant to section 388. In the petition, mother alleged her circumstances had
changed in that she was seeking therapy and psychiatric help, and she had obtained
certificates for parenting education and anger management. By way of showing how the
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proposed modification would be in the children’s best interests, mother stated that the
requested order would be better “for [the] child because the child belongs in mother’s
care.”
Attached to mother’s petition were exhibits: a page from a prescription pad of
Exodus Recovery, Inc., on which a psychiatrist handwrote a memo indicating mother had
undergone a psychiatric evaluation on March 8, 2015 at Exodus Urgent Care, she was
pregnant, no medication was indicated at that time, and that after delivery, mother can
pursue outpatient services. Also attached was a document indicating mother had enrolled
in the Open Path Psychotherapy Collective online Parenting Skills course on March 4,
2015, and a certificate of completion of that course dated February 14, 2015, predating
mother’s enrollment. Additional documents reflected mother had enrolled in the Open
Path Psychotherapy Collective online Anger Management course on March 4, 2015, and
received a certificate of completion bearing the same date.
CFS filed a response recommending denial of the petition because there was no
way to assess whether mother had learned any parenting or anger management skills
from the online courses other than her conduct at the visits. As to mother’s visits, the
social worker had noticed no change in mother’s approach to parenting or anger
management. Mother’s approach to parenting and anger management had resulted in
stressful or uneasy moments with the children; mother became impatient with the
children’s need to go to the toilet, yelled at Niv. B. when the latter touched her phone,
and grabbed Nik.B. aggressively by the wrist when he had an emotional outburst.
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Mother still had not addressed her substance abuse, which was one of the main
factors in the original intervention, and she had not submitted to random drug testing so it
was not possible to determine if she was clean. The social worker acknowledged that the
children appeared to have a bond with mother and the maternal great-grandmother, but
noted they referred to mother by her first name, and called their caregivers “mom” and
“dad.”
On April 7, 2015, the court heard the section 388 petition and the section 366.26
hearing. The court found there was no change of circumstances and denied the request
for modification. The court found by clear and convincing evidence that the children
were adoptable and that mother had failed to establish a parent-child bond sufficient to
override the permanency of adoption. Mother appealed.
DISCUSSION
On appeal, mother argues that the juvenile court erred when it failed to apply the
beneficial parent-child relationship exception to finding of adoptability, insofar as mother
maintained regular contact with the children through weekly visitation, and it would be
detrimental to terminate parental rights. We disagree.
Section 366.26, subdivision (c)(1), provides that if the court determines, based on
the [adoption] assessment and any other relevant evidence, that it is likely the child will
be adopted, the court shall terminate parental rights and order the child placed for
adoption, unless one of several statutory exceptions applies. This reflects a statutory
preference to terminate parental rights and order a child placed for adoption. (In re C.B.
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(2010) 190 Cal. App. 4th 102, 121.) Once the court determines a child is likely to be
adopted, the burden shifts to the parent to show that termination of parental rights would
be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B).
(In re Zachary G. (1999) 77 Cal. App. 4th 799, 809, citing In re Lorenzo C. (1997) 54
Cal. App. 4th 1330, 1343-1345.)
Under section 366.26, subdivision (c)(1)(B)(i), parental rights cannot be
terminated if the juvenile court finds a compelling reason for determining that
termination of parental rights would be detrimental to the child because the parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship. (In re C.B., supra, 190 Cal.App.4th at pp. 123-124.) This
section does not require proof the child has a “primary attachment” to the parent or that
the parent has maintained day-to-day contact with the child. (In re S.B. (2008) 164
Cal. App. 4th 289, 299.)
However, the exception applies only when the relationship with a natural parent
promotes 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.
(1994) 27 Cal. App. 4th 567, 575.) The determination of whether a beneficial parent-child
relationship exists is reviewed for substantial evidence. (In re Bailey J. (2010) 189
Cal. App. 4th 1308, 1314.)
To overcome the preference for adoption and avoid termination of the natural
parent’s rights, the parent must show that severing the natural parent-child relationship
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would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed. (In re Angel B. (2002) 97 Cal. App. 4th 454, 466 [emphasis by
court], citing In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1332, 1342.) The factors to
be considered when looking for whether a relationship is important and beneficial are:
(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., supra, 97 Cal.App.4th at p. 467; see also, In re
Bailey J., supra, 189 Cal.App.4th at p. 1315.)
Here, at the beginning of the dependency, mother visited regularly and the
children were reported to share a bond with the parents. However, during the four month
period leading up to April 7, 2015, the date of the section 366.26 hearing, mother visited
only twice. This contradicts mother’s testimony that she maintained regular weekly
contact and visitation throughout the dependency period. Mother failed to establish the
first prong of the beneficial parent-child relationship exception.
As to the second prong, mother did not present any evidence that her relationship
promoted the well-being of the children to such a degree as to outweigh the well-being
the child would gain in a permanent home with new, adoptive parents. Her testimony
that the children called her “mom” must be considered in context, where it appears they
also called their paternal uncle “dad,” and the aunt “mom.” Additionally, while mother
indicated that in the past Nik.B. would be upset when the visits ended, currently the
children did not get upset at the end of visits.
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Considering the special needs of the children, their very young ages, and the
commitment of the adoptive parents to meet their needs, we do not find that the mother-
child relationship promotes the well-being of the children to such a degree as to outweigh
the well-being they would gain through adoption. There is substantial evidence
supporting the judgment terminating parental rights.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
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