In re A.E. CA4/2

Filed 3/3/21 In re A.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.E. et al., Persons Coming Under
the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E076020
Plaintiff and Respondent, (Super.Ct.No. RIJ1900179)
v. OPINION
M.E.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and
Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and
Julie Koons Jarvi, Deputy County Counsel for Plaintiff and Respondent.
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M.E (mother) appeals an order terminating her parental rights and freeing her two
sons for adoption by their current caregiver, their maternal grandmother. Mother argues
the court erred in failing to apply the parental benefit exception when considering which
permanent plan to select for the boys. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i),
unlabeled statutory citations refer to this code.) We find no error.
On this record, the juvenile court could reasonably conclude that the maternal
grandmother is the only adult who has occupied the parental role in these boys’ young
lives. Both boys tested positive for methamphetamine at birth and have spent their entire
lives under the maternal grandmother’s care. Though many of mother’s visits and
contacts during the pendency of this proceeding have gone well, positive experiences,
even consistent ones, do not on their own constitute a compelling reason to deprive a
dependent child of the permanency benefits of adoption. (See In re Bailey J. (2010) 189
Cal.App.4th 1308, 1316.) During the reunification period, mother failed to address the
substance abuse issues that led to her sons’ removal and failed to occupy a parental role
in their lives. By all accounts, the boys are doing well in their current home and there is
no evidence they would suffer significant detriment from the termination of mother’s
parental rights. We therefore affirm.
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I
FACTS
The subjects of this dependency are mother’s two oldest sons, Arsyn, who was
born in February 2017 and is now four years old, and Sean, who was born in April 2019
and is now almost two years old. The boys have different biological fathers.
A. Detention
Mother first came to the attention of the Riverside County Department of Public
Social Services (the department) in 2017, when she tested positive for methamphetamines
and marijuana at the birth of her first son, Arsyn. Two years later, when she gave birth to
Sean, they both tested positive for methamphetamines and marijuana, and Sean also
tested positive for amphetamines. A department social worker went to the hospital to
investigate and interview mother. Hospital staff informed the social worker that mother
had not received any prenatal care during her pregnancy and had admitted to using
methamphetamine throughout her pregnancy. The social worker then interviewed mother,
who admitted having a long history of methamphetamine and marijuana use. She said she
had used meth multiple times a day for many years and had smoked it within two days of
Sean’s birth. She said she had been living with her mother (the maternal grandmother),
but recently moved in with a friend whose home was “full of people using drugs
together.”
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The social worker also interviewed the maternal grandmother and mother’s sister
(the maternal aunt). The aunt said mother and Arsyn had lived with her for several
months after his birth in 2017. The aunt had helped mother care for Arsyn “until
[mother’s] behavior of leaving and not caring for the baby became too much to tolerate.”
Mother then moved in with the maternal grandmother, who according to both the aunt
and the grandmother, acted as the primary caretaker while mother resided there.
The grandmother reported that mother was rarely home when she lived with her.
She would spend her time hanging out with friends or Arsyn’s father, leaving the
grandmother to care for the infant on a daily basis. On the rare occasions mother was
home with Arsyn, she would bring him to the grandmother for basic care like changing
his diaper. The grandmother told the social worker she was able to care for both boys.
She said she was already financially responsible for Arsyn and could be for Sean as well.
On April 9, 2019, four days after Sean’s birth, the department filed dependency
petitions for the boys. Relevant here, the petitions alleged the children fell under section
300, subdivision (b) (failure to protect). The following day, the juvenile court ordered the
boys detained from mother’s care and placed them with the grandmother.
B. Jurisdiction and Disposition
The boys did well in the grandmother’s care leading up to the jurisdiction and
disposition hearing. They both appeared bonded to her, and she was meeting their needs.
Arsyn was healthy, received his first round of immunizations, and grandmother intended
to request a speech therapy referral at his scheduled physical. Sean was eating and
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sleeping well and appeared to be developmentally on track. Mother missed two visits
during this time, but she was attentive and behaved appropriately at the ones she did
attend.
The juvenile court held the jurisdiction and disposition hearing on June 11, 2019.
It adjudged the boys dependents, removed them from mother’s care, and ordered the
department to provide her with six months of family reunification services.1
C. Six-Month Review Period
Mother’s case plan included substance abuse treatment, drug testing, counseling,
and a parenting education program. Her participation in services during this period was
sporadic and minimal. She spent a week in an inpatient treatment facility and about a
week in an outpatient treatment program, and she tested negative in May 2019. However,
for the next several months (through October 2019) she failed to appear for testing.
In addition, mother was late to, or missed, many visits during the reunification
period. She missed visits during the entire month of August because she was in custody
for failing to appear in court for several outstanding cases. When she did attend visits, the
supervisor observed she had difficulty showing she could manage both boys at once. On
several occasions, she left the infant, Sean, unattended while she chased after Arsyn.
The court also removed the boys from their fathers’ care and denied each father
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reunification services (Arsyn’s father because he was unavailable within the meaning of
§ 361.5, subd. (a), and Sean’s because he had failed to reunify with his children in three
previous dependencies). We do not discuss the fathers any further in this appeal, as they
are not parties and their circumstances are irrelevant to resolution of mother’s challenge.
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During one visit that took place at her inpatient treatment facility, staff had to keep an eye
on Arsyn because she was off showing Sean to people.
The six-month review hearing took place on December 4, 2019. The department
recommended terminating mother’s services because she hadn’t made sufficient progress
on any portion of her case plan or on mitigating the circumstances that led to the
initiation of the case. The juvenile court agreed and terminated her reunification services.
It set a permanency planning hearing under section 366.26 and reduced mother’s visits to
twice a month.
D. Termination of Parental Rights
In January 2020, mother entered an inpatient substance abuse facility on her own
initiative, and her first two monthly visits with the boys took place at the facility.
However, in March, in response to the COVID-19 pandemic, visitation was transitioned
to remote formats, and didn’t return to in-person until June. According to the supervisor,
mother played appropriately with the children but struggled with the disciplinary or
structural aspect of visits, like providing redirection and consequences for inappropriate
behavior.
In July 2020, mother gave birth to a baby girl who tested positive for
methamphetamines. The department detained the newborn and placed her in the maternal
grandmother’s care.
Meanwhile, the boys continued to thrive in the maternal grandmother’s care, and
she wanted to adopt them. She said she already considered them her own children and
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was committed to meeting their needs and providing them with the tools needed for a
successful future. Arsyn and Sean were very bonded to her and seemed happy in her
home. The department described Arsyn as affectionate, warm, and smart. He went to
speech therapy twice a week, and his speech was reportedly improving. He was eating
well and sleeping through the night. The department described Sean as intelligent, active,
and observant. In their adoption assessment, they concluded the maternal grandmother
was a good caretaker for the boys, and they recommended terminating mother’s parental
rights and selecting adoption as the boys’ permanent plan.
In August 2020, mother filed section 388 petitions requesting additional time and
services to reunify with her sons. She said she had participated in a substance abuse
program, an anger management class, and a parenting class on her own initiative. She
also said she was going to therapy and attending 12-step meetings.
The combined section 388 and permanency planning hearing took place on
October 5, 2020. Mother and the social worker testified. Mother said she had completed a
residential treatment program and re-enrolled after her daughter was born. She said she
had tested negative throughout her time in treatment and had completed an anger
management class. She also said she had secured housing and employment and was
maintaining her sobriety. Regarding her relationship with the boys, she said they were
always excited to see her during visits, went right to her, and called her “mama.” She said
Arsyn would throw tantrums at the end of visits and did not want to leave. She said she
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enjoys visits and looks forward to them, but that they’re also “a lot with three kids.” She
said she loves her sons very much and shares a strong bond with them.
The social worker testified that mother was appropriate during visits and showed
the boys love and affection. However, she also said mother struggled to handle both boys
by herself and that it was helpful to have other people around during visits. She described
mother’s relationship with the children during visitation as that of a playmate. She agreed
that Arsyn struggled at the end of visitations, but in her view that was because he was
upset with “fun time being over . . . and having to go back to a more structured
environment.” She said the boys were “extremely bonded” to the grandmother.
Mother’s counsel argued the parental benefit exception to terminating parental
rights applied. The juvenile court disagreed, denied mother’s section 388 petition, and
terminated her parental rights. Mother appealed.
II
ANALYSIS
Mother argues the trial court erred by concluding the parental benefit exception
does not apply. We disagree.
At the section 366.26 permanency planning hearing, the juvenile court selects and
implements a permanent plan for the dependent child or children. The court may order
adoption, guardianship, or long-term foster care as the permanent plan. (In re Collin E.
(2018) 25 Cal.App.5th 647, 663.) When a dependency reaches this stage, it means the
parent has failed to reunify with their children, and, at that point, the focus shifts from
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keeping the family together to the needs of the children for permanency and stability. (In
re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1348 [“By the time of a section 366.26 hearing, the parent’s interest in reunification is no
longer an issue and the child’s interest in a stable and permanent placement is
paramount”].) As a result, the Legislature prefers adoption as the permanent plan where
possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “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.” (In re S.B. (2008) 164
Cal.App.4th 289, 296-297.)
If the juvenile court finds the child or children adoptable, the parent bears the
burden of proving an exception to terminating parental rights applies. (In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1343.) “[I]t is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parental
benefit exception at issue here applies when (i) the parent has “maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship” and (ii) the court finds that the parent-child relationship presents a
“compelling reason for determining that termination [of parental rights] would be
detrimental to the child.” (§ 366.26, subd. (c)(1)(B)(i).)
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Beginning with In re Autumn H. (1994) 27 Cal.App.4th 567, our appellate courts
have routinely interpreted the exception to apply to only those parent-child relationships
the severance of which “would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed.” (Id. at p. 575; In re Jasmine D.,
supra, 78 Cal.App.4th at pp. 1347-1348; In re G.B. (2014) 227 Cal.App.4th 1147, 1161.)
While it’s not necessary for the parent to prove they have maintained “day-to-day”
contact or that the child’s “‘primary attachment’” is to them (In re S.B. (2008) 164
Cal.App.4th 289, 299), the parent must demonstrate they occupy a beneficial parental
role in the child’s life. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [the
exception applies “to situations where a dependent child benefits from a continuing
parental relationship; not one…[where] a parent has frequent contact with but does not
stand in a parental role to the child”].)
“The Autumn H. standard reflects the legislative intent that adoption should be
ordered unless exceptional circumstances exist, one of those exceptional circumstances
being the existence of such a strong and beneficial parent-child relationship that
terminating parental rights would be detrimental to the child and outweighs the child’s
need for a stable and permanent home that would come with adoption.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 51, italics added.) “[T]he court balances the strength and
quality of the natural parent/child relationship in a tenuous placement against the security
and the sense of belonging a new family would confer. If severing the natural
parent/child relationship would deprive the child of a substantial, positive emotional
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attachment such that the child would be greatly harmed, the preference for adoption is
overcome and the natural parent’s rights are not terminated.” (In re J.C. (2014) 226
Cal.App.4th 503, 528-529, italics added.)
We review the court’s finding on the existence of the beneficial parental
relationship for substantial evidence. (In re Bailey J., supra, 189 Cal.App.4th at p. 1314.)
And whether “the relationship is a ‘compelling reason’ for finding detriment to the child”
is a “‘quintessentially’ discretionary decision” that we review for abuse of discretion. 2
(Id. at p. 1315.)
On this record, we do not reach the second prong of the analysis—the juvenile
court’s discretionary decision—because there is insufficient evidence that a beneficial
parent-child relationship exists between mother and her sons. Even if we ignore the visits
mother missed during the reunification period and accept her argument that she
maintained consistent visitation and was a “positive presence” for her sons, the record
contains no evidence she occupied a parental role in their lives. From the outset, she
failed to act as a protective parent. Arsyn tested positive for methamphetamine and other
substances at birth, as did Sean, two years later (and, regrettably, as did mother’s
youngest child, born after she failed to reunify with her sons).
2“Appellate courts are divided over the appropriate standard of review for an
order concerning the applicability” of the parental bond exception. (In re Caden C.
(2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have
reviewed the decision for abuse of discretion and others for substantial evidence. Other
courts have combined the two and taken a hybrid approach, as we do. (Ibid.) Our
Supreme Court recently granted review of the issue. (In re Caden C. (2019) 444 P.3d
665.)
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Putting aside mother’s drug use during her pregnancies, the record contains no
indication she assumed the role of parent or caretaker for either son. Even before the
department began its investigation in this dependency, mother was not the primary
caretaker of Arsyn. That role was occupied by the boys’ current caretaker, the maternal
grandmother, who said mother was rarely home during Arsyn’s infancy and when she
was, would look to her to provide basic care for the baby. The maternal aunt, with whom
mother and Arsyn resided briefly after his birth, provided a similar account. She was so
concerned about mother’s ability to safely parent the newborn that she wrote a letter to
the department explaining she had not left mother unsupervised with him when they lived
with her. Sean, detained a few days after his birth, has never lived in the same home as
mother.
We credit mother for the services she completed on her own initiative after the
reunification period ended but, unfortunately, when it comes to the relevant issue for this
appeal—whether she has occupied the role of a parent (not whether she ultimately took
steps to address the issues that led to this dependency) the record is emphatically clear.
Because the boys are so young and mother has never been their primary caretaker, there
is simply no evidence of a beneficial parental relationship.
In addition to the progress she made after the reunification period ended, mother
points to her love for her sons and the evidence they enjoyed visiting with her. But those
truths are simply not enough to establish a beneficial parental role, let alone qualify as a
compelling reason to forgo adoption. And while it is undisputed Arsyn had difficulty
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parting with mother at the end of visits, that fact does not compel the conclusion that
mother occupied a beneficial parental role. Rather, the juvenile court could instead
reasonably infer that Arsyn viewed mother as a playmate and—especially given his
young age—didn’t want the fun to come to an end. (See In re Bailey J., supra, 189
Cal.App.4th at p. 1316 [parental benefit exception did not apply where “[a]t best,
mother’s supervised interactions with [her daughter] amounted to little more than
playdates for [her] with a loving adult”].)
The cases mother relies on for support do not help her position because they are
easily distinguishable. In In re Amber M. (2002) 103 Cal.App.4th 681, two of the three
children had been in the mother’s care for years before detention, and the psychologist,
therapists, and court-appointed special advocate all opined the parental relationship
“clearly outweigh[ed]” the benefit of adoption. (Id. at p. 690.) In In re E.T. (2018) 31
Cal.App.5th 68, the mother’s twin children were consistently anxious, uncertain, and
fearful outside of her care, especially after visits, and their anxiety over where they were
going to live was “persistent.” (Id. at p. 72.) Mother successfully reunified with them
before suffering a relapse. By the time of the permanency planning hearing, the twins
were still experiencing anxiety and the social services agency told the court it believed
the mother “should always be a presence in the children’s lives.” (Id. at p. 73.) The most
obvious difference in this case is that mother never spent a significant period of time as
the boys’ primary caregiver and the record contains no evidence they have or will suffer
harm if adopted by their maternal grandmother.
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We do not doubt that mother loves her sons, but a parent’s affection is an
insufficient reason to warrant foregoing an adoption in a safe and stable home once
reunification efforts have failed. Our courts have emphasized time and again that positive
or even loving contacts, on their own, aren’t enough to outweigh the permanency benefits
of adoption, especially when the children have developed a bond with the current
caregiver, as the boys have here. “No matter how loving and frequent the contact, and
notwithstanding the existence of an ‘emotional bond’ with the child, ‘the parents must
show that they occupy “a parental role” in the child’s life.’ ” (In re K.P. (2012) 203
Cal.App.4th 614, 621.) ‘“Where a biological parent . . . is incapable of functioning in that
role, the child should be given every opportunity to bond with an individual who will
assume the role of a parent.”’ (In re C.F. (2011) 193 Cal.App.4th 549, 557.) The juvenile
court correctly determined that the parental benefit exception does not apply.
III
DISPOSITION
We affirm the order terminating mother’s parental rights.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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