In re J.M. CA4/2

Filed 5/12/21 In re J.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 J.M. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E076161
Plaintiff and Respondent, (Super. Ct. Nos. J277011, J277012
& J277013)
v.
OPINION
A.T. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant
and Appellant, A.T.
Neale B. Gold under appointment by the Court of Appeal, for Defendant and
Appellant, T.M.
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Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy
County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
In separate appeals, A.T. (Mother) and M.T. (Father) (Parents) appeal from a
juvenile court order terminating their parental rights to Je. (born in 2013), Ji. (born in
2015), and Ja. (born in 2016). The children were ordered removed from their parents’
care and declared dependents of the court based on allegations Parents’ failed to protect
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the children and provide support (Welf. & Inst.Code, § 300, subds. (b) & (g)).
Following a contested section 366.26 hearing, the juvenile court ordered Parents’ parental
rights to the children terminated.
Parents argue the juvenile court erred in denying the parental relationship
exception to adoption (§ 366.26 (c)(1)(B)(i)) and terminating their parental rights.
Parents join in each other’s arguments to the extent they are relevant to each other. We
reject Parents’ contentions and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
1
Unless otherwise noted, all statutory references are to the Welfare and
Institutions Code.
2
From the time of Ji.’s birth in 2015, until July 3, 2018, Parents lived together with
the children. After a verbal argument between Parents on July 3, 2018, Mother and the
children moved out of the family home.
On July 13, 2018, Mother dropped off the children at her daycare provider’s home.
She was expected to pick up the children over the weekend, but failed to do so. On July
17, 2018, the family came to the attention of San Bernardino County Children and Family
Services (CFS) when it received an immediate response referral alleging caretaker
incapacity/absence and general neglect of the children.
During CFS’s investigation, the children’s maternal grandmother (MGM) reported
Mother had called earlier that day and said she had been arrested and incarcerated for
solicitation (prostitution), and her handler (pimp), Mr. Fresh, was holding the children
hostage to coerce Mother to continue earning money for him. MGM learned later that
day that Mr. Fresh had dropped off the children at Mother’s daycare, which was where
law enforcement found them. MGM told CFS that Father was Ja.’s biological father. Je.
had a different father, and Ji.’s father was unknown. The location of the children’s
fathers were also unknown. Because neither Mother nor Father was available to take the
children, CFS temporarily detained the children under exigent circumstances and placed
them in foster care.
On July 18, 2018, CFS contacted Father by telephone and notified him of the
detention hearing. He was unaware Mother was in custody and denied knowing Mother
was soliciting. He told the CFS social worker that all he knew was that Mother “‘left
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with the kids, got into some things, and got the kids taken away; this has nothing to do
with me.’” Father said he planned to protect the children by keeping them in his custody
and telling Mother, if she showed up, that she could not see them or he would call CFS.
On July 19, 2018, CFS filed a section 300 petition under subdivisions (b) (failure
to protect) and (g) (no provision for support) on behalf of the children. CFS alleged the
children were at risk because of Mother’s unsafe lifestyle and incarceration, and because
she left the children with an inappropriate caretaker. CFS also alleged the children’s
fathers had failed to provide support and protection for the children, and Je. and Ji.’s
fathers’ whereabouts were unknown.
Both Mother and Father appeared at the detention hearing the following day.
Father, through his attorney, informed the court he was the biological father of Ja. and
also the presumed father of Ji., because he raised the child since birth. Mother informed
the court that she and Father did not marry. She further confirmed that Father was Ja.’s
biological father, he was present at Ja.’s birth, and he was named on Ja.’s birth certificate.
Mother stated that Father was not Ji.’s biological father. Her father’s name was not on
her birth certificate, and Ji. had never met her biological father. Ji. had lived with Father
since her birth and knew him as her only father. Je. also had a different father, who was
present at his birth and was named on Je.’s birth certificate. The children all called
Father “dad.”
The court ordered, assessment of Father’s home in Kern County, where the family
had been living since Ji.’s birth, until Mother moved out with the children. The juvenile
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court ordered the children temporarily detained in CFS’s custody, with supervised weekly
visitation ordered once a week for two hours for both parents. On August 30, 2018, the
children were placed with their paternal grandmother (PGM).
In October 2018, Parents participated in mediation and submitted on jurisdiction
and disposition. During the jurisdiction/disposition hearing, the court sustained the
petition, found Father to be the presumed father of Ji. and Ja., and ordered reunification
services for Parents, Parents to receive supervised visitation once a week for two hours,
and the children to remain with PGM.
CFS reported in its six-month status review report filed on April 9, 2019, that
Mother was participating in some services. Father had not attempted to participate in any
of his services. He informed the social worker that he did not have time to do anything
on the case plan and felt he should not have to because he did not do anything wrong. He
stated Mother was entirely at fault for the dependency case. CFS further reported that the
children were doing well in PGM’s home and Parents visited them weekly. The children
were excited to see Parents during visits, during which Parents interacted appropriately
with the children.
At the six-month status review hearing on April 9, 2019, the court terminated
Father’s reunification services. The court continued Mother’s reunification services. The
court ordered that supervised visitation for Parents continue once a week for two hours.
CFS reported in its status report filed on August 19, 2019, that on May 25, 2019,
Mother was arrested for theft-related charges. She was incarcerated from May 25 until
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July 31, 2019. Upon her release, Mother was placed on probation for five years. Mother
told CFS she had consistently visited the children, with the exception of when she was
incarcerated. CFS recommended terminating Mother’s reunification services and setting
a section 366.26 hearing (.26 hearing). CFS believed it was unlikely the children would
be returned to Mother. There was a lack of proof she had participated in her case plan
and a gap in visitation while she was incarcerated. Mother also did not have stable
employment or housing.
PGM reported that Father attempted to visit the children weekly but at times his
work schedule did not allow him to do so. Father failed to maintain contact with CFS.
The children reportedly were doing well in PGM’s care and were closely bonded to her.
They appeared safe, stable, and happy. The social worker concluded it would be
detrimental to the children to remove them from PGM. PGM was willing to provide
permanency for the children as their guardian or by adoption.
On October 15, 2019, CFS filed a supplemental report stating that on October 10,
2019, PGM told CFS she was willing to adopt the children if reunification failed. She
also stated she was willing to maintain contact between the children, Mother, and the
maternal relatives. CFS reported that the social worker told Mother it appeared Mother
did not benefit from services because Mother was rearrested. Mother responded it was
not the first or last mistake she would make, and objected to CFS holding her accountable
for everything in the future. Mother stated she believed CFS had incorrectly alleged that
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her children were removed because she had made inappropriate, unsafe arrangements for
the children’s care and provisions.
Mother reported she had completed a 10-week parenting program, was employed
working security for various events, and was living in an apartment in Los Angeles.
Mother said she was willing to continue engaging in reunification services. CFS reported
it was concerned Mother continued to minimize the concerns that brought the family to
CFS’s attention.
During the 12-month review hearing on November 7, 2019, the court terminated
Mother’s reunification services and set a .26 hearing. The court maintained Parents’
supervised visitation as previously ordered.
CFS reported in the .26 hearing report filed on February 27, 2020, that the children
were developmentally on target and there were no concerns regarding their mental or
physical health. Twice a month the children had been visiting Mother and MGM. The
visits went well. Mother also maintained telephone contact with the children during the
weeks she did not visit them. Father also had been visiting the children every other week.
The children enjoyed their visits with Parents. PGM was willing to continue facilitating
visits with Parents and other relatives.
CFS further reported that since the children’s placement with PGM in August
2018, the children had developed a strong attachment with PGM and her family. The
children were comfortable in her care and viewed PGM as their parental figure. PGM
had known Father’s biological son, Ja., all of his life and had known Ji. since she was six
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months old. PGM had known Je. since he was a year old. At one point, the children and
Parents had lived with PGM for four months. Je. and Ji. stated they wanted to continue
living with PGM. PGM wished to adopt the children. She provided them with a
structured, nurturing, and stable environment for over two years.
At the contested .26 hearing on November 19, 2020, Mother objected to PGM
adopting the children and urged the court to apply the parental relationship exception to
adoption. She believed adoption would be detrimental to the children. Mother asserted
the children were happy to see her when she arrived for visits, and were upset and cried
when the visits ended. The children called her and Father “Mom” and “Dad,” and called
PGM “granny.” Mother acknowledged that the children’s placement with PGM was
“good,” because the children were well taken care of and the children were bonded to
PGM.
CFS urged the court to terminate parental rights. The children’s counsel also
stated adoption was appropriate. Mother’s counsel requested a lesser permanent plan
because she had consistently visited the children. Father’s counsel also urged a lesser
permanent plan and noted Father had a very strong relationship with the children.
After hearing oral argument and considering the evidence, including Mother’s
testimony, the juvenile court found Parents had demonstrated they had met the first prong
of the parental relationship exception to adoption by consistently visiting the children.
However, the juvenile court found Parents had not met the second prong, which required
that “the parents must occupy a parental role and not just be a friendly visitor.” In
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addition, the court found that the benefits of adoption outweighed the benefits of
maintaining a parent-child relationship. The court explained that Parents “do not occupy
a parental role and have not for quite some time.” The juvenile court therefore
terminated parental rights and freed the children for adoption. Parents appeal the
November 19, 2020 order terminating their parental rights.
III.
PARENT RELATIONSHIP EXCEPTION
Parents contend the juvenile court erred in not applying the parental relationship
exception to adoption. (§ 366.26 (c)(1)(B)(i)) We disagree.
A. Law Regarding the Parental Relationship Exception
Termination of parental rights and adoption must normally be ordered if the
juvenile court finds a child is adoptable unless the court finds “a compelling reason for
determining that termination would be detrimental to the child due to one or more of the
following circumstances: [¶] (i) 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).) “[T]he burden is on the party seeking to establish the
existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that
evidence.” (In re Megan S. (2002) 104 Cal.App.4th 247, 252.)
“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
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be detrimental to the child.” (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; accord,
In re E.T. (2018) 31 Cal.App.5th 68, 76; In re Caden C. (2019) 34 Cal.App.5th 87, 106-
107, rev. granted July 24, 2019 (S255839).) “‘[E]valuating the factual basis for an
exercise of discretion is similar to analyzing the sufficiency of the evidence for the
ruling. . . . Broad deference must be shown to the trial judge. The reviewing court
should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in
support of the trial court’s action, no judge could reasonably have made the order that he
[or she] did.’ . . .”’” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
B. Parents’ Relationship With the Children
Parents contend the juvenile court erred in rejecting the parental relationship
exception. We disagree. We conclude substantial evidence supported the juvenile
court’s findings there was not a beneficial parental relationship, and there was no abuse
of discretion in the court determining that termination would not be detrimental.
It is undisputed that Parents met the first prong of the parental relationship
exception of regularly visiting the children. With the exception of when Mother was
incarcerated in 2019, Parents regularly visited the children, initially once a week for two
hours, with visits supervised. After termination of services, visits remained supervised
and were generally every other week for two hours.
Parents, however, have not demonstrated they met the second prong of the
parental relationship exception of holding a beneficial parental role in the children’s lives
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at the time of the section 366.26 hearing. Parents also have not demonstrated that the
children would suffer any significant detriment from terminating parental rights.
“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. (2002) 97 Cal.App.4th
454, 467.) “Interaction between natural parent and child will always confer some
incidental benefit to the child. The significant attachment from child to parent results
from the adult’s attention to the child’s needs for physical care, nourishment, comfort,
affection and stimulation. [Citation.] The relationship arises from day-to-day interaction,
companionship and shared experiences. [Citation.] The exception applies only where the
court finds regular visits and contact have continued or developed a significant, positive,
emotional attachment from child to parent.” (In re Autumn H. (1994) 27 Cal.App.4th
567, 575.)
“Evidence of ‘frequent and loving contact’ is not sufficient to establish the
existence of a beneficial parental relationship.” (In re Bailey J. (2010) 189 Cal.App.4th
1308, 1315-1316; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) Once a
dependency case reaches the permanency planning stage, the statutory presumption is
that termination is in an adoptable child’s best interests and, therefore, not detrimental.
(§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.)
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Parents argue that under a plan of legal guardianship, the children’s relationship
with Parents would be preserved while maintaining the children’s stability and
permanency in PGM’s home. They assert the trial court should have applied the parental
relationship exception to adoption based on the following reasons: (1) the children had a
loving, positive relationship with Parents; (2) PGM is committed to maintaining the
children’s relationship with Parents; (3) PGM is committed to caring for the children; and
(4) there is no evidence guardianship would jeopardize their placement with her. Parents
contend the children would benefit from a permanent plan of guardianship by being
allowed to maintain their existing relationship with Parents while also enjoying the
benefits of a stable environment with PGM.
We begin with the well-established premise that adoption is the preferred
permanent plan. (§ 366.26, subd. (c)(1); In re K.H. (2011) 201 Cal.App.4th 406, 414.)
Termination of parental rights and adoption must thus normally be ordered if the juvenile
court finds a child is adoptable unless the court finds a compelling reason for determining
that termination would be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).) Here,
the trial court reasonably found that Parents’ relationship with the children did not
provide a compelling reason for determining that termination would be detrimental to the
children. There was insufficient evidence of a significant, beneficial parental bond,
particularly as to the youngest child. There also was little, if any, evidence the children
would suffer detriment from the court terminating parental rights. Thus, any detriment
from not continuing their relationship with Parents was outweighed by the benefits of
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security and the sense of belonging that the prospective adoptive parent, PGM, would
confer through adoption. (In re E.T., supra, 31 Cal.App.5th at p. 77.)
The juvenile court reasonably found that Parents’ frequent contact with the
children was not sufficient to establish a beneficial parental relationship exception. (In re
Marcelo B. (2012) 209 Cal.App.4th 635, 645; In re K.P. (2012) 203 Cal.App.4th 614,
621-622.) Although Parents regularly visited the children and maintained a relationship
with them, the juvenile court reasonably found that Parents’ relationship with the children
during the dependency proceedings was that of a friendly visitor, rather than that of a
parent. They had fun, enjoyable visits together and the children called Mother and
Father, “Mom” and “Dad.” However, Parents did not hold a parental role, disciplining
the children and providing for their everyday needs. Parents had not lived with the
children for over two years, since the inception of the juvenile dependency proceedings,
and their visits had remained short and supervised. In addition, when the children were
removed from Parents, they were young. Ja. was only a year old, Ji. was three years old,
and Je. was four years old. With the exception of possibly Je., the children likely had
very limited memory, if any, of living with Parents.
Father did not hold a parental role even before the children’s removal. He had lost
contact with his children, such that he was not available to take the children when they
were removed from Mother. Furthermore, because he had not stayed in touch, he was
unaware of Mother’s failure to care appropriately for the children and protect them.
Father also demonstrated minimal commitment to reunifying with the children. His
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reunification services were terminated after just six months because he failed to make any
progress in complying with his case plan. He conveyed to CFS that he was not
responsible for the children being detained or for the juvenile dependency proceedings.
He therefore felt it was not fair that he should have to comply with his case plan.
On the other hand, PGM had cared for the children for much of their young lives,
serving as a parental figure and providing the children with a stable, nurturing
environment. PGM and the children were closely bonded and the children were
comfortable in her care. The older two children stated they wished to continue living
with PGM. PGM had known all three children from an early age, even before the
juvenile dependency proceedings. PGM was committed to adopting the children. CFS
reported it would be detrimental to remove the children from PGM’s home We thus
conclude there was substantial evidence supporting the trial court’s finding Parents did
not hold a parental relationship with the children when the court terminated parental
rights.
We also conclude the trial court did not abuse its discretion in concluding that
adoption would cause little, if any, detriment to the children. Parents acknowledged they
were unable to take custody of the children. In addition, the prospective adoptive parent,
PGM, had told CFS several times during the dependency proceedings that she was
committed to facilitating the children’s visits with Parents in the future, assuming visits
were appropriate, thus allowing the children’s relationship with Parents to continue.
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The trial court exercised reasonable discretion in concluding that any detrimental
impact on the child from terminating parental rights was outweighed by the benefit to the
children of adoption. Adoption would greatly benefit the children in conferring a sense
of security, stability, and belonging not provided to the same degree as other lesser
permanent placement plans, such as guardianship. Adoption was appropriate based on
substantial evidence demonstrating PGM was committed to providing a nurturing, stable,
loving home for the children, as she had done so throughout much of the children’s lives,
while also allowing Parents to maintain their relationship with the children.
The trial court thus reasonably concluded it was in the children’s best interests to
terminate parental rights and free the children for adoption by PGM. This would ensure
the children would permanently remain in PGM’s loving, nurturing, stable home, which
outweighed any detriment from terminating parental rights rather than placing the
children in a less permanent plan of guardianship.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
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Acting P. J.
FIELDS
J.
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