In re Wyatt B. CA4/3 ( 2021 )

Filed 12/17/21 In re Wyatt B. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re WYATT B., a Person Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060123
Plaintiff and Respondent,
(Super. Ct. No. 19DP0223)
v.
OPINION
STEPHANIE S.,
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Robert
Gerard, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
* * *
INTRODUCTION
Under Welfare and Institutions Code section 366.261, subdivision (c)(1)(B),
a juvenile court may decline to terminate parental rights even if it is likely a dependent
child will be adopted. To do so, it must find termination would be detrimental to the
child under certain enumerated exceptions. At issue here is the proper application of the
parental benefit exception under section 366.26, subdivision (c)(1)(B)(i). Should the
juvenile court determine the parent has “maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship” such that
termination would be detrimental, it can preserve parental rights. (§ 366.26, subd.
(c)(1)(B)(i); see also In re Caden C. (2021) 11 Cal.5th 614, 631 (Caden C.).)
This case sadly demonstrates the wisdom of the old saying “Sometimes
love isn’t enough.” It also illustrates how difficult and important is the work done by
trial judges in these cases. The record revealed, and the trial court expressly
acknowledged, that mother and child had a loving relationship. But the court found the
benefit of continuing the relationship was not enough to overcome the disruption it would
create in his prospective adoptive home. In light of Caden C., which was handed down
after the juvenile court’s ruling, Mother appeals this judgment, concerned the court was
improperly considering her personal struggles in making its determination. We find the
ruling does not conflict with Caden C. and was supported by substantial evidence; thus,
we affirm.
1 All further statutory references are to the Welfare and Institutions Code.
2
FACTS
On February 21, 2019, the Orange County Social Services Agency (SSA)
filed an application for a protective custody warrant to remove Wyatt B., then five years
old, from the custody of his parents, Stephanie S. (Mother) and Thomas B. (Father). SSA
had received a referral on February 8, 2019, indicating the child was wandering outside
alone late at night. Mother had left the child in the care of her roommate, who had
“passed out drunk on the couch,” and the child had been able to slip outside to look for
her.
Mother reportedly often left Wyatt unsupervised. Sometimes she would
leave him with her roommate, who drank frequently, and other times, she would be
unable to supervise him herself. Mother had a substance abuse problem, including
methamphetamine, opiates, and marijuana, and Wyatt had lived a very transient lifestyle
in her care as a result of her issues, drifting from place to place, sometimes camping
outside. At the time of the referral, father’s whereabouts were unknown. 2
When Mother and Father were together, SSA received 13 referrals about
the family, three of them substantiated as to Wyatt. 3 The referrals were for domestic
violence between the couple, including one incident in which Wyatt was in Father’s
arms, as well as substance abuse. 4 The family had been offered voluntary family services
in 2016, but neither Mother nor Father took advantage of those services, and they were
terminated in July 2016.
The protective custody warrant issued for Wyatt, and he was ordered
detained on February 26, 2019. On the day he was taken into custody, he reported he did
not always have enough food while living with Mother, and he would eat paper when he
2 SSA was eventually able to locate Father in the men’s central jail in Santa Ana. He remained
incarcerated throughout the proceedings.
3 Mother has an older daughter who lived with them for a time. The maternal grandmother obtained
legal guardianship over her.
4 Father had an active restraining order protecting him from Mother which was set to expire on
December 19, 2019.
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had no food. Nevertheless, he felt she was a special person in his life and felt safe with
her.
A jurisdictional and dispositional hearing was set for April 10, 2019. Wyatt
was placed with foster parents and Mother was given eight hours of supervised visitation
per week.
Mother continually seemed to ask for help in obtaining treatment for her
substance abuse problems but would ultimately fail to follow through. She was denied
admission into one program because she was still using. She walked out of another
residential treatment program after one week. She refused to undergo court-ordered drug
testing, and would not commit to engaging in reunification services. She felt her
previous participation in services in 2009 was sufficient. Social workers were concerned
Mother was putting other personal priorities ahead of addressing her case plan.
Despite this, SSA told the juvenile court it wanted to continue trying to
engage Mother in services to help her reunify with Wyatt because she had maintained
visits with him. At the jurisdictional hearing, Mother pleaded no contest to the
allegations in the dependency petition, and the court ordered continued placement in
foster care with a six-month prepermanency planning review to take place in October
2019.
SSA filed a status review report on October 18, 2019, indicating Wyatt had
been placed with his paternal great aunt, Valerie W., in May 2019. Mother was homeless
by this time so social workers had difficulty contacting her. Then, in August 2019, she
was taken into custody on misdemeanor drug charges.
She was not engaging in services but was still attending her visitation,
although Valerie usually had to initiate visits. The social worker observed during one
visit that Mother appeared somewhat childlike in her demeanor. Wyatt looked forward to
seeing her and did not display any distress about visits, but Mother was making very little
or no progress with her issues.
4
Meanwhile, concerns were brewing about Wyatt’s placement with Valerie.
Valerie had never been a certain candidate for placement as she had indicated she was
unsure about having her grand-nephew permanently. In July 2020 during a visit, Mother
was able to make off with Wyatt when Valerie’s attention was elsewhere. Mother was
eventually apprehended by police and charged with felony child stealing. A three-year
criminal protective order was entered, prohibiting her from having any contact with
Wyatt. Mother claimed she absconded with Wyatt because she was protecting him from
physical discipline imposed by Valerie. After Mother’s arrest, Wyatt was placed in
temporary protective custody pending a new placement. 5
The court terminated reunification services and set a selection and
implementation hearing under section 366.26 for December 15, 2020. By this time,
Wyatt was with foster parents, Hope and Jonathan. Even though he was doing well with
them, Hope and Jonathan were already in the process of adopting another child, and
could not commit to permanency. Therefore, a new foster family was assessed and Wyatt
was permitted to meet with them.
In October 2020, the criminal protective order against Mother was modified
to allow her visitation with Wyatt consistent with rulings in the dependency case. The
first time Wyatt and Mother visited after that, he jumped into her arms and they held each
other for a long time. Some visits were very positive, with Mother bringing him gifts.
But Mother was involved in a motorcycle accident at some point which left her
temporarily non-ambulatory, and she came to some visits in a wheelchair. This situation
made her understandably more emotional at one visit. At another visit, one of the foster
parents was present and witnessed Mother failing to observe COVID-19 protocols and
being aggressive.
5 SSA received a child abuse referral about Valerie shortly after the July 2020 incident. It was
reported Valerie spanked Wyatt three times during the visit with Mother and SSA made the decision not to return
him to Valerie’s care.
5
The selection and implementation hearing began on December 15, 2020.
The juvenile court deemed Wyatt adoptable and ordered SSA to make efforts to locate an
appropriate adoptive family. It set another hearing on the matter for March 2021.
In late December 2020, Wyatt was placed with a prospective adoptive
parent. After this, the assigned social worker noticed he was more distant with Mother at
visits, one time responding “Okay” when she told him she loved him. Wyatt indicated a
desire to be adopted by the prospective adoptive parent and had quickly created a very
positive relationship with the new family.
But as the time grew closer for a decision to be made as to whether
Mother’s parental rights would be terminated, Wyatt began to act out. He had had
several positive visits with Mother in which she had brought science kits and other
educational activities for them to do together. Then in late February, the foster parent
said Wyatt had some behavioral difficulties in school, around the time the social worker
and his attorney had been to the foster parent’s home for a visit. She was concerned that
visits with Mother were impacting Wyatt’s ability to assimilate into her home.
When the selection and implementation hearing continued, Father testified
from prison that Wyatt and Mother had a close bond and Wyatt had slept with her from
birth. Mother subpoenaed Wyatt to testify about their relationship but the juvenile court
felt it would be unnecessarily stressful for the child when the SSA reports documented
his positive and loving feelings for his mother.
Mother then testified. She said she had been homeless for two years prior
to Wyatt’s removal, and was unable to provide the kind of home for Wyatt she wished to
provide. Yet she still felt she was a good mother in her own way: “I’m not a good
provider of the house. I’m a good provider of a home. There’s some fundamental things
that I guess I lack. Loving him [Wyatt] wasn’t one of them.” She felt the foster father
was leery of her and made Wyatt more guarded in his conversations with her.
6
In a ruling from the bench, the juvenile court terminated both Mother’s and
Father’s parental rights, finding the parental benefit exception did not apply. While the
Mother had an adequate number of visits, visits were initially inconsistent and then, the
court noted, she absconded with Wyatt. As for what the juvenile court called the “second
and third prongs of the analysis,” Mother’s positive interactions with Wyatt did not
outweigh the benefits to him of having a stable adoptive home. The court was cognizant
of Wyatt’s loving feelings toward Mother, but concluded this was not enough to invoke
the exception. Balancing the prospective benefits of maintaining Mother’s relationship
with Wyatt against the security of his new home and life, the court felt it was in Wyatt’s
best interest to terminate the parental rights of Mother and Father. It ordered adoption as
the permanent plan. Mother and Father were given the opportunity to have goodbye
visits with Wyatt and write him letters expressing their feelings toward him.
DISCUSSION
Mother contends the juvenile court erred for two reasons. First, she says it
made an error of law – it considered her failure to reunify with Wyatt in deciding whether
to apply the parental benefit exception; a consideration later found in Caden C. to be
improper. Second, she argues, substantial evidence does not support the order
terminating her parental rights. We must disagree on both counts.
Caden C. clarified that we must undertake a hybrid standard of review in
cases involving the parental benefit exception. A “substantial evidence standard of
review applies to the first two elements” of the analysis – that is, whether the parent has
maintained regular visitation and contact and whether continuing the relationship would
benefit the child. (Caden C., supra, 11 Cal.5th at pp. 639-640.) The third element
involves a mixed standard of review. Factual determinations underpinning whether
termination would be detrimental are “properly reviewed for substantial evidence.” (Id.
at p. 640.) But the trial court’s ultimate assessment and weighing of detriment is subject
to abuse of discretion review. (Ibid.)
7
In addition to clarifying the standard of review for parental benefit
exception cases, Caden C. held a parent “need not show that they are ‘actively involved
in maintaining their sobriety or complying substantially with their case plan’ [citation] to
establish the exception.” (Id. at p. 637.) The high court disapproved cases holding to the
contrary, such as In re Noah G. (2016) 247 Cal.App.4th 1292, 1304 (Noah G.). (Caden
C., supra, 11 Cal.5th at p. 637, fn. 6.) Mother points out the trial court stated at one point
on the record it was “relying on” Noah G. in balancing the beneficial parent relationship
against the security of moving forward with adoption. Additionally, she notes the trial
court thought her efforts of late to occupy a maternal role for Wyatt “fall within the
category of really too little, too late given the long history of this case[.]” She contends
the trial court was holding her failure to complete her case plan against her, which she
believes Caden C. prohibits. To properly evaluate this argument, some discussion of
Noah G. and Caden C., particularly how they intersect, is required.
In Noah G., a mother’s parental rights were terminated after she failed, like
Mother here, to engage in drug treatment services. There was evidence in the record the
children were bonded and had a loving relationship with their parents and maternal
family. (Noah G., supra, 247 Cal.App.4th at p. 1301.) However, the mother failed “to
show her beneficial relationship with the children would outweigh the well-being they
would gain in a permanent home with the[ir] maternal grandmother.” (Ibid.) The mother
did not exhibit parental tendencies such as taking the children for speech therapy and
tutoring. The maternal grandmother who wished to adopt them occupied more of that
role. She made medical decisions for them, attended to their educational needs, and even
took one child to the hospital and stayed with him during treatment. The mother’s visits
with the children were monitored, and she was grateful the grandmother could provide
structure in the kids’ lives. (Id. at pp. 1301-1302.) In addition, the Noah G. court felt it
was appropriate for the juvenile court to consider the mother’s failure to resolve the
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issues that led to the dependency in its beneficial relationship and detriment analysis. (Id.
at p. 1302.)
Caden C. only disapproved the latter aspect of the Noah G. opinion; it
disapproved putting any burden on the parent to show active involvement in or
substantial compliance with her case plan to establish the parental benefit exception.
(Caden C., supra, 11 Cal.5th at p. 637.) But Caden C. recognized that “issues such as
those that led to dependency often prove relevant to the application of the exception” to
the extent “they inform the specific questions before the court: would the child benefit
from continuing the relationship and be harmed, on balance, by losing it?” (Id. at pp.
637-638.) In some cases, a parent’s failure to address those issues could have a negative
effect on the relationship. And on the other hand, a parent’s efforts to ameliorate those
issues could positively impact the relationship. (Ibid.) Thus, by no means was Caden C.
suggesting a juvenile court may never consider a parent’s failure to address issues leading
to dependency. To the contrary, such considerations are permissible, but only when
relevant to the three-pronged analysis the court must make. And Noah G. was
disapproved only to the extent it allowed such considerations to drive a juvenile court’s
analysis.
Here, the juvenile court was clearly relying on Noah G. when it balanced
the beneficial relationship between Wyatt and Mother and the benefits of a stable
adoptive home; this was the context in which it mentioned Noah G. Like the mother in
Noah G., Mother here was not occupying key aspects of a parental role. She never
attended medical appointments and expressed little interest in making educational
decisions for Wyatt. Wyatt’s foster mother seemed to prioritize him in her life,
something Mother had been unable to do for years. Mother described the reunification
period as a “break” from her responsibilities. Observers remarked that she often acted as
more of a peer to Wyatt than a parent.
9
Substantial evidence supported the decision terminating Mother’s parental
rights in our view. Despite a few hiccups, especially around the time of the section
366.26 hearing, Wyatt was acclimating well to his prospective adoptive home and
bonding to his adoptive family. He was doing well in school despite being diagnosed
with Attention Deficit Hyperactive Disorder and other behavioral issues in May 2020.
His prospective adoptive parents had earnestly reflected and reached the conclusion they
could make a positive impact on Wyatt’s life and wanted to be a family. And while
Mother clearly loved her son, she seemed to blame him for the dependency case. During
a video visit on December 16, 2020, SSA reported Mother became emotional and said if
Wyatt had not gone to the next door neighbor’s house back in February 2019, they would
not be in their present situation. During her testimony at the hearing, Mother denied she
was trying to blame Wyatt, but did not deny making the statement reported, and the trial
court was entitled to consider Mother’s tendency to talk to Wyatt in this way a potential
detriment that could undermine his adoptive placement.
We also note there was friction between Mother and the prospective
adoptive parents, exemplified by the way the prospective adoptive mother, shortly after
Wyatt’s school outburst, described his visits with mother as “Disneyland visits” which
were problematic given their structured lifestyle. While the prospective adoptive mother
later admitted she felt “bad” for saying this, the comment shows the potential for
significant disruption to Wyatt’s new life, and significant conflict between his biological
mother and his adoptive parents, if he were to continue contact with mother.
Though we affirm the juvenile court’s conclusion, we are nonetheless
painfully aware of the emotional weight of our decision. We do not mean to question
Mother’s or Father’s love for Wyatt. But our duty – as was the trial court’s – is to try to
protect Wyatt’s best interests. He needs and deserves a chance to move on and move
10
forward. We cannot find an abuse of discretion in the trial court’s decision that, as
difficult and heart-wrenching as it is and will be, cutting ties with Mother is the best way
for him to do that.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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