In re N.P. CA3

Filed 5/2/13 In re N.P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re N.P. et al., Persons Coming Under the Juvenile
Court Law.
SACRAMENTO DEPARTMENT OF HEALTH C072478
AND HUMAN SERVICES,
(Super. Ct. Nos. JD231278,
Plaintiff and Respondent, JD231277)
v.
L.D. et al.,
Defendants and Appellants.
Mother, Heather B., appeals the termination of her parental rights to her son and
daughter.1 Mother contends the juvenile court erred in finding the beneficial parental
relationship exception to adoption did not apply. We find no error and affirm.
1 Son’s father joins in mother’s appeal.
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BACKGROUND
In 2010, mother gave birth to daughter who tested positive for amphetamines.
Mother admitted to using methamphetamine, crank, uppers, diet pills and speed in the
past. She also admitted using methamphetamine during her pregnancy. As part of an
informal supervision agreement, mother agreed to participate in substance abuse
treatment and parenting education. During the voluntary supervision period, mother
tested positive for drugs and failed to attend drug treatment. In January 2011, the
children were temporarily placed with their great uncle due to mother’s drug use.
The Sacramento County Department of Health and Human Services (the
Department) filed petitions under Welfare and Institutions Code section 300, subdivision
(b),2 alleging mother had a substance abuse problem dating back to at least 2006 from
which she had not rehabilitated; mother continued to use drugs; mother used
methamphetamine during the gestation of both children; and, despite her agreement to
participate in informal supervision services, mother continued to use drugs and refused
treatment. In April 2011, the court found the allegations true and declared the children
dependents. Son, almost five, and daughter, almost nine months old, were placed
together in a foster home. Reunification services and regular visitation were ordered for
mother. No reunification services were offered to son’s father or daughter’s alleged
father.
The children were engaging, social and developing well. There were some
concerns about son’s bedwetting and speech delays, but overall both children were
developmentally on target. Son had had some problems with temper tantrums which
resolved in the foster home.
2 Further undesignated statutory references are to the Welfare and Institutions Code.
2
As of July 2011, mother completed residential treatment and moved into
transitional housing. The children had weekend overnight visits with mother beginning
in September 2011. Daughter was excited to see mother. Son also looked forward to
seeing her, greeting her with hugs and kisses. Son separated easily, but counted down the
days between visits. Although mother had made strides in her recovery, the Department
was concerned about her dishonesty about where she was visiting with the children.
Nonetheless, mother had a strong bond with the children and consistently maintained
contact with the foster family about the children. During visits, she appeared very
connected with the children. Housing was mother’s primary obstacle to reunification.
An additional six months of reunification services were ordered for mother, with the goal
of placing the children with her once she obtained suitable housing. On October 18,
2011, mother found suitable housing and the children were placed with her with
continued supervision.
The Department filed section 387 supplemental petitions on January 24, 2012.
Between October 2011 and January 2012 mother repeatedly left the children with risky
caretakers who had engaged in domestic violence in front of the children, despite being
told not to leave the children in those circumstances and being provided with an alternate
safety plan. The violence included the maternal aunt, Brandy, slicing her boyfriend,
Allen, with a knife over the eyebrow and the boyfriend breaking a window out of the
apartment while the children were present. Allen was on parole for drug related charges
and domestic violence charges. There was also a restraining order in place against him.
Mother had agreed not to leave the children with Brandy or allow any contact with Allen,
but she repeatedly failed to comply with this agreement which put the children at
substantial risk of harm. The children were again removed from mother. Upon being
confronted about these allegations, mother adamantly denied them. She lied about Allen
living in the house, lied about daughter’s alleged father visiting at the house and lied
about being pregnant.
3
The social worker reported mother had a bond with her children and a desire to
learn to be a better parent. However, mother had little actual protective capacity as a
parent and continued to allow risky people to be around the children. Mother also
regularly lied and failed to follow safety plans.
The children were doing well in their foster home, although son continued to have
some bedwetting problems. They had supervised visits with their mother twice a week.
The children did not cry when leaving mother and son would ask when they were going
home to the foster home. But, son also stated he loved his mother and missed her.
Supervised visitation continued twice a week. At one visit, daughter had an
uncontrollable tantrum and mother was unable to calm her. The social worker took
daughter to foster mother and foster mother was able to calm daughter immediately. Son
would ask what days his visits with mom were, but otherwise did not ask about her. Both
children left the visits and mother easily, although daughter was sometimes more
emotional and prone to tantrums after a visit.
The Department concluded mother had failed to benefit from services, lacked
insight into her situation and continued to risk her children’s safety by placing them in
harmful situations. Mother continued to have problems “related to codependency and
dishonesty to the point of not protecting her children.” There were no further services the
Department could offer, so the Department recommended her services be terminated and
a permanent plan of adoption ordered.
In April 2012, the court found the allegations in the section 387 petitions true.
The court also found reasonable reunification services had been provided. Because it was
unlikely mother would benefit from further services, the court terminated services. The
matter was set for a section 366.26 hearing.
With reunification services terminated, visits were reduced from twice a week to
once a week in June, then twice a month in July. Mother remained consistent with her
visits. Visits were appropriate, although son tended to speak to mother as though he were
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the parent. He gave her orders and did not heed what she told him. After visits, son had
difficulty transitioning back into his routine and would take a few hours to a few days to
return to his normal self. Therapy was scheduled to take place after the visits and this
was helpful to son.
At the time of the section 366.26 hearing, the children had been living in a
prospective adoptive home for about six weeks. The adoptions social worker, Pascale
Buzbee, concluded both children were adoptable. The children were both healthy,
developing well, relatively young and had shown an ability to adjust well in placements.
Buzbee had found a few prospective adoptive homes which would have been a good fit
for the children. Son was doing very well since being placed in the prospective adoptive
home, and the stable environment it represented. Since the placement, he had not had
any problems in school or any behavioral problems. He interacted comfortably with his
prospective adoptive parents. Son had reported being anxious seeing his mother at his
school when she would pick up his cousins. He was also anxious not knowing whether
he would be returned to mother. In therapy, son also expressed anger toward mother. He
liked his prospective adoptive family and appeared relieved at the prospect of being
adopted. Buzbee had explained the concept of adoption to son. He appeared to
understand it and was “fine with a plan of adoption.”
Buzbee acknowledged mother’s contact with the children had been consistent.
But, daughter was not excited to visit mother nor was she upset at the end of visits. Son
had a close emotional bond with his mother and would be impacted by a termination of
parental rights, but Buzbee believed the benefits of a permanent and stable home would
outweigh any detriment to him of terminating the parental relationship.
Mother testified at the section 366.26 hearing. She reported during visits she
played and talked with the children and they were excited to see her. She estimated she
had provided care for daughter for less than one-half of her life, nine months. Son
seemed a little sad to leave visits but daughter would get distracted. She believed her
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parental rights should not be terminated because the children are bonded with her and
severing the parental relationship is generally not healthy for children. She
acknowledged she had made mistakes but claimed she had learned from them, and had
done what she could.
The juvenile court found the children were likely to be adopted. The court also
found termination of parental rights would not be detrimental to the children. “Other
than the mother’s testimony regarding the children recognizing her as their mother and
being happy to see her on visits, that she feels connected to them as her children, and that
the social worker felt there is an emotional bond, which is unsubstantiated by any factual
description, the Court really heard little evidence of detriment to the children of
terminating parental rights.” The court noted son was only four and a half years old
when he was first removed from mother and, since then, mother had really been only a
visitor in his life. Daughter was only six months old when she was first removed. The
juvenile court ordered adoption as the permanent plan and parental rights were
terminated.
DISCUSSION
Adoption must be selected as the permanent plan for adoptable children and
parental rights must be terminated unless “[t]he court finds a compelling reason for
determining that termination would be detrimental to the child” due to an enumerated
exception to adoption. (§ 366.26, subd. (c)(1)(B).) One such exception to termination of
parental rights is if “[t]he parents have maintained regular visitation and contact with the
child[ren] and the child[ren] would benefit from continuing the relationship.” (§ 366.26,
subd. (c)(1)(B)(i); In re Celine R. (2003) 31 Cal.4th 45, 53.) Mother contends the trial
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court erred in not finding the beneficial parental relationship exception to adoption
applied.3 We disagree.
It is mother’s burden to establish the beneficial relationship exception to adoption
applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) Mother satisfied the first
prong of the exception in that she maintained regular visitation and contact with the
children. However, she did not meet the burden of establishing that she and the children
shared a beneficial parent/child relationship such that termination of that relationship
would be detrimental to the children.
A beneficial relationship is one that “promotes the well-being of the child[ren] to
such a degree as to outweigh the well-being the child[ren] would gain in a permanent
home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The existence of a beneficial relationship is determined by considering a number of
factors, including the age of the children, the amount of time the children spent in the
parent’s custody, the positive or negative effect of interaction between the parent and the
children, and the children’s particular needs. (In re Amber M. (2002) 103 Cal.App.4th
681, 689.) However, neither a loving relationship (In re Jeremy S. (2001) 89 Cal.App.4th
514, 523) nor the derivation of some benefit from continued parental contact (In re Angel
B. (2002) 97 Cal.App.4th 454, 466) is enough to establish this exception.
Here, the children were initially removed from mother in January 2011. Daughter
was about six months old and son was four and a half years old. Over the course of 20
3 There has been some disagreement in the appellate courts as to which standard of
review applies in reviewing a juvenile court’s determination regarding a statutory
exception to adoption, abuse of discretion or substantial evidence. (See In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314-1315; In re I.W. (2009) 180 Cal.App.4th 1517,
1527–1528.) Because our conclusion in the present matter would not change regardless
which of these standards of review we applied, and as addressing the issue here will not
assist in resolving the split of authority, we simply acknowledge the varying views and
turn to the merits.
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months of dependency proceedings, the children lived with mother for only three months.
During those three months, they were exposed to extreme domestic violence and left with
risky caretakers. Mother repeatedly failed to protect them, lied to the Department and did
not avail herself of resources or established safety plans. Daughter showed little evidence
of a significant bond with mother, having lived less than half of her short life with
mother. Son had a bond with mother; however, he was also angry with and upset by
mother. During visits he behaved toward her as if he were the parent. He issued orders
and did not pay attention to her. Until beginning therapy, after visits with mother, his
behavior would deteriorate and he had trouble getting back into his normal routine.
Seeing mother at his school and the uncertainty of his living situation caused him anxiety.
He was relieved when discussing being adopted and gaining permanence and stability.
Son liked his prospective adoptive parents and his behavior improved upon moving in
with them and gaining the stability of their household. Other than mother’s generalized
claim that severing a parental relationship is not healthy for children, mother offered no
evidence that terminating parental rights would be detrimental to the children. Given all
the evidence, the court did not err in finding that the beneficial relationship exception did
not apply to the termination of parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
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