California Court of Appeal Jun 30, 2015 No. D066889Unpublished
Filed 6/30/15 In re M.N. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.N. et al., Persons Coming Under the Juvenile Court Law. D066889 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3690A-C) Plaintiff and Respondent,
v.
J. D.,
Defendant and Appellant.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed.
Patti L. Dikes for Defendant and Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Appellant J.D. (Mother) appeals a juvenile court judgment terminating her
parental rights to M.N., N.N., and H.N., ages 5, 4, and 3 (the children), and selecting
adoption as their permanent plans. (Welf. & Inst. Code, § 366.26; all further statutory
references are to this code unless noted.) Mother also appeals the court's order denying a
hearing on her modification motion, which sought placement of the children with her at
her current residential drug treatment facility, or resumption of her reunification services
and a transition plan. (§ 388.) The rights of her husband, the presumed father (Father),
visitation and contact" are statutory threshold requirements for a claim that this beneficial
parental relationship has been maintained. (§ 366.26, subd. (c)(1)(B)(i).)
On review, the Agency argues for an adapted or hybrid approach for review of this
type of decision about the beneficial parental relationship exception. In In re J.C. (2014)
226 Cal.App.4th 503, the court applied a substantial evidence standard of review to the
preliminary factual issues of whether the parent had maintained regular visitation and
contact with the child, and whether the parent proved he or she had a beneficial parental
relationship with the child. However, as to the weighing test, in which the juvenile court
balances the parent-child relationship against the benefits the child would derive from
adoption, the abuse of discretion test may be applied to evaluate this, a
" ' " 'quintessentially' " discretionary decision.' " (Id. at p. 531; In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314.)
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There is a discretionary aspect to the trial court's determination of a "benefit from
continuing the relationship," under the terms of section 366.26, subdivision (c)(1)(B)(i).
Based on the respective showings, the court must balance "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." (Autumn H., supra, 27 Cal.App.4th at
p. 575.) The court must find "a compelling reason for determining that termination
would be detrimental to the child," (§ 366.26, subd. (c)(1)(B)), due to the parent's regular
visitation and contact with the child, coupled with benefit to the child from continuing the
relationship. (In re C.F. (2011) 193 Cal.App.4th 549, 553.)
The weight of authority still applies the substantial evidence test to appeals from
decisions about the beneficial parental relationship exception. (Autumn H., supra, 27
Cal.App.4th 567, 575-577.) The juvenile court considers the issue on a case-by-case
basis, taking into account the many variables that can affect the parent-child relationship.
(Id. at pp. 575-576; In re J.C., supra, 226 Cal.App.4th 503, 532.) Among the variables to
be considered in evaluating the benefits in a parental relationship are the child's age, the
amount of time the child spent in the parent's care, whether the interactions are positive
or negative, and whether the child has particular needs that the parent can satisfy. (In re
Angel B. (2002) 97 Cal.App.4th 454, 467.)
"It is the trial court's role to assess the credibility of the various witnesses, to
weigh the evidence to resolve the conflicts in the evidence. We have no power to judge
the effect or value of the evidence, to weigh the evidence, to consider the credibility of
witnesses or to resolve conflicts in the evidence or the reasonable inferences which may
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be drawn from that evidence. [Citations.]" (In re Casey D., supra, 70 Cal.App.4th at
pp. 52-53.) In reviewing the sufficiency of evidence, the reviewing court makes
presumptions in favor of the judgment, views the evidence in the light most favorable to
the Agency, and gives the order the benefit of all reasonable inferences. (In re C.F.,
supra, 193 Cal.App.4th 549, 553; In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B. Application of Criteria: Visitation and Contact
With regard to the visitation issue, Mother did not have any contact with the
children between October 2013 and March 2014, when one visit took place. Again until
August 2014, she did not visit them, but called sometimes. The assessment social worker
reported that as of June 2014, the older children sometimes had trouble sleeping on the
days Mother telephoned them.
When Mother called the children at the end of July, after she started her Kiva
program, the caregiver observed that the children seem to be acting negatively after the
call. M.N. was "grunting," wet the bed, and told the caregiver that he did not want to
move back in with Mother and the people from the hotel. N.N. acted clingy and
constantly sought comfort from the caregiver.
Starting on August 13, 2014 and into September, Mother attended weekly 90-
minute supervised visits with the children at her Kiva program facility, and she made
weekly telephone calls. In the reports filed by the CASA and the Agency's social worker,
the visits were reported to be friendly, although the children mainly played independently
or with each other, without initiating much interaction with Mother. At the end of those
visits, each of the children acted glad to see the caregiver arrive, and they did not show
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any emotional distress in leaving Mother's company. M.N. kept asking the caregivers or
the CASA whether Mother was going to take him away or if the children were going to
have to move. The boys did not want to sleep in their own room.
In September 2014, N.N. started acting out at preschool more often, and he was
kept out of school temporarily on Mother's visitation days. He had a behavioral therapist
who was working with the caregivers on managing his outbursts. Later, he was not
allowed to return to the preschool because his aggressive behavior toward other children
could not be accommodated. The CASA recommended suspending contact with Mother.
At a visit on September 3, 2014, the CASA worker noticed that M.N. and N.N.
would briefly interact with Mother, then check in with the CASA for support. The
children separated from Mother without difficulty at the end of the visit. At the visit on
September 10, Mother asked N.N. to come play with her, but he said, "No." On
September 17, Mother hugged the children and brought them sack lunches. One of the
other residents at the Kiva facility told N.N. to "Have fun with your mommy," but he
replied, "That's not my mommy." The children had no problem separating from Mother
when it was time to leave. This record shows that although Mother made some efforts to
maintain contact and visitation, they were at best inconsistent and only marginally met
the first criterion for this exception to apply.
C. Application of Criteria: Benefits of Parental Relationship
In addition to visitation, these proceedings addressed other issues about substantial
or incidental benefit from the mother-child relationship. Mother testified at the hearing
that based on her weekly visits, the children were getting used to her and were happy to
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see her, sometimes calling her Mommy. Mother believed it was best for children to be
with their biological parents.
Father testified that it was unfortunate that it took so long for everything to start
progressing in the right direction. He could not predict whether "we" (he or Mother)
could stay clean and out of trouble.
Adoptions social worker Charese Phillips had been assigned to this case a few
months previously, and she had reviewed prior reports. From March to August 2014,
about five months, Mother had not visited the children. In the four visits since then that
Ms. Phillips had observed, she noticed that the children had no trouble separating from
Mother when it was time to say goodbye.
The assessment reports recommended adoption as the best permanent plan,
because the parents had not visited much or maintained a consistent relationship with the
children. They had not attended the children's medical appointments, although they were
encouraged to do so. The caregivers were seen to be the ones who were meeting the
children's medical, developmental, and emotional needs. If the caregivers were unable to
adopt for any reason, there were other approved local families interested in adopting a
sibling set like this one. The Agency took the view that it would not be detrimental to
any of the children to terminate Mother's parental rights.
At the close of the hearing, the court found by clear and convincing evidence the
children were likely to be adopted and none of the statutory exceptions applied. On this
record, the evidence supported the court's key finding that the children did not view
Mother as a parental figure. Mother did not demonstrate there was any significant,
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positive, emotional attachment, of a parental nature, between herself and these children.
(Autumn H., supra, 27 Cal.App.4th at p. 575; In re C.F., supra, 193 Cal.App.4th 549,
558-559 [parent cannot establish applicability of parent-child beneficial relationship
exception with a showing the child derives only a small measure of benefit from
maintaining parental contact].)
For example, M.N. called Mother by her first name, whereas all the children called
the caregivers Mommy and Daddy. The children had relationships with Mother, but the
relationships were consistently observed to be different from a parent/child relationship.
At times, the children enjoyed the visits, however, they mainly played with each other
and did not initiate contacts with Mother. They continued to look to the caregivers and
other familiar adults for security and stability. Mother's telephone calls in June and July
and her visitation experiences in August through September 2014 had some negative
consequences in the children's behavior afterwards.
The juvenile court had the responsibility of analyzing the evidence about all the
circumstances in the children's lives, and it had an adequate basis to conclude that they
did not have any special needs that only Mother could satisfy. (In re Angel B., supra, 97
Cal.App.4th 454, 467.) Without more evidence of a substantial, overriding benefit to the
children if their parental relationship with Mother were continued, this exception to the
adoption preference should not apply here. (Autumn H., supra, 27 Cal.App.4th at
pp. 575-576.) Substantial evidence supports the juvenile court's findings and orders. (In
re L.Y.L., supra, 101 Cal.App.4th 942, 947.)
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DISPOSITION
The judgment and order are affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
18
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying the mother's section 388 petition for modification without an evidentiary hearing, nor did it err in finding that the beneficial parent-child relationship exception to adoption did not apply.
Issues
Did the juvenile court abuse its discretion by denying the mother's section 388 petition for modification without an evidentiary hearing?
Was there sufficient evidence to support the juvenile court's finding that the beneficial parent-child relationship exception to adoption did not apply?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record does not show any abuse of judicial discretion or lack of supporting evidence, and we affirm the judgment and order.”
“The court observed that she was not ready to accept placement of the children.”