California Court of Appeal Jan 5, 2016 No. E063731Unpublished
Filed 1/5/16 In re L.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.B., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E063731
Plaintiff and Respondent, (Super.Ct.No. SWJ1200638)
v. OPINION
M.S. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge.
Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant mother.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant father.
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Gregory P. Priamos, County Counsel, and Julie Koons Jarvi, Deputy County
Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Mother and father (parents) appeal a juvenile court order terminating their parental
rights to their daughter, L.B. (born in 2010), under Welfare and Institutions Code section
DPSS reported in its section 387 jurisdiction/disposition hearing report that mother
stated on December 22, 2014, that she had used methamphetamine the week before. Her
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usage increased after L.B. was removed from her. Parents were homeless. Parents
visited L.B. twice a week. At the end of her first visit in December 2014, L.B. reportedly
became very upset and confused, and screamed and cried. L.B. no longer showed such
distress when subsequent visits ended. During a visit on December 24, 2014, father did
not interact much with L.B., and L.B. did not appear upset when her parents left. She
appeared very happy when her foster parent came to get her.
DPSS concluded parents had not benefitted from 29 months of reunification
services. Mother continued to abuse drugs and father had failed to comply with random
drug and alcohol testing or attend an aftercare outpatient substance abuse program.
Father was employed, laying tile. Father complied with an order on January 6, 2015, to
provide a hair sample for testing. The test results were positive for amphetamine and
methamphetamine at an extremely high level. Father did not comply with his case plan
requirements for counseling or participating in an outpatient substance abuse aftercare
program. Although father requested and received a referral to an inpatient substance
abuse treatment program, he had not enrolled in the program. Father was told on January
21, 2015, that before visiting L.B., he must provide a saliva drug test sample on the days
he was scheduled to visit L.B. twice a week. Thereafter, father did not call to set up a
visit.
On December 30, 2014, mother admitted she had been using alcohol and
methamphetamines, and also took Clonipin, received from a nonphysician for anxiety.
Mother did not attend her outpatient program that day, was not going to counseling, and
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did not attend her doctor appointment for monitoring her psychotropic medications for
anxiety and depression.
On January 7, 2015, DPSS was notified mother was involved in a hit and run
accident in which she was driving down the wrong side of the street and hit a parked car.
Her car was found abandoned nearby. On January 16, 2015, mother entered an inpatient,
45-day treatment program. After beginning the program, she tested positive for drugs on
January 18, 20, 21, and 23, 2015. DPSS reported mother had been in substance abuse
treatment programs at least four times during the instant dependency proceedings, and
was enrolled for a second time in an inpatient program.
DPSS reported in an addendum report filed in January 2015, that L.B.’s paternal
first cousin once removed and spouse (prospective adoptive parents) were being assessed
for placement. L.B. had begun visiting them.
On February 4, 2015, the court conducted a joint section 387
jurisdiction/disposition hearing and review hearing on the original amended petition. As
recommended by DPSS, the court denied/terminated reunification services and set a
section 366.26 hearing. Supervised visits were reduced to twice a month.
Section 366.26 Hearing
DPSS reported in May 2015, that L.B. had been placed with her prospective
adoptive parents on February 10, 2015, and had bonded with them. L.B. was doing well
in a preschool program. She appeared to be a happy, well-adjusted child. Although in
February 2015, the court authorized parents to visit L.B. twice a month, during the
subsequent four-month period, father visited L.B. only once, on March 3, 2015, and
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mother visited twice. Two of parents’ scheduled visits in March and April were
cancelled because parents tested positive for methamphetamine the day of the visits.
Father also cancelled another visit on April 28, 2015.
L.B. did well during her visits with parents. She was not emotional, even though
mother was at times. L.B.’s prospective adoptive parents reported that after mother’s
April visit, L.B. said she missed her half-brother, D.T. (mother’s older son). She seemed
somewhat confused and did not want to talk about her visit with mother. After the visit,
L.B. had some separation anxiety with her prospective adoptive parents. She became
very upset and cried and did not want her prospective adoptive mother to leave when
dropped off at preschool the day after the visit. This reportedly never had occurred
before. L.B. was normally eager and happy to go to preschool.
Prospective adoptive parents were open to allowing L.B.’s grandparents, half-
brother, and her extended family remain in contact with L.B. but requested time first to
bond with L.B. After conducting a preliminary assessment of L.B.’s prospective
adoptive parents, DPSS concluded L.B. was happy and comfortable in the home, which
provided the stability and security L.B. needed. L.B. and her prospective adoptive
parents had established a strong bond. L.B. looked to them for love and attention. DPSS
recommended the court terminate parental rights and allow L.B.’s prospective adoptive
parents to proceed with adoption.
During the section 366.26 hearing on June 2, 2015, mother testified that at the
beginning of visits, L.B. would first run to mother and then run to father. She was happy
to see parents. L.B. called mother “mom” or “mama,” and father “dad” or “daddy.” A
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couple of times L.B. called mother “Kate,” the name of her prospective adoptive mother.
Mother believed L.B. was strongly bonded to her. Mother said she had been L.B.’s
primary caretaker throughout L.B.’s life, until December 5, 2015, when L.B. was
removed from mother’s care. Visitation was reduced from twice a week to twice a month
in January 2015.
Maternal grandmother testified L.B. loved mother. They had a great relationship
and a strong parent-child bond. According to maternal grandmother, during visitation,
mother took good care of L.B. and parents acted in a parental role. The DPSS social
worker testified L.B. called her prospective adoptive parents mommy and daddy. L.B. no
longer exhibited any negative behaviors at the end of visits or asked about parents
between visits.
Mother argued at the section 366.26 hearing that the beneficial parent relationship
and sibling relationship exceptions to terminating parental rights (§ 366.26, subd.
(c)(1)(B)(i)) applied. Father joined in mother’s contentions. The trial court denied both
exceptions and terminated parental rights. The court found it was likely L.B. would be
adopted and that adoption was in her best interests. The court further concluded it would
not be in L.B.’s best interests for L.B. to continue her relationship with parents, noting:
“[I]t would be a significant stretch for the Court to say that mother and father had
consistent visitation.”
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III
BENEFICIAL PARENT RELATIONSHIP EXCEPTION
Parents contend the trial court abused its discretion by rejecting the beneficial
parent relationship exception to adoption under section 366.26, subdivision (c)(1)(B)(i).
A. Applicable Law
At the section 366.26 hearing, the juvenile court’s task is to select and implement
a permanent plan for the dependent child. When there is no probability of reunification
with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re
Marina S. (2005) 132 Cal.App.4th 158, 164.) If the juvenile court finds by clear and
convincing evidence that a child is likely to be adopted, the juvenile court must terminate
parental rights, unless one of several statutory exceptions applies. (§ 366.26, subd. (c)(1);
ibid.)
Under section 366.26, subdivision (c)(1)(B)(i), the beneficial parent relationship
exception may apply when a parent has “maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.” (§ 366.26, subd.
(c)(1)(B)(i); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden
to show that the statutory exception applies”].) The parent has the burden of showing
either that “(1) continuation of the parent-child relationship will promote 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 [citation] or (2) termination of the parental
relationship would be detrimental to the child.” (In re Angel B. (2002) 97 Cal.App.4th
454, 466 (Angel B).)
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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 Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In
re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) The relationship that gives rise
to this exception to the statutory preference for adoption “characteristically aris[es] from
day-to-day interaction, companionship and shared experiences. Day-to-day contact is not
necessarily required, although it is typical in a parent-child relationship.” (In re Casey D.
(1999) 70 Cal.App.4th 38, 51.) To overcome the preference for adoption, the parent must
show that severing the parent-child relationship “would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed. [Citations.]
A biological parent who has failed to reunify with an adoptable child may not derail an
adoption merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent. [Citation.]” (Angel
B., supra, 97 Cal.App.4th at p. 466.)
Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has
repeatedly found the parent unable to meet the child’s needs, it 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. (2000) 78 Cal.App.4th 1339, 1350; see In re
K.P. (2012) 203 Cal.App.4th 614, 621 (K.P.) The juvenile court may consider the
relationship between a parent and a child in the context of a dependency setting, but the
overriding concern is whether the benefit gained by continuing the relationship between
the biological parent and the child outweighs the benefit conferred by adoption. (In re
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Lukas B. (2000) 79 Cal.App.4th 1145, 1155-1156; In re Autumn H. (1994) 27
Cal.App.4th 567, 575.)
B. Standard of Review
California courts have disagreed as to the applicable standard of review for an
appellate challenge to a juvenile court ruling rejecting a claim that an adoption exception
applies. We agree with the view expressed in K.P., supra, 203 Cal.App.4th at pages 621-
622, “that the review of an adoption exception incorporates both the substantial evidence
and the abuse of discretion standards of review.” The substantial evidence standard of
review applies to the factual determination of whether a beneficial parent or sibling
relationship exists. (Ibid.) The abuse of discretion standard of review applies when
determining whether the existence of that relationship constitutes a compelling reason for
determining that termination would be detrimental to the child. (Ibid.)
C. Discussion
Parents have not demonstrated that their relationship with L.B. at the time of
termination of their parental rights, after over two and a half years of juvenile
dependency proceedings, was so significant that termination would greatly harm L.B.
Nor have parents established that their relationship with L.B. outweighed the well-being
L.B. would gain in a permanent, stable adoptive home. (Angel B., supra, 97 Cal.App.4th
at p. 466.) Parents repeatedly failed to meet L.B.’s needs during their repeated abuse of
controlled substances, treatment, and relapsing, over and over again. Parents long history
of abusing drugs and relapsing, unfortunately, provides little hope of parents permanently
overcoming their substance abuse. Overwhelming evidence demonstrates that, as a
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consequence of parents’ ongoing substance abuse, maintaining a parental relationship
with L.B. would likely subject L.B. to the detrimental and harmful consequences of
parents’ emotional, mental, physical, and financial instability, along with harmful
exposure of L.B. to parents’ substance abuse, domestic violence, and unlawful conduct.
Although L.B. was initially strongly bonded to parents and parents held a parental
role in L.B.’s life while residing with her, after L.B.’s detention in December 2014, that
bond dissipated and parents’ parental role ended. Parents were given the opportunity to
visit L.B. after removal. Parents, however, failed to do so consistently and regularly
because of their continued abuse of controlled substances.
Because parents demonstrated they were willing to do what was required to be
good parents, the juvenile court and DPSS gave parents every benefit of the doubt and
every opportunity to do so, over a relatively lengthy period of time. Nevertheless,
parents failed time and again to rehabilitate. There came a point when the best interests
of L.B. took precedence, because, “‘. . . The reality is that childhood is brief; it does not
wait while a parent rehabilitates himself or herself. The nurturing required must be given
by someone, at the time the child needs it, not when the parent is ready to give it. [¶]
The Legislature has expressed increasing concern with the perceived and accurate reality
that time is of the essence in offering permanent planning for dependent children. . . .’”
(Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251, quoting In re Debra M.
(1987) 189 Cal.App.3d 1032, 1038-1039.)
Here, the time came when it became clear that it was not in L.B.’s best interest to
allow parents to continue to maintain a relationship with L.B. at the expense of depriving
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L.B. of a stable, permanent, loving home. Parents demonstrated they were unable to
maintain sobriety and there was a high probability they would show up for visitation
under the influence of controlled substances.
“The factors to be considered when looking for whether a relationship is important
and beneficial are: (1) the age of the child, (2) the portion of the child’s life spent in the
parent’s custody, (3) the positive or negative effect of interaction between the parent and
the child, and (4) the child’s particular needs. (In re Jerome D. [(2000) 84 Cal.App.4th
1200,] 1206.) While the exact nature of the kind of parent/child relationship which must
exist to trigger the application of the statutory exception to terminating parental rights is
not defined in the statute, the relationship must be such that the child would suffer
detriment from its termination.” (Angel B., supra, 97 Cal.App.4th at p. 467, fn. omitted.)
After L.B.’s removal from parents, primarily because of parents’ substance abuse
and inability to care for L.B., visits were supervised and became infrequent in 2015.
Initially, in December 2014, visits were twice a week, but in January 2015, visits were
reduced to twice a month, subject to parents testing negative for controlled substances
before each visit. During the four-month period preceding termination of parental rights
in June 2015, father visited L.B. only once and mother visited L.B. twice. Parents missed
several scheduled visits because they tested positive for drugs. Parents failed to maintain
regular and consistent visitation. Furthermore, without visitation, there could be no
fulfilling a parental role. Despite parents’ efforts to rehabilitate over two and a half years
of receiving services, which included numerous referrals to inpatient and outpatient
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substance abuse treatment programs, parents repeatedly relapsed and continued to abuse
drugs.
At the time of the section 366.26 hearing, L.B. had been living happily with her
prospective adoptive parents for four months. She had bonded with them and was doing
well. During L.B.’s most recent visits with parents, she did not show a strong attachment
to parents. The parties stipulated the social worker would testify that L.B. demonstrated
no negative behaviors at the end of visits. She also did not ask her caretaker about
parents between visits and called her prospective adoptive parents “mommy and daddy.”
Although, initially, after L.B. was removed from parents in December 2014, she cried
and screamed at the end of her first visit, this behavior subsided as L.B. became
accustomed to the visitation routine.
The totality of the evidence supports the trial court’s finding that there would be
no significant detriment in terminating parents’ parental rights. At the time of the section
366.26 hearing, parents did not hold a parental role or have a substantial, positive
emotional attachment such that L.B. would be greatly harmed by termination of their
parental rights. (Angel B., supra, 97 Cal.App.4th at p. 466.) L.B. was adoptable and her
prospective adoptive parents wished to adopt her.
Although parents attempted to overcome factors leading to the removal of L.B.
and initially visited L.B. consistently, the trial court did not abuse its discretion in
rejecting the beneficial parent relationship exception because during the six-month period
preceding termination of parental rights, parents no longer consistently visited L.B., did
not act in a parental role, and continued to abuse drugs, including on the day of scheduled
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visits. The trial court reasonably concluded that parents’ relationship with L.B. did not
outweigh the benefits of adoption by her prospective adoptive parents, with whom L.B.
had bonded.
V
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
KING Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the termination of parental rights, finding that the parents failed to meet their burden of proving the beneficial parent relationship exception under Welfare and Institutions Code section 366.26.
Issues
Did the juvenile court err in rejecting the beneficial parent relationship exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(i)?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Parents contend the juvenile court erred in rejecting the beneficial parent relationship exception to terminating their parental rights (§ 366.26, subd. (c)(1)(B)(i)). For the reasons stated below, we reject parents’ contentions and affirm the judgment.”
“[I]t would be a significant stretch for the Court to say that mother and father had consistent visitation.”