California Court of Appeal Mar 13, 2015 No. D066530Unpublished
Filed 3/13/15 In re Brianna P. CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re BRIANNA P. et al., Persons Coming Under the Juvenile Court Law. D066530 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518405A-B) Plaintiff and Respondent,
v.
T.S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee
A. Lagotta, Judge. Affirmed.
Tungsten Legal and Elena S. Min, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Montgomery, Deputy County Counsel, for Plaintiff and Respondent.
T.S. appeals the judgment terminating her parental rights to her children, Brianna
P. and Daniel P., Jr. (we refer to Daniel P., Jr. as Daniel and to Brianna and Daniel
together as the children). T.S. contends the juvenile court erred by declining to apply the
dependent. Daniel was born in April 2011, when T.S. was 17 years old and still a
juvenile court dependent. The children's father is Daniel P., Sr. (Daniel Sr.). Beginning
in 2010, there were a number of child welfare referrals regarding the family. The
referrals stemmed from ongoing domestic violence and other issues. The San Diego
County Health and Human Services Agency (the Agency) offered voluntary services and
safety plans, to no avail.
In May 2012 the Agency filed dependency petitions for two-and-one-half-year-old
Brianna and one-year-old Daniel. The petitions alleged the children were exposed to
violent confrontations between Daniel Sr. and T.S. The petitions also alleged that in
April Daniel Sr. brought the children to the Child Welfare Office.
The children were detained in Polinsky Children's Center. Two days later, they
were moved to an emergency shelter home. Daniel was hospitalized for three days due to
severe eczema.
1 All further statutory references are to the Welfare and Institutions Code. 2
In May 2012 the court made true findings on the petitions, ordered the children
placed in a foster home and ordered reunification services. In July the children were
moved to a foster home. Three days later, the children were removed from the foster
home at the caregiver's request. The children were detained in Polinsky Children's
Center for less than a day, then moved to a new foster home where they remained for the
rest of the case.
T.S. made minimal progress in services. She entered into a relationship with
Daniel E. that resulted in the birth of her third child in April 2013. The baby became a
juvenile court dependent due to violence between T.S. and Daniel E.
At the 18-month hearing in January 2014, the court terminated T.S.'s services and
set a section 366.26 hearing. The section 366.26 hearing took place in August.
DISCUSSION
T.S. does not contest the finding the children are adoptable. If a dependent child is
adoptable, the court must terminate parental rights at the section 366.26 hearing unless
the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re
Helen W. (2007) 150 Cal.App.4th 71, 80-81.) An exception exists if "[t]he 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).) A beneficial relationship
"promotes the well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents." (In re Autumn H.
(1994) 27 Cal.App.4th 567, 575.) If terminating parental rights "would deprive the child
of a substantial, positive emotional attachment such that the child would be greatly
3
harmed, the preference for adoption is overcome . . . ." (Ibid.) The existence of a
beneficial relationship is determined by considering "[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 . . . ." (Id. at p. 576.)
Examining the evidence in the light most favorable to the judgment (ibid.), we conclude
substantial evidence supports the court's findings. The court found that initially visits
were inconsistent, but visits became more consistent and were sometimes chaotic and
sometimes positive. The court found the children did not view T.S. as a parent; rather,
the children viewed their caregivers as their parents. The court concluded there was not a
parent-child bond such that termination of parental rights would be detrimental to the
children.
T.S.'s visits with the children were supervised for most of this case. For the first
year, T.S. did not take advantage of all of the visits she was offered. In October 2012 the
court gave the Agency discretion to allow unsupervised visits with notice to the children's
counsel and, with the concurrence of the children's counsel, overnight visits and a 60-day
trial visit. Unsupervised visits began in June 2013 and overnight visits began on July 27.
On July 29 the children were exposed to domestic violence between T.S. and Daniel E.
The Agency suspended unsupervised and overnight visits. In September the court
reinstated the supervision requirement and gave the Agency discretion to allow
unsupervised visits with notice to the children's counsel. All subsequent visits were
supervised. Beginning in August, T.S. visited consistently, for the most part, although
she was sometimes late.
4
During visits, T.S. sometimes acted as a parent and behaved appropriately and
affectionately. At other times, she displayed ignorance of appropriate parenting
techniques and had difficulty managing the children. She fluctuated between being
attentive to their needs and being unaware of what they were doing. The children
sometimes appeared happy to see T.S. and sometimes appeared ambivalent. The children
did not express distress at the close of visits. They did not view T.S. as an authority
figure and frequently asked other adults for assistance during visits. Brianna expressed
love for T.S. and fear of her.
The children's exposure to domestic violence had caused them emotional harm.
As a result, they suffered from anxiety, displayed traumatized behavior and were in
therapy. Daniel behaved aggressively, engaged in "self injurious behavior," and had
trouble following directions. He vomited when anxious or upset. Before visits, he often
displayed regressive behavior. After visits, he refused to eat and exhibited other
behavioral difficulties. Brianna could be impulsive and angry, and displayed behavior
consistent with sexual abuse.2 Before visits, the children became anxious. They
expressed unwillingness to visit with T.S. and sought reassurance that they would return
to the foster home after visits.
By the time of the section 366.26 hearing, nearly five-year-old Brianna and three-
year-old Daniel had been out of T.S.'s care for more than two years four months. The
2 In April 2012, while Brianna was still in T.S.'s care, there was a report that Brianna had been sexually abused by one of T.S.'s boyfriends, Daniel M. The allegation could not be substantiated. 5
children had lived with their foster parents for more than two years. The children were
attached to the foster parents and called them "mommy" and "papi." The foster parents
were loving, cognizant of the children's many needs and fulfilled those needs. The foster
parents wished to adopt the children. The children were thriving in the foster parents'
care and needed the stability, permanence and safety of adoption.
T.S. relies on In re S.B. (2008) 164 Cal.App.4th 289, in which this court
concluded the juvenile court erred by declining to apply the beneficial relationship
exception. (Id. at p. 301.) That case is distinguishable. There, the appellant father
"complied with 'every aspect' of his case plan" and placed the child's needs above his
own. (Id. at p. 298.) The child displayed a strong attachment to the father (id. at p. 298),
"became upset when the visits ended and wanted to leave with [him]" (id. at p. 294).
They "had an emotionally significant relationship." (Id. at p. 298.)
DISPOSITION
The judgment is affirmed.
NARES, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not err in declining to apply the beneficial relationship exception to the termination of parental rights, as substantial evidence supported the finding that no such bond existed.
Issues
Did the juvenile court err by declining to apply the beneficial parental relationship exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i)?
Disposition. affirmed
Quotations verified verbatim against the opinion
“The court concluded there was not a parent-child bond such that termination of parental rights would be detrimental to the children.”
“The children did not view T.S. as a parent; rather, the children viewed their caregivers as their parents.”