In re L.W. CA1/2 ( 2021 )

Filed 9/30/21 In re L.W. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re L.W., a Person Coming Under
the Juvenile Court Law.
MARIN COUNTY HEALTH AND
HUMAN SERVICES,
Plaintiff and Respondent,
v. A162234
M.S.,
(Marin County Super. Ct.
Defendant and Appellant. No. JV26821A)
M.S. (Mother), mother of three-year-old L.W., appeals from the juvenile
court’s orders terminating her parental rights and selecting adoption as
L.W.’s permanent plan, pursuant to Welfare and Institutions Code section
366.26.1 On appeal, Mother contends the court abused its discretion when it
found that she had failed to establish the applicability of the parental benefit
exception to adoption. (See § 366.26, subd. (c)(1)(B)(i).) We shall affirm the
juvenile court’s orders.
1
All statutory references are to the Welfare and Institutions Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2019, Marin County Health and Human Service’s
Department of Children and Family Services (Department) filed an original
petition pursuant to subdivisions (b) and (j) of section 300, alleging that then
16-month-old L.W. was at risk of suffering serious physical harm as a result
of Mother’s (1) failure to adequately protect and supervise L.W., and (2)
inability to provide regular care for L.W. due to her extensive substance
abuse history. The petition further alleged that L.W.’s half sibling had been
abused and neglected, and that Mother’s parental rights to him had been
terminated in April 2017. The petition alleged that L.W. was also at
substantial risk due to her father’s (Father) failure to protect and supervise
her.2
In a June 18, 2019 detention report, the social worker reported that the
petition was based on an incident on June 11, in which sheriff’s deputies
arrested Mother for domestic violence and child endangerment after she
reportedly held a knife to her own throat and threw knives at Father while
holding L.W. in her arms. Mother also barricaded herself in her house during
the incident. The social worker further reported that the Marin County
Sheriff’s Office had been called to the parents’ address approximately nine
times in the last year concerning issues that included Mother’s suicidality,
drug use, and verbal disturbances. The Department recommended that the
court order L.W. detained.
At the June 18, 2019 detention hearing, the court ordered L.W.
detained and also ordered supervised visitation.
Father is not a party to this appeal, and he will be discussed only
2
when relevant to any issue raised in Mother’s appeal.
2
In the jurisdiction report filed on July 19, 2019, the social worker
reported that she had met with Mother, who described herself as a “ ‘chronic
relapser’ ” with drugs. Mother denied that she had held or threw knives or
threatened suicide in the incident leading to the petition in the present case.
Mother also said that she never kept drugs in the home, and kept her drug
paraphernalia locked in her car. She admitted to leaving L.W. with Father
for one to three nights at a time when she needed to “blow[] off steam” and
use drugs.
On July 23, 2019, the court continued the jurisdiction hearing to the
following month, for a joint jurisdiction/disposition hearing.
In a disposition report filed on August 15, 2019, the Department
recommended that the court declare L.W. a dependent of the court, order six
months of family reunification services, and adopt a proposed case plan that
would provide Mother with treatment to enable her to maintain sobriety and
address her mental health, and would also provide for regular visitation.
At the August 20, 2019 disposition hearing, Mother submitted on the
Department’s recommendations and the court sustained the petition with
minor amendments, adjudged L.W. a dependent under section 300,
subdivisions (b) and (j), and ordered reunification services and visitation.
In a six-month status review report filed on January 31, 2020, the
Department recommended six more months of reunification services for
Mother because she had made enough progress that there was a substantial
probability that she would reunify with L.W. with six more months of
services. The social worker reported that Mother had successfully completed
an inpatient drug treatment program in September 2019, and had begun
attending an outpatient treatment program in November. Mother had also
consistently attended twice-weekly visits with L.W. during the reporting
3
period and had transitioned from fully supervised visits to check-in visits.
The Department had considered transitioning to unsupervised visits several
times, but each time Mother “would test positive for alcohol, miss tests, be
unreachable by phone or email for 1-3 weeks, and/or once got kicked out of
her intensive outpatient program.” The social worker noted, however, that
Mother never appeared to be under the influence of alcohol during visits, and
that all visits were positive for L.W., with no safety threats.
At the March 10, 2020 six-month status review hearing, Mother
submitted on the Department’s recommendations and the court ordered six
additional months of reunification services.
On June 29, 2020, the Department requested, and the court ordered, a
continuance of the 12-month status review hearing from August 4 to
September 15, based on the Department’s need for additional time to expand
and assess visitation before finalizing a recommendation of family
maintenance services for Mother and L.W.
In a 12-month status review report filed on September 1, 2020, the
Department recommended that the court terminate Mother’s reunification
services and set the matter for a section 366.26 hearing. The social worker
reported that L.W., who had moved into a concurrent foster home on March
7, 2020, was on track developmentally, and had no medical or other major
concerns. L.W. and Mother had continued to “have consistently positive
visits with each other,” and it was clear that Mother loved L.W. and had
shown an ability to apply age appropriate parenting skills. The Department
had therefore transitioned Mother to unsupervised visits with L.W. in late
June. Until July, Mother attended all scheduled visits, except one she missed
due to illness. However, immediately after the Department decided to
transition the visits from check-in to unsupervised, Mother “largely stopped
4
responding to the [social worker], was almost discharged from her
[outpatient] program for missing groups, therapy, and not checking in with
her therapist, and . . . was almost discharged from her sober living home for
leaving for several nights without permission. Additionally, [Mother] started
missing visits with L.W., which she had never done before.” Based on
Mother’s behavior and concerns about her sobriety and/or mental health, the
Department changed the visits back to check-ins. Mother acknowledged her
behavioral changes, but blamed them on “ ‘self-sabotaging.’ ” She denied that
she had relapsed.
In a September 10, 2020 first addendum to the 12-month status review
report, the social worker reported that on September 5, Mother had been
arrested for misdemeanor battery following an incident of domestic violence
with Father. Father had reported that Mother appeared to be under the
influence of drugs at the time of the incident, and he suspected she had
relapsed months earlier. Mother’s sponsor, who visited Mother in jail on
September 8, acknowledged to the social worker that she now believed
Mother had been using drugs for several months.
In an October 1, 2020 second addendum to the 12-month status review
report, the social worker reported that Mother, who had been discharged
from her sober living home before her arrest, had begun living with sober
friends after her release from jail. Her outpatient treatment program had
discharged her following her relapse. Mother had attended only two visits
with L.W. in the month of September, and “expressed a lot of guilt around
her relapse and fear around the impact it could have on her reunification
with” L.W. Mother’s sponsor, with whom Mother was checking in daily,
reported that Mother was experiencing significant mental health symptoms,
including depression, anxiety, grief, and suicidal ideation.
5
At the October 7, 2020, 12-month review hearing, the court found that
Mother had made minimal progress toward alleviating or mitigating the
causes necessitating placement and that L.W. could not be returned safely to
her care. It therefore terminated her reunification services and scheduled a
section 366.26 selection and implementation hearing.
In its section 366.26 report filed on January 12, 2021, the Department
recommended that the court terminate both parents’ parental rights, and
make adoption L.W.’s permanent plan. The social worker reported on
Mother’s visitation throughout the case. Specifically, between June 14, 2019
and February 17, 2020, Mother attended 59 out of 62 scheduled visits.
Between February 18 and September 14, 2020, Mother attended 46 out of 48
scheduled visits. Between September 15 and December 29, 2020, after
Mother’s visits had been reduced to once or twice a month, Mother attended
seven out of eight scheduled visits; however, no visits had been scheduled
from November 3 to December 3 because Mother was not in contact with the
Department.
In a February 18, 2021 first addendum to the section 336.26 report, the
social worker reported that Mother had attended two out of three scheduled
visits in the previous month. The Department had found that L.W., who was
now three years old, was generally adoptable. She was “a charming and
playful child” who was meeting all developmental milestones. She had “a
loving and close relationship” with her prospective adoptive mother, who was
“committed to [L.W.’s] well-being and love[d] her unconditionally.” The social
worker noted that L.W. had not been cared for by Mother for over half of her
life, and opined that their relationship, which was “friendly but not parental
in nature,” did “not promote [L.W.’s] well-being to such a degree as to
outweigh the well-being she would gain in an adoptive home.”
6
The section 366.26 hearing took place on February 23, 2021. Mother
testified that she and L.W. have a “special bond” and that L.W. would get
excited when she saw Mother at the start of visits and would run up to her
and jump into her arms. L.W. had called Mother “mommy” since she was 18
months old. They were very affectionate during visits and L.W. did not want
the visits to end. Mother believed that it would be “cruel” to L.W. for her to
suddenly not have Mother in her life, and that, because of their bond, it
would not be in L.W.’s best interest to terminate Mother’s parental rights.
At the conclusion of the section 366.26 hearing, the court found that
L.W. was adoptable and that the parental benefit exception to adoption did
not apply. The court terminated both parents’ parental rights and ordered
adoption as L.W.’s permanent plan.
On March 11, 2021, Mother filed a notice of appeal.
DISCUSSION
Mother contends the court abused its discretion when it found that she
had failed to establish the applicability of the parental benefit exception to
adoption.
The purpose of the section 366.26 hearing is to select a permanent plan
for the child after reunification efforts have failed. (§ 366.26, subd. (b); In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) When the court finds that a
child is likely to be adopted if parental rights are terminated, it must select
adoption as the permanent plan unless the parent shows, pursuant to one of
the statutorily specified exceptions, “compelling reason[s] for determining
that termination would be detrimental to the child . . . .” (§ 366.26, subd.
(c)(1)(B); see Caden C., at pp. 630–631.) “ ‘[T]he statutory exceptions merely
permit the court, in exceptional circumstances [citation], to choose an option
other than the norm, which remains adoption.’ [Citation.]” (Id. at p. 631.)
7
At issue here is the parental benefit exception, which applies if the
juvenile court finds by clear and convincing evidence that 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).) In
Caden C., our Supreme Court described the “three elements the parent must
prove to establish the exception: (1) regular visitation and contact, and (2) a
relationship, the continuation of which would benefit the child such that (3)
the termination of parental rights would be detrimental to the child.” (Caden
C., supra, 11 Cal.5th at p. 631.)
In Caden C., the court also clarified the standards applicable to the
review of a trial court’s determination as to whether one of the statutory
exceptions to adoption applies. (Caden C., supra, 11 Cal.5th at p. 639.) The
court explained that the substantial evidence standard of review applies to
the first two elements, and that, although the third element also has a
factual component, “the ultimate decision—whether termination of parental
rights would be detrimental to the child due to the child’s relationship with
[her] parent—is discretionary and properly reviewed for an abuse of
discretion.” (Id. at p. 640.)3
In the present case, Mother does not dispute that L.W. is adoptable or
that her prospective adoptive parent intends to adopt her. She argues only
that the court abused its discretion when it found that the parental benefit
exception did not apply.
3
The Caden C. court also observed, however, that “where, as with the
parental-benefit exception, ‘the appellate court will be evaluating the factual
basis for an exercise of discretion, there likely will be no practical difference
in the application of the two standards.’ [Citations.]” (Caden C., supra,
11 Cal.5th at p. 641.)
8
At the conclusion of the section 366.26 hearing, the court addressed
whether Mother had demonstrated the three elements necessary to prove
applicability of the parental benefit exception. First, with respect to
visitation, the court found that Mother’s visits with L.W. were “frequent and
continuous” between June 2019 and September 2020. “[H]owever, in
September of 2020, Mother stopped visiting, she stopped confirming her
visits. She stopped responding to the social worker, there were no visits at
all for the month of November, and no contact form Mother during that time.
Between September of 2020 and December of 2020, there were only seven
visits, and since that time, . . . they reversed to supervised check-in visits,
and they remained at this very limited amount due to that inconsistency. So,
while Mother had very frequent and continuous contact at the beginning, it
has not been the case since last fall.”
Mother acknowledges that her relapse led to decreased visitation near
the end of the dependency, but emphasizes that “the bond between them as
demonstrated by frequent visits throughout the reunification period and the
parent-child behaviors cannot be denied or discounted.” Even assuming, as
Mother claims, that her frequent visitation for most of the dependency period
is sufficient to satisfy the first element of the parental benefit exception, the
court also found that Mother did not have a significant parental bond with
L.W. such that L.W. would benefit from continuing the relationship, noting
that “[i]nteraction between a parent and child will always confer come
incidental benefit.” Substantial evidence supports the court’s finding as to
this element. (See Caden C., supra, 11 Cal.5th at pp. 639–640.)
We recognize the love between Mother and L.W., as shown by the
affection and enjoyment both demonstrated during visits. We also recognize
Mother’s patient and skilled supervision of L.W. during those visits, and her
9
openness to parenting suggestions. Nevertheless, considering that, at the
time of the section 366.26 hearing, L.W. was only three years old and had
been out of Mother’s custody for over half of her young life, substantial
evidence supports the court’s finding that Mother had not shown that she
occupied a significant parental role in L.W.’s life. (See Caden C., supra,
11 Cal.5th at p. 632, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 576;
see also In re C.F. (2011) 193 Cal.App.4th 549, 555 [“A parent must show
more than frequent and loving contact or pleasant visits”].)
Finally, even if Mother had demonstrated that L.W. has “a substantial,
positive emotional attachment” to her such that L.W. “would benefit from
continuing the relationship” (Caden C., supra, 11 Cal.5th at p. 636), the court
ultimately concluded it could “not find that the nature of the relationship
described by Mother has risen to the level to overcome the benefits of that
permanency.” We review this determination for abuse of discretion. (See id.
at p. 631.)
In exercising its discretion in each case, the court must “decide[]
whether the harm of severing the relationship outweighs ‘the security and
the sense of belonging a new family would confer.’ [Citation.] ‘If severing the
natural parent/child relationship would deprive the child of a substantial
positive emotional attachment such that,’ even considering the benefits of a
new adoptive home, termination would ‘harm[]’ the child, the court should
not terminate parental rights. [Citation.]” (Caden C., supra, 11 Cal.5th at
p. 633, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, the record reflects that at the time of the section 366.26 hearing,
L.W. had been living with her prospective adoptive parent for almost a year,
which was nearly one-third of her life, and they had a loving, close
relationship. The prospective adoptive parent gave L.W. “a sense of security
10
and reassurance,” and was committed to adopting her. In the circumstances
of this case, we conclude the court acted well within its discretion when it
determined that any potential harm to L.W. from the loss of her relationship
with Mother was outweighed by “ ‘the security and the sense of belonging a
new family would confer.’ ” (Caden C., supra, 11 Cal.5th at p. 633; see
§ 366.26, subd. (c)(1)(B)(i).)
DISPOSITION
The juvenile court’s orders are affirmed.
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_________________________
Kline, P.J.
We Concur:
_________________________
Richman, J.
_________________________
Stewart, J.
In re L.W. (A162234)
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