In re J.A. CA5

Filed 1/11/22 In re J.A. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re J.A. et al., Persons Coming Under the
Juvenile Court Law.
TULARE COUNTY HEALTH AND HUMAN F083051
SERVICES AGENCY,
(Super. Ct. Nos. JJV071685A,
Plaintiff and Respondent, JJV071685B)
v.
OPINION
VICTORIA T.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza,
Judge.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jennifer M. Flores, County Counsel, John A. Rozum and Abel C. Martinez,
Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Victoria T. (mother) challenges the order terminating her parental rights (Welf. &
Inst. Code, § 366.26)1 to her two children. Mother contends the juvenile court erred
when it found that she failed to meet her burden to establish the beneficial parent-child
relationship exception to adoption. We affirm.
STATEMENT OF THE CASE AND FACTS
Background
In June of 2018, mother was admitted to a medical center on a psychiatric
section 5150 hold, reportedly suffering from postpartum depression. Mother feared she
would harm her then 5-month-old child, L.A. A safety plan was put in place for L.A. and
8-year-old J.A. with the children’s father David A. (father) and no other action was taken.
On July 21, 2018, mother returned to the medical center for a second section 5150
evaluation. She had been overly aggressive and vocal and the following day intentionally
poured bleach into father and J.A.’s fish tank, killing their pet fish.
J.A. was taken to a maternal aunt’s home where he was interviewed by a social
worker and reported that his mother had been aggressive, yelling and cussing, and had hit
him several times. He reported an incident in which he was sleeping in a bed when his
mother hit him hard and told him to “get the fuck to his room.” According to J.A.,
mother got angry when she did not take her medication on time. J.A. also reported an
earlier incident in which mother, who was pregnant with L.A. at the time, hit him across
the face, leaving a cut across his face and jaw. J.A. thought mother was trying to be
mean when she killed his fish because she knew he and father loved the fish. J.A.
expressed that he felt safe with mother and father “sometimes” when his mother gets
angry.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
Mother confirmed J.A.’s reports and stated she intended to get back at father when
she killed the fish. She felt bad when she saw J.A.’s face as he watched the fish dying.
The family lived with mother’s parents (maternal grandparents).
When father was interviewed, he expressed some confusion about the earlier
safety plan and admitted there were times when he left mother alone with the children.
At a team meeting at the end of July 2018, it was decided that mother would move out of
the home and the children allowed to stay with father. Reunification services for mother
and family maintenance services for father would be recommended.
Detention
The Tulare County Health and Human Services Agency (agency) filed a
section 300 petition on July 27, 2018, alleging mother’s mental health issues rendered her
incapable of safely parenting her children.
At the July 30, 2018, detention hearing, the children were detained from mother’s
custody and allowed to remain with father. Mother was ordered to receive supervised
visits with the children three times a week for two hours each. Jurisdiction and
disposition were set for September 17, 2018.
Jurisdiction/Disposition
The jurisdiction/disposition report stated that father and children were living with
maternal grandparents. Maternal grandmother reported that mother’s mental health
issues caused her moods to fluctuate rapidly and lash out at any relatives, including
father, trying to help stabilize her. According to maternal grandmother, father supports
mother no matter how angry she becomes. The maternal aunt confirmed that father does
anything mother wants, even when she verbally abuses him. The aunt expressed concern
that mother could injure the children and father would not protect them. The aunt
described mother’s relationship with J.A. as “conflicted.”
Father claimed not to remember the events of the day when mother killed the fish.
He did not believe he had an alcohol abuse issue.
3.
The maternal grandparents sold the home where father and the children lived.
Father planned to move in with his own mother until he could find a home on his own.
Mother was living with a maternal great-aunt and believed she was doing better
since the agency intervened. While she had been in a romantic relationship with father
for 10 years, she no longer wished to be. Mother admitted that she was dependent on
maternal grandmother to mediate disputes with father. The social worker advised mother
to take responsibility for her own relationships. Mother reported that she was diagnosed
with mental illness at age 14 (she was now 27). She journaled to control her emotions
and was receiving mental health counseling and taking medication as prescribed.
On September 11, 2018, maternal grandmother called to notify the social worker
that mother had gotten into an argument with father and cut her arm to cope with her
emotions. She was evaluated for a psychiatric section 5150 hold but did not meet the
criteria and was released.
In evaluating the situation, the social worker noted that, in addition to mother’s
mental health issues, father appeared to have a “co-dependent and dysfunctional
relationship with the mother.”
J.A. was receiving weekly counseling to address the trauma and disruption to his
life.
Mother had been visiting at the agency until supervision was delegated to maternal
grandmother, maternal aunt and maternal great-grandmother. For the most part, visits
were appropriate, although mother had to be redirected at times. Mother was observed to
get frustrated with J.A. when she attempted to help him with his homework. J.A. felt
mother was giving L.A. more attention than him.
Jurisdiction/disposition was held September 17, 2018. Mother waived her right to
a hearing and submitted on the reports. The juvenile court found the petition true and
adopted the proposed finding and orders, removing the children from mother’s custody
4.
and granted her reunification services. The children remained with father under family
maintenance services. A six-month review was set for March 4, 2019.
Six-Month Review
The report prepared for the six-month review recommended that mother receive an
additional six months of services as she was participating in the ordered services. Mother
and father continued in an “off and on” relationship. Mother’s moods continued to be
labile, and her counselor was unwilling to start conjoint counseling with father due to
potential liability issues.
The report noted that father, who was living with the children, sometimes became
overwhelmed and frustrated with the children and once allegedly hit J.A. with a broom.
J.A. now had an individualized education program (IEP) at school and continued
to see a therapist weekly. L.A. was too young for either school or counseling.
At the six-month review held March 4, 2019, the juvenile court followed the
recommendations of the agency and granted mother an additional six months of services.
A 12-month review was set for August 19, 2019.
12-Month Review
The report prepared for the 12-month review attached a report from J.A.’s
therapist that he had been discharged from therapy because father had not followed
through with counseling once school was out for the summer. The agency recommended
that services to mother be continued for an additional six months and that the children
remain in father’s care with family maintenance services.
Father was in the process of moving back into the home the family had previously
lived in prior to the agency’s intervention.
At the 12-month review hearing August 16, 2019, the juvenile court adopted the
recommendations of the agency and granted the social worker discretion to allow mother
to move into the home with father and the children “if deemed appropriate.”
5.
Section 387 Supplemental Petition and Section 342 Subsequent Petition
On September 23, 2019, mother had asked the social worker to “immediately”
visit her at father’s home. Father was not home and the home was cluttered and dirty.
Mother reported that father had been arrested the previous month when he pulled a knife
on somebody during a road rage incident. The children were in the car with him at the
time. In addition, father had been in a car accident and damaged the car. According to
mother, father was minimizing his behaviors in therapy. She further stated that he had
begun drinking to “numb his pain because of his dog being sick.” Father had berated J.A.
Mother played a recording she had made of father yelling and cursing with the children
present. Maternal grandmother picked up J.A. for the weekend as “things were bad.”
When father returned to the house, he admitted the road rage incident but insisted
he did not have anger issues. He denied arguing with mother in front of the children but
agreed to attend an anger management program.
On September 27, 2019, the agency decided to allow mother to move into the
home with father and the children.
On October 16, 2019, J.A. reported to the social worker that his mother and father
yelled at each other a lot and his mother wants father to move out. He also reported that
they do not eat until close to his bedtime. J.A. discussed a safety plan of taking L.A. and
crawling out the window and going to a friend’s house, if necessary, and calling his
grandparents.
On December 4, 2019, J.A. described mother and father fighting with “words,
hands and fists.” According to J.A., the last time they fought, he took L.A. and locked
themselves in his room for their “safety.” J.A. reported that father often drank beer and
he heard that he “ ‘smokes and grows weed.’ ”
When interviewed December 13, 2019, mother denied the children were ever
physically harmed during an incident of domestic violence, but that during the last
6.
“ ‘blow up’ ” she directed J.A. to video record the altercation so she could show it to her
therapist.
In an interview December 17, 2019, father admitted to drinking heavily; mother
admitted to continued severe mental health symptoms, including suicidal ideation.
J.A.’s school reported that he was often tardy and had not eaten breakfast before
arriving. He was very impulsive and recently struck two students, unprovoked. His
behavior was affecting other students in his small group. He was often dirty. Mother
shared J.A. witnessing domestic violence between his parents.
On December 19, 2019, the agency sought a protective custody warrant and on
December 20, 2019, filed both a section 387 supplemental petition and a section 342
subsequent petition, citing father’s alcohol abuse and mother’s inability to protect the
children.
Detention
The children were placed with maternal grandparents and detained by the juvenile
court on December 23, 2019. Mailing address forms submitted by mother and father
indicated that they continued to live together. Jurisdiction/disposition was set for January
31, 2020.
Jurisdiction/Disposition
The jurisdiction/disposition report for the section 342 and section 387 petitions
initially recommended that both mother and father receive six months of reunification
services. The report included a December 4, 2019, referral in which the school reported
that, when informed of J.A.’s behavior at school, mother reported that it may have been
caused by J.A. witnessing domestic violence between mother and father. Mother told the
social worker that she and father would work out their differences by “pushing and
shoving.”
On January 21, 2020, maternal grandmother reported that mother and father
initially visited regularly but were now only visiting the children once a week and would
7.
just wave goodbye when it is time to go. Mother and father would tell the children they
would visit but then not show up as promised.
Prior to the jurisdiction/disposition hearing, the agency filed an addendum report
noting that, by the scheduled date of the hearing, mother would have received 18 months
of reunification services and was not eligible for additional services.
At the jurisdiction/disposition hearing, mother and father submitted on the
petition. The juvenile court found the allegations of the petitions true and placed the
children in out-of-home care. Father was granted services and mother denied services. A
six-month review was scheduled for July 24, 2020.
Six-Month Review
The report prepared for the six-month review recommended that services for
father be terminated, noting mother and father had not visited regularly and father had not
made substantial progress in his case plan.
J.A. was again in mental health counseling to address his exposure to the domestic
violence between mother and father.
Mother and father remained in a relationship and were residing together. Both
were employed. They had court ordered visitation of three times per week for two hours
each visit. Maternal grandmother, who supervised the visits, stated that mother and
father were visiting only once a week for approximately 90 minutes. Of the 60 scheduled
visits, each parent attended 20 visits and missed 40 visits. Because the children were
placed with family, visits were allowed in person even during the Covid-19 pandemic.
Maternal grandmother encouraged father to come even when mother did not, but he did
not want to come without mother.
At the six-month review July 24, 2020, the juvenile court did not follow the
recommendation of the agency and instead extended services to father for an additional
six months. Visits were discussed and mother’s counsel requested that visits be twice per
week. The juvenile court ordered visits of one time per week for mother and father and
8.
ordered the parents to confirm 24 hours in advance whether they would attend, due to the
number of missed visits. They were informed “to attend all scheduled visitation.” A
12-month review was scheduled for January 19, 2021.
12-Month Review Hearing
The report prepared for the 12-month review hearing recommended that services
for father be terminated and a section 366.26 hearing be set with adoption as the
permanent plan. According to the report, father had not made substantial progress in his
case plan and again neither mother nor father had visited regularly.
The report recounted an incident during an August 5, 2020 domestic violence
group Zoom meeting in which mother and father began arguing with each other to the
point where the group session was dismissed so staff could counsel mother and ensure
her safety. Just as law enforcement was about to be called, father left the home.
Maternal grandmother reported that mother and father argued, and that mother
stated father took cocaine for a toothache.
Father reported that, as of September 24, 2020, mother remained in the home and
when her medication “wears out” she starts to become unreasonable and “may get
aggressive.”
J.A., who was now in the fifth grade, was attending school regularly and
completing his assignments. He continued in weekly mental health sessions to assist with
trauma and instability he had experienced. L.A., who was just barely three, was
developing well and was not receiving any remedial services.
Mother and father’s visits continued to be sporadic. Since July of 2020, mother
had missed 36 of 60 visits and father had missed 22 of 60 visits. Maternal grandmother
reported an incident that occurred on July 26, 2020, when mother and father wanted the
children brought to their house for a swim. When the children arrived, the house was
messy and dirty and there was no water in the pool. When this was pointed out, father
became upset and went back into the house. He eventually returned, filled the pool, and
9.
joined the children for a swim. But the entire visit lasted only 45 minutes. Later, mother
called maternal grandmother and reported that she wanted father arrested because they
had gotten into an argument about the pool not being filled.
Maternal grandmother described another 45-minute visit when mother came alone
to spend time with the children. However, mother got very frustrated with J.A., who was
talking to her about his games. Mother told him she did not want to hear the same thing
over and over again and was tired of hearing the same stories. She then went outside and
was on her phone. When she came back inside, mother said she had just quit her job. A
month later, mother stated she found a new job and did not want to be called or texted.
Maternal grandmother offered to take videos of the children and send them to mother.
She also urged father to come without mother, but he never did.
In early September 2020, maternal grandmother reported that mother was being
verbally aggressive and requested that visits be supervised by someone else. Mother also
called the agency and asked that the agency rather than maternal grandmother supervise
the visits. The social worker began the process of moving the visits to the agency.
By late September and early October 2020, father was going to maternal
grandmother’s house and helping J.A. with his homework. However, father then chose to
have friends from out of town stay at his home, which meant he cancelled visits for two
weeks while he self-quarantined due to possible Covid.
On October 8, 2020, mother and maternal grandmother agreed that maternal
grandmother could again supervise visits. Thereafter, mother visited every two weeks.
The CASA filed a report January 15, 2021, relating that J.A. gained weight, which
maternal grandmother believed was due to his depression and disappointment when his
parents said they would visit and did not show up. At times, J.A. would see that his
parents were online, but they would not take his phone calls. When maternal
grandmother reported this to mother and father, mother replied that she was asking for
“patience as she was on medication.” J.A. expressed that, if he and L.A. return home, it
10.
would be his responsibility to care for L.A. He expressed a desire to the CASA that he
wanted to go home to his parents and to see his dog.
At a contested hearing February 26, 2021, J.A. was present with counsel.
According to J.A.’s counsel, J.A. expressed that visits were important to him, but that
mother only visited if she is in a good state of mind and father only visits when mother
does. The CASA testified that J.A. was “pretty tightlipped” about visits that had
occurred, saying only that they were “good.”
The juvenile court noted that, in order to continue services to 18 months, father
would need to have visited consistently and regularly, which he had not done, noting he
had attended only 38 out of 60 visits, and mother attended 24 out of 60. Services for
father were terminated and a section 366.26 hearing set for June 15, 2021. Visitation was
ordered to remain at three times per week with the agency given discretion to allow some
short unsupervised visits, such as allowing father to walk J.A. to school.
Section 366.26 Hearing
The report prepared for the section 366.26 hearing recommended termination of
parental rights and adoption by the maternal grandparents. An adoption assessment
found the children to be adoptable.
J.A. continued in counseling to address his history of trauma and family
disruption. He had perfect attendance at school for the past four months. J.A. reported
that he was safe with maternal grandmother and wanted to be adopted by her. L.A. was
developmentally on track, but too young to provide a statement regarding adoption.
Maternal grandparents wished to adopt both children and provide for them. They
had full background check clearance.
Since termination of services, mother attended 25 visits and missed 20; father
attended 18 visits and missed 27 visits. Mother was reported to visit twice a week but did
not interact with the children much and blamed her job as the reason for not being able to
visit as ordered. Father was inconsistent but came once a week early in the morning
11.
before school to help J.A. with his homework. He also came in the evenings but did not
stay too long.
The CASA reported that, when she asked J.A. for a “high and low” for one week,
J.A. listed his parents not coming for a visit as planned as his low. Maternal grandmother
reported to the CASA that she asked the parents to tell her if they were going to come late
or not at all to visits and requested that they leave by 8:00 p.m. However, the parents
either showed up late or not at all, which disappointed J.A. When the parents did come,
the children would like to be outside, but the parents want to stay indoors due to the heat.
The parents typically turned on the television, father would fall asleep, and mother would
write in her journal and puts iPads in front of the children. Maternal grandmother stated
that the parents do not make visits a priority and cancel if something else comes up. If
they stay for dinner, they do not help but expect J.A. to help serve them. Father would
take food from L.A.’s plate, stating he probably would not eat it anyway.
The CASA concurred in recommending adoption by the maternal grandparents as
the permanent plan.
A contested section 366.26 hearing was held June 29, 2021. J.A. was present;
L.A. was not. After counsel for father asked for a continuance because J.A. was 10 years
old,2 making this a “more complicated contested” hearing, counsel for the children
indicated that J.A. was in favor of adoption. Rather than continue the matter, the juvenile
court conducted an informal, unsworn examination of J.A. in chambers with counsel
present.
The juvenile court asked J.A. what he thought would be good for him and his
brother. J.A. stated that L.A. likes to see their parents and their dogs. He stated that he
likes staying at his mother’s house because he can see his friends who live close by. But
2 It was subsequently pointed out that J.A. had just turned 11.
12.
he stated that he would not recommend his parents’ house “right now” because they
needed to get it straightened out and he was worried about L.A. and the pool.
J.A.’s counsel explained that the recommendation was for J.A. to stay with his
maternal grandparents and be adopted, which would mean they would act as the parents
until he is 18 and L.A. is 18. J.A. stated he was “fine” with that.
When asked what visits were like with his parents, J.A. also described them as
“fine,” stating his mother journaled and his father played with L.A. and watched
television. He also stated they play a board game, take a walk, or talk.
Mother and father’s counsel, as well as J.A.’s counsel, all explained to J.A. that, if
he and L.A. were adopted, there was a possibility that maternal grandparents could
determine that he and his brother could no longer see their parents. J.A. indicated that
that would not bother him as the maternal grandparents have said they know what’s best
for them. Asked if he thought that was true, J.A. stated, “I don’t know. Mom and dad,
you know, will fight here and there, never around us.”
After the discussion with J.A., a colloquy occurred between counsel and the
juvenile court. The juvenile court noted that J.A. “obviously” had a connection with
mother and father as he had been around them “for a significant portion of his life.”
Counsel for the children stated that the visits have included a “lot of longing and wishing
for things to be better that hasn’t happened.” The juvenile court noted that mother and
father had missed about half of the visits.
The juvenile court stated that the children would not be returned to their parents,
but it was a question of whether guardianship or adoption was the better option for them.
While the juvenile court thought the children wanted to maintain some sort of contact
with the parents and that would likely happen, it could not take that into consideration in
its decision.
Counsel for the agency noted the three requirements of the beneficial parent-child
relationship exception noting, one, that there had not been consistent contact; two, that
13.
there is some sort of relationship with J.A. due to his age; and three, the question was
whether severing the relationship would be detrimental. The juvenile court interjected,
stating, it did not think it would be detrimental, and counsel noted that J.A. never
mentioned missing his parents, only his friends and dogs.
In open court, counsel for father called maternal grandmother who testified that
she supervised the visits and reported monthly to the social worker about the frequency
and content of those visits. Maternal grandmother described the inconsistency of their
visits, although she had given mother and father discretion to come more often than court
ordered. She described J.A. as very aware of their ability to visit and she had to work
with him daily as to whether they would come or not.
Mother often did not come because she was working. If she did not come, father
would not come either. He finally started coming on his own after “we finally got that in
front of the courts.” When the parents did not show up, J.A. was “devastated,” something
that maternal grandmother often shared with the parents.
Father testified that he disagreed with maternal grandmother’s count of visitation,
stating he had “always gone” to three one-hour visits per week. Father did not want the
children adopted because he wanted to be able to take the children with him if he decided
to move out of state.
Mother testified that she also did not agree that she had missed approximately 45
percent of her visits. She then said her work and medication schedule were a barrier to
regular visitation.
Maternal grandmother was recalled and stated that, during the beginning of the
case, mother and father visited “a little bit,” then fell behind, but when it came up in court
that they weren’t visiting, mother and father would bump up their visits. Maternal
grandmother recalled that mother called the previous day and stated she wanted to go to
the gym and asked, did she “have to go visit today?” Maternal grandmother stated that
she left the decision to mother.
14.
In closing, counsel for the children stated that consistency of visitation had been
an issue at every court hearing, enough so that the juvenile court made an earlier order
that the parents give maternal grandmother 24-hours’ notice as to whether they were
coming or not. Counsel also pointed out that the quality of the visits was lacking, they
were sometimes cut short and hurried, and often not of a parent/child nature.
The juvenile court addressed both of these issues, acknowledging that both
consistency and quality of the visits had been a factor throughout the case. In addressing
the beneficial parent-child relationship exception, the juvenile court stated:
“I think there was a history of visits, some inconsistencies, the quality may
have not been great, but there were visits. There’s no question there’s a
relationship between the parents and children.… Especially with [J.A.].…
Perhaps with [L.A.], it’s not quite as strong, but there is a relationship.”
The juvenile court then stated that, while J.A. expressed in chambers that he did want to
continue visiting his parents, “it’s clear to me that what’s in the best interest of these
children is to choose adoption .…” and “I don’t believe it would be detrimental to them
to have them be adopted.” In terminating mother and father’s parental rights, the juvenile
court reiterated:
“As I stated before, the parents were given three years of reunification
services. They failed to reunify in those three years and adoption will give
them the permanency that the law finds is important for children, that they
have a permanent long-term plan and adoptions create that.”
DISCUSSION
Mother argues that we must reverse the order terminating her parental rights as the
juvenile court “improperly considered certain facts and circumstances and otherwise
failed to properly utilize and follow the teachings and guidance” recently provided by the
California Supreme Court in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.), decided
May 27, 2021. We disagree.
15.
The purpose of a section 366.26 hearing is to select a permanent plan for the child
after reunification services have terminated. (§ 366.26, subd. (b).) “ ‘At a permanency
plan hearing, the court may order one of three alternatives: adoption, guardianship or
long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong
preference for adoption over the alternative permanency plans.’ [Citation.]” (In re B.D.
(2021) 66 Cal.App.5th 1218, 1224.)
“Even when a court proceeds to select a permanent placement for a child who
cannot be returned to a parent’s care, the parent may avoid termination of parental rights
in certain circumstances defined by statute. One of these is the parental-benefit
exception. What it requires a parent to establish, by a preponderance of the evidence, is
that the parent has regularly visited with the child, that the child would benefit from
continuing the relationship, and that terminating the relationship would be detrimental to
the child.” (Caden C., supra, 11 Cal.5th at p. 629; see also § 366.26, subd. (c)(1)(B)(i).)
We apply the substantial evidence standard in reviewing the juvenile court’s
findings on the first two requirements, whether the parent has consistently visited and
maintained contact with the child, and whether the relationship is such that the child
would benefit from continuing it. (Caden C., supra, 11 Cal.5th at p. 639.) We review the
juvenile court’s findings as to the third element, whether there is detriment to the child in
severing the relationship, for abuse of discretion. (Id. at pp. 640, 641 [“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 application of the two
standards’ ” of review].)
Mother contends that the juvenile court appropriately found that she met the first
criteria of the parent-child relationship exception. We disagree and agree instead with
respondent that the juvenile court did not specifically make such a finding or, if it did,
that it was not supported by the evidence.
16.
The first requirement of the parent-child relationship exception, regular visitation
and contact, is “straightforward” and “[t]he question is just whether ‘parents visit
consistently,’ taking into account ‘the extent permitted by court orders.’ ” (Caden C.,
supra, 11 Cal.5th at p. 632.) Visits and contact “ ‘continue[] or develop[] a significant,
positive, emotional attachment from child to parent.’ [Citation.]” (Ibid.)
As to the first requirement, the juvenile court’s statement on the record was, “I
think there was a history of visits, some inconsistencies, the quality may not have been
great, but there were visits.” At the time the children were detained from mother in July
of 2018, mother was ordered to have a minimum of three visits a week, two hours each.
In December of 2019, when the children were removed from father’s custody as well,
mother was ordered to have visits two times a week for two hours each. The record
before the juvenile court was that mother never approached the threshold of consistent
visits within this parameter. Between January and July of 2020, mother attended visits,
on average, once per week for 20 visits and missed 40 visits. From July to December
2020, she attended 24 visits but missed 36 visits. During part of that period, mother
visited only every two weeks. Following termination of mother’s reunification services
and before the section 366.26 hearing, mother attended 25 of a possible 45 visits, missing
the remainder. In total, mother attended less than half of the allotted visits.
While mother contends that her lack of visits was due to her struggles with mental
health issues and effects of her medication, as well as working long hours, there was also
evidence that mother did not place a proper emphasis on attending the visits. Maternal
grandmother testified that, at one point, mother called to say she wanted to go to the gym
instead of attending a visit. Maternal grandmother also testified that mother repeatedly
put other factors ahead of visits. This was despite the fact that mother was repeatedly
made aware that J.A. struggled when visits were planned, and she failed to attend.
Assuming without deciding that regular visits occurred, we address the second
requirement of the parent-child relationship exception. “As to the second element, courts
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assess whether ‘the child would benefit from continuing the relationship.’ ” (Caden C.,
supra, 11 Cal.5th at p. 632.) The focus is on the child and “the relationship may be
shaped by a slew of factors, such as ‘[t]he 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.’ [Citation.]” (Ibid.) Focusing on the
child, “courts often consider how children feel about, interact with, look to, or talk about
their parents.” (Ibid.) Recognizing that “rarely do ‘[p]arent-child relationships’ conform
to an entirely consistent pattern,” the Supreme Court stated, “it is not necessary—even if
it were possible—to calibrate a precise ‘quantitative measurement of the specific amount
of “comfort, nourishment or physical care” [the parent] provided during [his or] her …
visits.’ ” (Ibid.)
Mother contends, and respondent does not disagree, that substantial evidence
supports the juvenile court finding of the second requirement of the parent-child
relationship exception. As stated by the juvenile court as it addressed the exception,
“There’s no question there’s a relationship between the parents and children.…
Especially with [J.A.].… Perhaps with [L.A.], it’s not quite as strong, but there is a
relationship.”
We next address mother’s contention that the juvenile court abused its discretion
by considering improper factors in its detriment analysis, the third requirement of the
parent-child relationship exception. We disagree.
“Concerning the third element—whether ‘termination would be detrimental to the
child due to’ the relationship—the court must decide whether it would be harmful to the
child to sever the relationship and choose adoption.” (Caden C., supra, 11 Cal.5th at
p. 633.) “[C]ourts need to determine ... how the child would be affected by losing the
parental relationship—in effect, what life would be like for the child in an adoptive home
without the parent in the child’s life.” (Ibid.) Thus, “ ‘[i]f severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
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attachment such that,’ even considering the benefits of a new adoptive home, termination
would ‘harm[]’ the child, the court should not terminate parental rights.” (Ibid.)
Mother contends that the juvenile court improperly considered that there was a
likelihood that the maternal grandparents, who wished to adopt the children, would allow
contact between the children and mother following adoption. We disagree. It is well
settled law that a juvenile court may not consider whether visits with the parents are
likely to occur in the future in order to discount the parent’s assertion of the exception.
(In re C.B. (2010) 190 Cal.App.4th 102, 127–128; In re Noreen G. (2010) 181
Cal.App.4th 1359, 1391.) Here, however, while the trial court did mention that maternal
grandparents would likely have contact with mother and therefore the children would as
well, it also stated that it was aware of the law and that it was not going to utilize this
factor in making its decision.
Mother also contends that the juvenile court abused its discretion when it
compared the attributes of life for the children with mother and with maternal
grandparents. Not so. As discussed in Caden C., it is improper for a juvenile court to
compare a “parent’s attributes as custodial caregiver relative to those of any potential
adoptive parent(s)” when weighing whether termination would be detrimental to the
child. (Caden C., supra, 11 Cal.5th at p. 634.) The hearing “is decidedly not a contest of
who would be the better custodial caregiver,” as nothing at the section 366.26 hearing
allows the child to return to live with the parent. (Ibid.) Here, the juvenile court did not
compare mother’s attributes as a custodial parent to that of maternal grandparents.
Instead, it looked at what the children’s lives would look like in the proposed adoptive
home and the security and stability that could provide if mother’s parental rights were
terminated. “[T]he question is just whether losing the relationship with the parent would
harm the child to an extent not outweighed, on balance, by the security of a new, adoptive
home.” (Ibid.)
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And finally, mother contends the juvenile court abused its discretion when it
improperly held it against mother that she failed to reunify with the children. We
disagree. A parent’s “continued struggles” with the issues that led to dependency cannot,
“standing alone,” be a bar to the parental-benefit exception. (Caden C., supra, 11 Cal.5th
at p. 637.) “The exception preserves the child’s right to the relationship even when the
child cannot safely live with that parent. What it does not allow is a judgment about the
parent’s problems to deprive a child of the chance to continue a substantial, positive
relationship with the parent.” (Id. at p. 643.) However, a parent’s struggles with the
issues that led to the dependency are “relevant to the application of the [parental-benefit]
exception” because it may be probative of whether interaction between parent and child
has a negative effect on the child. (Id. at p. 637.)
In considering the parent-child relationship exception here, the juvenile court, at
one point, stated,
“The case has been going on for three years. The parents have been offered
services, I think it’s been about three years in which the parents were given
the opportunity to reunify with the children. There was back and forth, and
the children were detained. They were placed with the father, they were
detained again, and so forth.”
We do not find that, in making this statement, the juvenile court abused its
discretion. There is no indication that the juvenile court relied on mother’s “continued
struggles” alone to bar the parent-child relationship exception. Instead, the statement was
an accurate recap of the timeline in the case.
We find no abuse of discretion here in terminating mother’s parental rights. Even
if mother demonstrated both consistent visitation and a beneficial bond with J.A. and
L.A., mother has not demonstrated the juvenile court’s conclusion was arbitrary or
irrational, let alone that this case presents the type of “exceptional circumstance” that
would warrant departure from the norm of adoption. (Caden C., supra, 11 Cal.5th at
p. 631 [the parent-child exception, like the other statutory exceptions to termination of
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parental rights, is a departure from “ ‘the norm’ ” of adoption and applies only in
“ ‘exceptional circumstances’ ”]; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.)3
DISPOSITION
The order terminating mother’s parental rights to J.A. and L.A. is affirmed.
LEVY, Acting P.J.
WE CONCUR:
POOCHIGIAN, J.
MEEHAN, J.
3 Mother joins in father’s related appeal (case No. F083225) and asks that, if we
decide in father’s appeal that one of the children has a sufficient relationship exception
with father to warrant reversal, we also consider the sibling relationship exception to
termination of parental rights. She further argues that, if we conclude reversal is
warranted as to father, that the termination of her parental rights also be reinstated.
Because we find no error on the part of the juvenile court in father’s related appeal, these
arguments by mother are moot.
21.