In re M.M. CA4/1

Filed 11/21/14 In re M.M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.M. et al., Persons Coming Under
the Juvenile Court Law.
D066132
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. SJ12862A-C)
Plaintiff and Respondent,
v.
CRISTINA A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Tiffany Gilmartin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Candice H. Cohen, Deputy County Counsel, for Plaintiff and Respondent.
Dependency Legal Group of San Diego and Eva Wiatrowski for Minors.
Cristina A. appeals juvenile court orders terminating her parental rights to her
children M.M., Z.M, and N.A. She contends insufficient evidence was presented to
support the court's finding the parent-child beneficial relationship exception of Welfare
and Institutions Code1 section 366.26, subdivision (c)(1)(B)(i), to termination of parental
rights and adoption did not apply to her. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2013, the San Diego County Health and Human Services Agency
(the Agency) petitioned on behalf of three-year-old M.M., two-year-old Z.M. and infant
N.A. under section 300, subdivision (b), based on recurring domestic violence between
N.A.'s father, Oscar A., and Cristina in the family home. The petition concerning N.A.
also included a count stating that N.A. and Cristina had tested positive for
methamphetamine at the time of N.A.'s birth. The court ordered the children detained
and ordered supervised visitation for Cristina and Oscar. In March, the court found the
allegations true and removed custody. It ordered Cristina to participate in reunification
services, including counseling, parenting education and substance abuse treatment.
Cristina and Oscar remained married and living together. Cristina had regular
visits with the children, and they appeared happy to see her. On March 19, 2013, she had
a positive methamphetamine test and missed one drug test. In April she tested positive
for methamphetamine again, was terminated from her out-patient substance abuse
1 Statutory references are to the Welfare and Institutions Code.
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program, entered another program and was referred to Drug Court. She complied with
Drug Court requirements, but on June 18 had another positive methamphetamine test and
was discharged from her outpatient program. She was three months pregnant with her
fourth child at the time. During the same month there was another domestic violence
incident.
Cristina had more positive drug tests in July, September and October 2013. Her
visits with the children were inconsistent, and M.M. had negative emotional reactions
after visits. At the six-month review hearing on October 30, 2013, the court terminated
Cristina's services and set a section 366.26 hearing to determine permanent plans for the
children.
The social worker recommended the children be adopted. Their caregivers were
committed to adopting them, and numerous families were willing to adopt children with
their characteristics.
On March 26, 2014, Cristina petitioned under section 388, requesting additional
services and unsupervised visits. She argued she had been engaging in services
voluntarily and was making significant progress toward her case plan objectives. The
social worker reported Cristina was enrolled in services regarding the dependency of her
fourth child, infant E.A. On April 21 and 29, Cristina again tested positive for
methamphetamine use.
At the hearing on May 19, 2014, after hearing evidence and argument by counsel,
the court denied Cristina's section 388 petition. After considering the evidence and
additional argument, it then found by clear and convincing evidence the children are
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adoptable. It found Cristina had maintained regular visitation and had a good relationship
with N.A., but she had not shown N.A. would be greatly harmed by severing the parent-
child relationship. The court found Cristina also had positive relationships with M.M.
and Z.M., but she had not made enough progress to have unsupervised visits and was
therefore unable to take on a parenting role, and there was no evidence that termination of
parental rights would cause significant detriment to M.M. and Z.M. The court terminated
parental rights and designated the children's caregivers as their prospective adoptive
parents.
DISCUSSION
Cristina contends insufficient evidence was presented to support the court's finding
the beneficial parent-child relationship exception of section 366.26, subdivision
(c)(1)(B)(i), to termination of parental rights and adoption did not apply to her. She
argues she maintained regular visitation, she was M.M.'s and Z.M.'s primary caregiver
before they were removed, the children were bonded to her, recognized her as their
mother, eagerly went to her during visits and were always happy to see her. She claims
she demonstrated a parental role and showed she placed the children's needs ahead of her
own.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that
a child is adoptable, it becomes the parent's burden to show that termination of parental
rights would be detrimental to the child because a specified statutory exception exists.
(Id. at p. 574.) Under the exception found in section 366.26, subdivision (c)(1)(B)(i), the
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parent is required to show termination would be detrimental in that "[t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the
court noted "[c]ourts have required more than just 'frequent and loving contact' to
establish the requisite benefit for [the] exception."
In reviewing whether there is sufficient evidence to support the trial court's
finding, the appellate court reviews the evidence in the light most favorable to the trial
court's order, giving the prevailing party the benefit of every reasonable inference and
resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at
p. 576.)
Cristina visited the children on a fairly regular basis throughout their
dependencies. However, she did not show she fulfilled a parental role, that the children
would be greatly harmed by termination of her parental rights, or that her relationship
with them was so beneficial that it outweighed the advantages they would gain from
being adopted.
During visits Cristina sometimes sat on a couch and watched movies with the
children, and the caregivers had to encourage her to interact and play with them. The
caregivers were required to supervise when Cristina asked for their help in setting limits
for the children. When visits were at the visitation center, if M.M. misbehaved, Cristina
threatened to tell the caregivers. During some visits, Cristina appeared nervous and
worried and turned her attention away from the children, saying Oscar was outside
waiting for her.
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Cristina argues the children were happy to see her and did not want to separate
from her when visits ended, and M.M. had trouble sleeping and even pulled out her
eyelashes after visits. However, by the time of the section 366.26 hearing, M.M.'s
caregivers reported M.M. was sleeping better and was no longer pulling out her
eyelashes.
Cristina did not show the children would be greatly harmed if parental rights were
terminated. Her reliance of In re S.B. (2008) 164 Cal.App.4th 289 is misplaced. In S.B.,
we reversed the juvenile court's finding that the beneficial parent-child relationship
exception did not apply after concluding the child would be greatly harmed by loss of the
significant, positive relationship she shared with her father. The father had complied
with every aspect of his case plan, frequently visited the child and was devoted to her.
(Id. at p. 294-295.) Cristina's case is distinguishable. Unlike the father in S.B., Cristina
had been in and out of substance abuse treatment programs, she did not complete
parenting classes or therapy, and, during the dependency period, engaged in another
domestic violence incident with Oscar. In January 2014, her fourth child was detained
because of her drug use. In April, Cristina again tested positive for methamphetamine.
Meanwhile, the children were thriving in placement with their caregivers.
Moreover, the determination on appeal is whether there is substantial evidence to
support the juvenile court's findings that the beneficial parent-child relationship exception
did not apply. We conclude that on the facts of this case, the court had sufficient
evidence to support its findings. The benefits to the children of being adopted into
permanent, stable homes outweighed the strength of their bonds with Cristina. Cristina
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had not shown a lack of substantial evidence to support the court's finding the beneficial
parent-child relationship exception to termination of parental rights and adoption did not
apply.
DISPOSITION
The orders are affirmed.
IRION, J.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.
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