In re K.M. CA2/5

Filed 8/28/20 In re K.M. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.M., a Person Coming B303631
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK94318)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
D.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Davis, Judge Pro Tempore.
Affirmed.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Navid Nakhjavani, Principal Deputy
County Counsel, for Plaintiff and Respondent.
________________________________
I. INTRODUCTION
D.C. (mother) appeals from the juvenile court’s order
terminating her parental rights to her eight-year-old son, K.M.
(the child). Mother contends the juvenile court erred when it
found that the parental benefit exception to the termination of
parental rights in Welfare and Institutions Code section 366.26,
subdivision (c)(1)(B)(i)1 did not apply. We affirm.
II. BACKGROUND
A. Section 300 Petition
On May 18, 2016, the Los Angeles County Department of
Children and Family Services (Department) filed a petition on
behalf of the child and his then two-year-old sister, J.U.,2 under
1 All statutory references are to the Welfare and Institutions
Code.
2 J.U. is not a subject of this appeal.
2
section 300 that alleged, as sustained by the juvenile court, the
following counts:
“b-1: [¶] On 04/21/2016, the children[’s] . . . mother . . . was
under the influence of illicit drugs, while the children were in . . .
mother’s care and supervision. On 04/21/2016, . . . mother
possessed methamphetamine. The children are of such a young
age as to require constant care and supervision and . . . mother’s
illicit drug use interferes with providing regular care and
supervision of the children. On 04/21/2016, . . . mother was
arrested for Use/Under the Influence of [a] Controlled Substance.
Such illicit drug use on the part of . . . mother endangers the
children’s physical health and safety and places the children at
risk of serious physical harm, damage and danger.
“b-2: [¶] The child K[.]M[.]’s father[3] . . . has a pattern of
engaging in criminal conduct with repeated arrests and periods of
incarceration. [F]ather’s criminal convictions include
Obstruct/Etc[.] Public Officer/Etc., Illegal Possession Any Assault
Weapon, Felony Burglary 1st Degree and Street Gang Act:
Convicted Felon. In 2015, the child’s father was sentenced to 104
months in prison and [six] years in prison for . . . father’s criminal
conduct. Such criminal history and conduct on the part of . . .
father endangers the child’s physical health and safety and
places the child at risk of serious physical harm, damage and
danger.”
3 The child’s father is not a party to this appeal.
3
B. Jurisdiction and Disposition Hearings
At the August 3, 2016, jurisdiction hearing, the juvenile
court sustained the section 300 petition’s allegations and set the
matter for a contested disposition hearing. At the
August 15, 2016, disposition hearing, the juvenile court declared
the child to be a dependent of the court, removed him from
parental custody, and ordered mother to participate in a
drug/alcohol program with aftercare, random weekly drug/alcohol
testing, a 12-step program, parenting education, and individual
counseling. The court ordered mother to have two, two-hour
monitored visits with the child a week.4 The child, who has
Down syndrome,5 intermittent asthma, and congenital heart
disease, remained placed with his maternal grandmother.
C. Six-Month Review Period
In its February 9, 2017, Status Review Report, the
Department reported that mother contacted the social worker in
November and December 2016 and complained that maternal
grandmother had not permitted her to visit the child. Maternal
grandmother reported that she permitted mother to visit the
child whenever mother wanted. Maternal grandmother stated
4 The minute order also stated that visits were to be limited
only by the monitor’s availability.
5 According to the Multidisciplinary Assessment Team
summary of findings, the child’s “impairments” did not rise to the
level of requiring mental health services.
4
that mother was a good mother and called the child every day.
The child loved mother and was sad when mother left after
visiting him. Maternal grandmother believed mother and the
child had a “really good bond.” Mother was not under the
influence of drugs or alcohol when she visited the child.
Mother was not complying with court-ordered services.
Between October 12 and December 29, 2016, mother had missed
12 random drug tests. She had not enrolled in a 12-step program
(or obtained a sponsor), parenting classes, or individual
counseling, and had not maintained contact with the social
worker.
On January 3, 2017, maternal grandmother told the social
worker that mother visited the family all day on
December 31, 2016, and for four hours the following day. Mother
visited the child weekly, with the visits lasting between two and
four hours. The following day, maternal grandmother told the
social worker that mother visited the child once or twice a week
for several hours each visit.
The delivered service log showed that on
February 16, 2017, the social worker spoke with mother at
maternal grandmother’s home. The social worker and mother
spoke in private—maternal grandmother kept the child
distracted in another room. Mother told the social worker she
visited the child two or three times a week for several hours each
visit—arriving around 8:00 a.m. and leaving around 6:00 p.m.
Mother stated, “‘My son is my best friend . . . we used to do
everything together and he’s not used to me not being there.’”
The social worker reported that the child “seemed to be very
bonded and connected” with mother and wanted to be around
while she spoke with mother.
5
During the interview, maternal grandmother repeatedly
had to take the child out of the room where the social worker and
mother spoke. The child did not like being separated from
mother and cried when he had to leave her. At one point, the
child sat at the table with the social worker and mother and
appeared to want to be part of the conversation. He seemed
calmer, less aggressive, and more playful and interactive with the
social worker while mother was present.
On March 10, 2017, mother called the social worker and
stated that maternal grandmother was not answering her
telephone and mother had not seen the child since the social
worker interviewed mother at maternal grandmother’s home on
February 16, 2017. Mother said that maternal grandmother
tried to start an argument with her at the end of every visit and
she would “rather hear [her] son laugh over the phone [than] cry
in front of [her] when [she had] to leave him.”
Mother explained her close relationship with the child.
When he was in her custody, she home-schooled him and he was
able to speak a little. Currently, he was not speaking. She
brushed his teeth and dressed him.
Mother called the social worker again on March 14, 2017,
complaining that maternal grandmother would not let her see the
child. She said that maternal grandmother told her after the
social worker’s February 16, 2017, meeting with mother at
maternal grandmother’s house that she would not allow mother
to visit the child.
At the March 28, 2017, six-month review hearing, the
juvenile court found that the Department had provided mother
with reasonable services. It ordered the Department to prepare a
written visitation schedule.
6
D. Twelve-Month Review Period
In its July 18, 2017, Status Review Report, the Department
reported that in early April, mother and maternal grandmother
entered into a written visitation agreement pursuant to which
mother would visit the child on Fridays from 2:45 p.m. to
4:45 p.m. Mother agreed to give 24 hours’ notice if she had to
cancel a visit and that the Department could cancel a visit if she
was more than 15 minutes late.
After a couple of weeks, mother started arriving late for
visits and missed visits without notifying the social worker.
Mother missed visits on April 14; May 5; May 12; May 19;
May 26, which was cancelled due to an emergency in the social
worker’s caseload; and June 2, 2017.
On June 6, 2017, maternal grandmother passed away. On
June 13, 2017, the child was placed in foster care with S.W.
At the end of June 2017, the Department filed a section 388
petition requesting that the juvenile court limit mother’s visits to
once a month for two hours in a Department office. The petition
alleged that maternal grandmother’s male companion informed
the Department that mother and an unknown male had abducted
the child from maternal grandmother’s backyard on June 3, 2017.
Maternal grandmother’s male companion called law enforcement.
With the assistance of the Palmdale Sheriff’s Department,
paternal grandmother and an unknown male returned the child
later that day. The juvenile court granted the petition and
ordered mother’s visits with the child limited to two, two-hour
visits a month in a Department office.
The delivered service log showed that on April 7, 2017,
mother had a visit with the child at a Department office.
7
According to the social worker, mother was “extremely playful
and active with her son during the visit. It was clear that the
child . . . was comfortable in his mother’s presence and seemed to
have a close bond with her.” The child was very active and
mother was able to handle his “behaviors to some extent.”
Mother interacted positively and appropriately with him. She
held the child and gently rocked him back and forth for about the
final 30 minutes of the visit. At the end of the visit, the child
began to cry and became upset when mother had to leave.
Mother also had a difficult time saying goodbye.
During mother’s April 21, 2017, visit with the child, she
was very interactive and affectionate with him. The child was
“very hyper and full of energy,” but mother was patient with him
and was able to keep up with him and keep him entertained.
They watched a movie together.
During mother’s April 28, 2017, visit with the child, the
child appeared to be comfortable in mother’s presence. Mother
was playful, affectionate, and patient with the child and
interacted with him appropriately. When the child cried, mother
consoled him. They watched “Mickey’s Clubhouse” on mother’s
portable DVD player.
On July 14, 2017, the child was placed with maternal
relative K.A.
Mother visited the child on July 21, 2017. At the beginning
of the visit, the child approached a woman sitting in the
Department’s lobby and stopped in front of her as though he
thought she was mother. The social worker took the child to the
visitation room where mother was waiting. Mother was
appropriate with the child and they watched “Mickey’s
8
Clubhouse” on mother’s telephone. The child became upset at the
end of the visit when mother said goodbye.
On July 28, 2017, mother failed to attend her visit with the
child.
At the 12-month review hearing on October 25, 2017, the
juvenile court found that mother had not complied with the case
plan—she had not appeared for numerous drug tests, she had not
properly maintained contact with the Department, and she had
not consistently visited the child. It terminated mother’s
reunification services and set the matter for a section 366.26
permanent plan hearing.
E. Permanent Planning Period
In the Department’s February 21, 2018, section 366.26
report, the Department reported that the child was thriving
under K.A.’s loving care and supervision. As for the child’s
medical and developmental diagnoses/conditions, K.A. had
demonstrated her strong commitment to advocate on the child’s
behalf and was meeting his medical, dental, developmental,
educational, and emotional needs. During the social worker’s
home visits, the child appeared to be “doing great” and was
always well groomed and well dressed. K.S. had enrolled the
child in school and secured special bus transportation for him.
She had ensured that he continued to receive his speech/language
therapy services and she actively participated in his
individualized education plan (IEP) meetings and
implementation. Rather that request respite care, K.A. included
the child on family vacations for his continued enrichment and
development.
9
Mother’s visits with the child were scheduled to take place
from 3:30 p.m. to 5:30 p.m. on Fridays. Mother showed signs of
improvement in attending visits. Mother appeared loving,
affectionate, and attentive toward the child during visits.
The Department reported in its May 23, 2018, Status
Review Report that the child was thriving in his placement with
K.A. who expressed a desire to adopt the child, but also to be his
legal guardian if adoption efforts failed. Mother continued to
visit the child twice monthly in a Department office, but her
visits were inconsistent due to her “tardiness and forgetfulness of
the scheduled dates of the visits.” When mother did visit, she
was appropriate, affectionate, and attentive toward the child’s
needs.
In its November 26, 2018, Status Review Report, the
Department reported that the child was thriving in his placement
with K.A. The child was regularly attending school and his
overall vocabulary, communication, and self-expression had
greatly improved since the start of his IEP and special education
services in the fall of 2017.
Mother’s visits with the child had been inconsistent
because she was late and forgot scheduled visit dates. When
mother was present, she was appropriate, affectionate, and
attentive toward the child’s needs. The child responded well to
mother and appeared to be comfortable in her presence. He often
became upset when visits ended. According to K.A., mother
rarely called to speak with the child.
Mother failed to attend her visit with the child on
May 18, 2018. Mother visited the child on June 1, July 13,
July 27, and September 28, 2018. At the end of the July 27, 2018,
visit, the child became upset and struck mother in the face
10
multiple times, continuing to strike her after she asked him to
stop and restrained his hands. Mother suggested the child was
learning “‘rough-housing’” in his placement. After the
September 28, 2018, visit, mother had not contacted the social
worker to schedule a visit with the child.6
In its May 20, 2019, Status Review Report, the Department
reported that the child was thriving in K.A.’s care and was
comfortable in her presence. The child and K.A. seemed to have
a loving bond with one another. Mother “continue[d] to have
seldom communication” with the social worker and the child.
Mother’s visits with the child still were inconsistent due to her
tardiness and forgetfulness of scheduled visit dates. Mother was
affectionate and interactive with the child when she visited.
On June 19, 2019, mother filed a section 388 petition
requesting the juvenile court return the child to her care or,
alternatively, order additional reunification services. The
petition stated that mother had enrolled in the Tarzana
Treatment Center and was participating in substance abuse
counseling, testing, a 12-step program, Narcotics
Anonymous/Alcoholics Anonymous meetings, parenting classes,
mental health treatment, group sessions, and anger
management.
On June 21, 2019, the juvenile court summarily denied
mother’s section 388 petition. It found the request did not state
new evidence or a change of circumstances and the proposed
change of order was not in the child’s best interest.
6 The delivered service log attached to a later Department
report reflects that mother had visits on November 2
and 16, 2018.
11
In an August 8, 2019, Last Minute Information for the
Court, the Department informed the juvenile court that mother
had improved in confirming visits with the social worker 24 hours
in advance, but mother continued to be tardy for every visit. K.A.
told the social worker that mother rarely spoke with the child on
the telephone between visits.
The Department reported in its November 20, 2019, Status
Review Report that K.A. had consistently and adequately
provided for the child’s physical, educational, and developmental
needs. In the social worker’s presence, the child always was well
groomed, nicely dressed, clean, and physical healthy. The child
appeared to be comfortable in his placement with K.A. and it was
“apparent that there [was] a clear and loving bond between the
child” and K.A.
Mother’s visits with the child had been inconsistent. Even
though mother was better about confirming visits with the social
worker, she continued to arrive at visits between 25 and 60
minutes late. During visits, mother gave the child food and toys
that she brought to the District’s office. Mother often sat holding
the child and watching cartoons for a majority of their visits.
K.A. reported that mother rarely called to speak with the child.
Weeks would pass without a telephone call from mother, then
mother would call late at night when the child was already in bed
or getting ready for bed. Mother would promise to call back in
the morning or right after school when the child was home, but
did not follow through.
At the January 3, 2020, section 366.26 hearing, mother
testified that since the child began living with K.A. she visited
him every chance “they” gave her—the first and last Friday of the
month. She testified the visits were unmonitored and she had
12
not missed any offered visit in the prior 18 months. She had been
10 to 15 minutes late for three visits, but always notified the
social worker. Since June 7, 2017, mother had tried to call the
child every morning and every night but “they don’t answer.”
When visits took place, the child always waited for mother
in the same chair and was excited to see her. When he saw
mother, he would jump up and run to her, hug her, and call her
“my mom.” During visits, the child did not pay attention to
anyone or anything else and would tell mother about his “days”
and show her what he had done in school. Mother and the child
would work on arts and crafts, read, and watch Mickey Mouse on
mother’s telephone. Mother brought washable markers, finger
paints, crayons, coloring pages, and balls to visits. She also
helped the child with his schoolwork. Mother never had to
redirect or use discipline with the child during visits—when he
was with her, he was “so great.”
At the end of visits, the child gathered his and mother’s
things as though they were going to leave together. When told
that they were not, the child would scream and cry and try to
take mother’s hand to lead her in the direction in which he was
going. Mother would then sit with the child and comfort him,
telling him he would see her again in two weeks.
Mother testified that she did not attend the child’s medical
appointments because K.A. and the social worker would not allow
her to do so. She last called one of the child’s doctors to check on
his well-being in May 2018. In the prior year, mother had not
participated in the child’s daily care such as feeding and bathing
him, although she fed him at visits. K.A. and the social worker
did not allow her to have contact with the child other than at
visits.
13
Mother believed the child would be negatively impacted if
his relationship with her were severed because the only time that
he talked, ate, interacted, or opened up was when he was around
mother. Otherwise, he closed and isolated himself. Mother
learned about the child’s behavior when they were not together
from K.A.
At the conclusion of mother’s testimony, the juvenile court
continued the hearing. When the hearing resumed on
January 7, 2020, mother’s counsel argued that the juvenile court
should find that the parental benefit exception to the termination
of parental rights applied.
The juvenile court found mother’s testimony “self-serving in
a lot of instances and less than credible in a few.” Mother had
not maintained a parental bond with the child. There had not
been consistent visitation. Visits were limited to two times a
month “based on the factors that were of . . . mother’s own doing.”
Also, mother’s visits did not “equate to parenting sessions, which
is basically what the visitation is to look like if the exception is to
be applied.” The juvenile court concluded that the permanence
that the child would have from being adopted far outweighed any
benefit that might be obtained from continuing a relationship
with his parents and terminated mother’s and father’s parental
rights.
III. DISCUSSION
A. Applicable Law
“At a section 366.26 hearing, the juvenile court selects and
implements a permanent plan for the dependent child.” (In re
14
Noah G. (2016) 247 Cal.App.4th 1292, 1299, (Noah G.).) At this
stage of the proceedings, the preferred plan is adoption. (In re
Breanna S. (2017) 8 Cal.App.5th 636, 645.) “First, the court
determines whether there is clear and convincing evidence the
child is likely to be adopted within a reasonable time. [Citations.]
Then, if the court finds by clear and convincing evidence the child
is likely to be adopted, the statute mandates judicial termination
of parental rights unless the parent opposing termination can
demonstrate one of the enumerated statutory exceptions applies.”
(Id. at pp. 645–646.)
“The parental benefit exception applies when there is a
compelling reason that the termination of parental rights would
be detrimental to the child. This exception can only be found
when 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 re Anthony B.
(2015) 239 Cal.App.4th 389, 395 (Anthony B.); accord, In re
E.T. (2018) 31 Cal.App.5th 68, 75–76.) For the benefit prong of
the exception, “[t]he issue . . . is not whether there was a bond
between [the parent] and [the child]. The question is whether
that relationship remained so significant and compelling in [the
child’s] life that the benefit of preserving it outweighed the
stability and benefits of adoption.” (Anthony B., supra, 239
Cal.App.4th at p. 396.)
Various factors affect the parent-child bond, including
“[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 . . . .”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[A] parental
relationship is necessary for the exception to apply, not merely a
15
friendly or familiar one.” (In re Jasmine D. (2000) 78 Cal.App.4th
1339, 1350 (Jasmine D.).) “Evidence of frequent and loving
contact is not enough to establish a beneficial parental
relationship.” (Noah G., supra, 247 Cal.App.4th at p. 1300.) “The
juvenile court may reject the parent’s claim simply by finding
that the relationship maintained during visitation does not
benefit the child significantly enough to outweigh the strong
preference for adoption.” (Jasmine D., supra, 78 Cal.App.4th at
p. 1350.)
B. Standard of Review
There is a split of authority regarding the appropriate
standard of review for determining whether the parental benefit
exception to the termination of parental rights applies. (See In re
Caden C. (2019) 34 Cal.App.5th 87, 106, review granted
July 24, 2019, S255839.) “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 be detrimental to the
child.” (Anthony B., supra, 239 Cal.App.4th at p. 395.)
C. Analysis
Mother failed to establish either that she maintained
regular visitation and contact with the child or that the child
would significantly benefit from continuing the relationship.
Mother’s visits with the child were sporadic. At times, such as
when the child initially lived with maternal grandmother, mother
16
visited regularly. But often mother was late for or missed visits.
Due to her conduct, for the nearly two and a half years leading up
to the section 366.26 hearing, mother had only two, two-hour
visits a month. (In re C.F. (2011) 193 Cal.App.4th 549, 554
[“Sporadic visitation is insufficient to satisfy the first prong of the
parent-child relationship exception to adoption”].) Mother also
failed to maintain regular telephone contact with the child
between visits.
As for the benefit prong, there is no doubt that mother and
the child love each other, enjoy spending time with one another,
and share a bond. But mother failed to show she had a parental
relationship with the child. (Jasmine D., supra, 78 Cal.App.4th
at p. 1350.) The juvenile court removed the child from mother’s
custody on August 15, 2016, nearly three and a half years prior to
the section 366.26 hearing. For the nearly two and a half years
before the hearing, mother’s contact with the child was, on
average, something less than four hours a month. As mother
admitted in her testimony, she was not involved with the child’s
daily care—feeding or bathing him—and did not attend his
medical appointments or contact his doctors to check on his well-
being. Mother’s relationship with the child was not so significant
and compelling in the child’s life that the benefit the child would
have received in preserving it outweighed the stability and
benefits of adoption. (Anthony B., supra, 239 Cal.App.4th at
p. 396.)
17
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
18