California Court of Appeal Sep 19, 2016 No. D069918Unpublished
Filed 9/19/16 In re Jasmine F. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JASMINE F., a Person Coming Under the Juvenile Court Law. D069918 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. CJ1183) Plaintiff and Respondent,
v.
ANGELICA F.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Laura J.
Birkmeyer, Judge. Affirmed.
Michelle Anne Cella, 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 Plattner-Grainger, Deputy County Counsel, for Plaintiff and
Respondent.
Angelica F. appeals a juvenile court judgment terminating her parental rights to
Jasmine F. and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26;
all further statutory references are to this code unless noted.) Angelica contends the court
erred in finding that no exception to adoption preference applied, i.e., the beneficial
parent-child relationship. (Id., subd. (c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th
567, 576 (Autumn H.).) Angelica was able to show the court that she maintained regular
visitation with Jasmine, and she argues that in light of their bond, the contact between
them conveyed much more than an "incidental benefit." (Autumn H., at p. 575.) She thus
claims the evidence did not support the decision to sever her parental relationship.
The record does not show any lack of supporting evidence for the judgment, or
any abuse of judicial discretion, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Jurisdiction, Disposition, and Six-Month Hearing
In July 2014, then-eight-year-old Jasmine was staying with Angelica at a homeless
shelter when a referral was made to the San Diego County Health and Human Services
Agency (Agency) that Jasmine had a large purple-yellow bruise on her face. When
interviewed, Angelica admitted to grabbing the child's face. Jasmine told authorities that
she was afraid of her mom, who slapped her across the face. A medical doctor concluded
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there was evidence Jasmine had been physically abused. She was taken into protective
custody and detained in a confidential foster home. Her biological father is unknown.
The Agency filed a petition alleging that Angelica had excessively disciplined
Jasmine, subjecting her to serious physical harm and substantial risk of injury by
grabbing or slapping her several times. (§ 300, subd. (a).) In its detention report, the
Agency stated it had received a referral in the past few days that Jasmine had facial
bruising. When interviewed, Angelica initially denied abusing Jasmine, but admitted she
got frustrated in trying to get her to stop crying, and grabbed her by both cheeks. Based
on medical opinion, the Agency believed that returning Jasmine to an unchanged
environment raised risks of further abuse.
Following investigation, the Agency's jurisdiction report recommended that a
dependency case be established for Jasmine. Angelica had two older children who had
been raised by relatives, and her adult son was in the process of obtaining guardianship of
his 15-year-old sister (half siblings) in a probate court proceeding. Angelica's own
mother had schizophrenia and the son believed Angelica showed the same type of illness
and paranoia, and he consequently did not maintain a relationship with Angelica. He was
unable to care for his half sister, Jasmine.
In August 2014, Angelica admitted to the allegations of the petition and the
juvenile court asserted jurisdiction over Jasmine. She was placed in foster care, and the
court ordered that Angelica receive reunification services, including weekly supervised
visits. A court-appointed special advocate (CASA) was provided for Jasmine in October
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2014. She reported that Jasmine had not been attending school regularly and was having
academic problems. Angelica was still living in a homeless shelter.
Jasmine was moved from her original foster home in December 2014, due to
allegations she and other children at that home were engaging in inappropriate sexual
behavior. She participated in therapy for a while and was adjusting to her new, more
specialized foster care placement. She had some difficult behaviors related to lack of
hygiene and was learning new habits.
As of February 2015, the time of the six-month review hearing, Angelica had
completed a parenting class, but had shown difficulty in understanding child development
issues for an eight year old. Angelica would not participate in in-home parent training
services. She attended individual therapy and kept up her weekly supervised visitation.
At the review hearing, the court continued reunification services for another six months,
while Jasmine remained with the foster mother (the caregiver).
B. Twelve-Month Hearing and Termination of Reunification Services
During March through July 2015, Angelica received psychological evaluations.
Angelica telephoned Jasmine regularly until May 2015, when she stopped.
In June 2015, a psychiatrist diagnosed Angelica with a schizotypal personality
disorder, characterized by paranoid and obsessive thinking, and after other visits, changed
her diagnosis to schizophrenia-paranoid type and posttraumatic stress disorder. The
Agency social worker decided that supervision of visits was still necessary, and
recommended that Angelica receive additional psychiatric treatment and follow-up.
Angelica met with a therapist in June 2015 and attempted to participate in conjoint
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therapy with Jasmine. However, the therapist terminated joint therapy because Jasmine
showed discomfort when Angelica talked about inappropriate topics and could not be
redirected.
Between June and August 2015, Angelica was discharged from a local homeless
shelter after staff observed she seemed delusional and might need a psychiatric facility.
She had shown difficulty participating in the shelter's healthy relationships class and
could not remain on topic. She moved to another shelter. Angelica was struggling with
mental health issues, believing everyone was against her and somebody wanted to hurt
her child. She seemed unstable, was not taking medication regularly, and was unable to
take responsibility for any protective issues.
In July 2015, the social worker discussed placing the child with her maternal aunt,
who agreed to submit to a relative home assessment. Jasmine had been in the same foster
home since February 2015 and, since she was the only child there, she was receiving her
caregiver's full attention to her academic and behavioral problems, and seemed to be
much happier.
According to the CASA's August 2015 report, she had supervised a few visits
since October 2014 and noticed that although they were generally positive in nature,
Jasmine chose her own activities and did not participate in those that Angelica suggested.
The CASA recommended continuing supervised visits and implementing additional
services for Angelica. During visits in the summer and fall of 2015, Angelica was
showing more knowledge about child development. Although she still needed help
during visits and once fell asleep, apparently because her medicine made her drowsy, she
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empathized and interacted appropriately with Jasmine. Sometimes she treated Jasmine
like a baby who needed extra help. According to the visitation center, Angelica had
cancelled or not shown up for three visits, and the center planned to close her case if that
kept occurring.
Angelica told an Agency social worker in August 2015 that she was back on the
streets and did not intend to return to a shelter because she could not handle the people
there. Around the same time, Angelica told workers that she could not offer any stability
to Jasmine, so it would be best for her to remain in out-of-home care. Angelica explained
there was nothing worse for a child than homelessness, as they had experienced it.
Although Angelica started staying at a different shelter, she was asked to leave in
September 2015 for not following the program's rules, but later was allowed to return to
the day center. Angelica requested more time to receive reunification services and started
psychiatric treatment. The Agency scheduled a team decision meeting to explore the plan
of placing Jasmine with her maternal aunt, under guardianship.
In preparation for the 12-month review hearing in September 2015, the Agency
recommended the case be set for a hearing to select and implement a permanent plan.
The court found it would be detrimental to return Jasmine to parental custody and,
although reasonable services had been provided, Angelica had not made substantive
progress with the case plan. There was no substantial probability Jasmine could be
returned to parental care by the 18-month date. The court terminated reunification
services and scheduled a permanency planning hearing under section 366.26.
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In September and October 2015, Angelica came to Agency offices and told social
workers that people, including the caregiver, were punishing Jasmine all day by making
her gag and holding her nose so she couldn't breathe and were giving her pills to control
her. The social workers assured her Jasmine was safe and nobody was hurting her, but
Angelica remained upset.
In December 2015, Angelica's psychiatrist noted that she was still presenting
psychotic features and he had increased her medication recently, in an attempt to reduce
her hallucinations. The doctor believed that she might not be taking her medicine, and
her recently disclosed drug use in the past (methamphetamine) may have had a critical
impact on her cognitive functioning.
C. Permanency Planning Hearing and Ruling
The Agency prepared an assessment for the contested permanency planning
hearing, which was continued from January to February 26, 2016. (§ 366.26.) The
Agency evaluated Jasmine as both specifically and generally adoptable, as it was likely
that the caregiver would be approved for adoption and if not, there were another five
approved homes interested in adopting. Jasmine wanted to continue to live with the
caregiver and was not showing any behavioral problems. The caregiver was willing to
allow Angelica and the half siblings to have further contact and visitation, as long as the
visits were appropriate and beneficial to Jasmine.
The assessment social worker observed four visits between October and December
2015. Angelica offered Jasmine snacks and generally watched her play on her own.
They hugged hello and goodbye and said they loved each other, but sometimes did not
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interact much. Once, Angelica had to be reminded not to talk about the case and got
angry, yelling and leaving the room. Jasmine picked up the toys as requested and then sat
quietly in a chair with her head down. She told the social worker she wasn't scared
because she was used to Angelica acting that way. Another time, the two disagreed about
Jasmine's Christmas list and the child started crying, hiding and refusing to participate.
They started talking again and when Angelica hugged her goodbye, Jasmine did not hug
her back. At another visit, Angelica found some of the games boring and stopped
interacting with the child, falling asleep instead. When the visit was over they hugged
goodbye. The caregiver explained that Jasmine was generally a happy child, and the
visits were not upsetting to her.
In the CASA's January 2016 report, she observed affection being demonstrated
between Jasmine and the caregiver. They attended church, where Jasmine participated in
youth activities. She was making friends with girls her age and was going on local
outings with the caregiver, who was committed to adopting Jasmine if reunification with
Angelica did not work out. The caregiver was also open to maintaining Jasmine's
familial relationships. The maternal aunt had other ongoing responsibilities and was not
available to pursue custody. The CASA recommended termination of parental rights so
Jasmine could be adopted.
The social worker observed that Angelica was still having mental health
difficulties. In January and February 2016, she notified police that the caregiver wanted
to suffocate her child and was making her vomit. The Agency investigated a referral
alleging such physical abuse and concluded it was unfounded. Because of Angelica's
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behavior and statements, the Agency switched her from the visitation center to having
visits at its own offices, to increase the supervision. The social worker interviewed
Jasmine privately and she said she was doing fine, was not being hurt or hit, and wanted
to be adopted by her aunt or her caregiver. Regarding the adoption possibility, she felt
bad for her mother but liked where she was living now.
The contested section 366.26 hearing was held February 26, 2016. Counsel
submitted the matter as a document trial. The court received into evidence the
assessment and addendum reports by the social worker and by the CASA. Although the
social worker attended, she was not requested by the parties to testify. According to the
Agency, it would not be detrimental to Jasmine if Angelica's parental rights were
terminated, since the two were not observed to have a healthy parent-child relationship.
On balance, the Agency believed that Jasmine was likely to benefit more from a
permanent plan of adoption than from maintaining a relationship with Angelica. Counsel
for Jasmine noted that she was flourishing in her current foster home, which was
consistently supportive to her. Jasmine's counsel agreed with the Agency that although
mother and child do have a relationship, Jasmine would not benefit from maintaining that
relationship in such a manner as to outweigh the consistency and permanency that
adoption would provide.
In argument, Angelica contended that since she had continued to visit Jasmine on
a regular basis, they had kept up their bond such that detriment would be a likely result if
those ties were severed. (§ 366.26, subd. (c)(1)(B)(i).) Angelica loved and worried about
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Jasmine and wanted to continue to be a part of her life, and requested the court to adopt a
lesser permanent plan than adoption.
At the close of the hearing, the court commented that Angelica had regularly
visited and showed she was loving and caring toward Jasmine, even though there were
times when she was late or missed visits. The court understood that Angelica has a deep
and abiding love for Jasmine, who loves her mother. The court then analyzed the
showing about the benefits to Jasmine from maintaining the parental relationship, as
opposed to an adoption plan, and noted there were many benefits to adoption. Although
Jasmine had lived with Angelica for a significant portion of her life, some of that time
had been characterized by chaos and neglect and not meeting her needs. At times,
Angelica showed she was unable to fully appreciate all of Jasmine's needs as a nine-year-
old girl, and she treated Jasmine as younger than she was. Jasmine had blossomed and
flourished under the security and stability provided to her in the caregiver's home over
the past year.
Accordingly, the court found there was absolutely no evidence that a statutory
exception applied, such that severing the natural parent-child relationship would deprive
Jasmine of any substantial positive emotional attachment and therefore cause harm to her.
The court determined it would not be detrimental to Jasmine to terminate parental rights,
and a lesser plan than adoption would be a disturbance to her. Adoption was found to be
in her best interests as the permanent plan, and Jasmine was referred to the Agency for
adoptive placement. Angelica appeals.
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DISCUSSION
I
APPLICABLE STANDARDS ON TERMINATION OF PARENTAL RIGHTS
The permanency planning process aims "to end the uncertainty of foster care and
allow the dependent child to form a long-lasting emotional attachment to a permanent
caretaker." (In re Emily L. (1989) 212 Cal.App.3d 734, 742.) The primary consideration
at the hearing is the best interests of the child. (In re Kerry O. (1989) 210 Cal.App.3d
326, 333.) At the permanency planning hearing the court has numerous choices, with
termination of parental rights and placement for adoption as the first choice. (§ 366.26,
subd. (b)(1).)
To support an asserted beneficial relationship exception to adoption, the court
must find "a compelling reason for determining that termination would be detrimental to
the child." (§ 366.26, subd. (c)(1)(B); In re C.F. (2011) 193 Cal.App.4th 549, 553
(C.F.).) The juvenile court considers the detriment issue on a case-by-case basis, taking
into account the many variables that can affect the parent-child relationship. (Autumn H.,
supra, 27 Cal.App.4th at pp. 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532 (J.C.).)
Applicable factors include the child's age and amount of time spent in the parent's care,
and whether the interactions have been positive or negative. (In re Angel B. (2002) 97
Cal.App.4th 454, 467 (Angel B.).) Whether the child has particular needs that the parent
can best satisfy is important. (Ibid.) The court cannot quantify the amount of parental
care provided when a child is in out-of-home care, and it should analyze the benefits of
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continued contact between parent and child within the context of the visitation allowed.
(In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538 (Brandon C.).)
This court in In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.)
applied a substantial evidence standard of review to the factual issues about the existence
of a beneficial parental relationship, including regular visitation and contact with the
child. On those factual issues, we make presumptions in favor of the judgment, while
viewing the evidence in the light most favorable to the Agency and giving the judgment
the benefit of all reasonable inferences. (C.F., supra, 193 Cal.App.4th at p. 553; In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) Here, it is not disputed that Angelica
met the requirements of showing her regular visitation and contact with Jasmine.
However, as to the statutory test for evaluating whether there is "a compelling
reason for [determining] that termination would be detrimental to the child," a reviewing
court applies an abuse of discretion test. (Anthony B., supra, 239 Cal.App.4th at p. 395.)
This weighing process under section 366.26, subdivision (c)(1)(B)(i) involves the
juvenile court's discretionary balancing of the significance and strength of the parent-
child relationship against the benefits the child would derive from adoption. (J.C., supra,
226 Cal.App.4th at pp. 530-531; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.)
II
APPLICATION OF CRITERIA: SUBSTANTIAL AND SIGNIFICANT BENEFIT
The evidence showed that Jasmine is likely to be adopted, either by the caregiver
or other approved local families wishing to adopt a child with such characteristics.
Angelica contends she demonstrated there was a beneficial parental relationship of a
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nature that should preclude adoption, or at least support a lesser permanent plan.
(§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.) To the extent
Angelica contends that a plan short of adoption should have been selected, the juvenile
court was subject to the mandatory preference for adoption over legal guardianship.
(§ 366.26, subd. (b)(1).) "Guardianship, while a more stable placement than foster care,
is not irrevocable and thus falls short of the secure and permanent future the Legislature
had in mind for the dependent child." (In re Lorenzo C. (1997) 54 Cal.App.4th 1330,
1344; In re Fernando M. (2006) 138 Cal.App.4th 529, 536 [preference for adoption over
other permanent plans is overridden only if statutory exception applies].) Also, the
maternal aunt had been unable to participate fully in that capacity. On this record, we
need only assess the showing about Jasmine's substantial benefit from continuing to have
a parent-child relationship with Angelica.
Even acknowledging there was evidence in the record that Jasmine loves Angelica
and she usually enjoyed their interactions, the issue before the juvenile court was whether
that relationship remained so significant and compelling that the benefit to Jasmine of
preserving it outweighed the stability and benefits to be provided by adoption. (Anthony
B., supra, 239 Cal.App.4th at p. 395.) Over time, Angelica's participation in a parental
role during supervised visitation was fairly limited and did not obviously enhance their
relationship. Although Jasmine lived with Angelica for over eight years, their lifestyle
was chaotic and Jasmine had experienced neglect during that time. Angelica told social
workers in the fall of 2015 that she understood that Jasmine would suffer from continuing
to grow up homeless with her. During visits toward the end of 2015, Angelica and
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Jasmine were affectionate but often did not interact much during playtime. Angelica's
mental health and social problems were consistently of a nature that made it unlikely for
her to be able to provide a significant degree of security and stability to Jasmine.
(Autumn H., supra, 27 Cal.App.4th at p. 575.)
The court was entitled to credit the assessments and conclusions of the social
workers who documented the ongoing nature of the problems Angelica continued to face
in developing her ability to parent effectively. (In re Casey D. (1999) 70 Cal.App.4th 38,
53.) Jasmine did not have appear to have special needs that only Angelica could satisfy.
(Angel B., supra, 97 Cal.App.4th at pp. 467-468; Autumn H., supra, 27 Cal.App.4th at
pp. 575-576.) Even within the context of the visitation allowed, the juvenile court had
good reason to evaluate the evidence as showing that the benefits that Jasmine was
deriving from continuing contact with Angelica were mainly incidental in nature, rather
than clearly significant or substantial. (Brandon C., supra, 71 Cal.App.4th at pp. 1537-
1538; Autumn H., at pp. 575-576; C.F., supra, 193 Cal.App.4th at pp. 558-559.)
Over the year that she had been living with the caregiver, Jasmine had been able to
overcome some of her problematic behaviors and had grown in some positive ways. The
protective and loving foster home allowed her to participate to a greater degree in school
and outside activities than she had been able to do, when under Angelica's care. Also, the
caregiver expressed willingness to allow continued family contact between Jasmine and
Angelica, if it were beneficial and appropriate in nature. The record supports the court's
conclusion that adoption would best promote the statutory purposes of stability and
permanence for Jasmine. (§ 366.26, subd. (b)(1); L.Y.L., supra, 101 Cal.App.4th at
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p. 947.) The juvenile court did not abuse its discretion when finding that the beneficial
relationship exception to adoption did not apply to these parties. (Autumn H., supra, 27
Cal.App.4th at pp. 575-576.)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the termination of parental rights, finding that the mother failed to establish the beneficial parent-child relationship exception to the statutory preference for adoption.
Issues
Did the juvenile court err in finding that the beneficial parent-child relationship exception to adoption did not apply?
Did the evidence support the court's determination that termination of parental rights was in the child's best interest?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The record does not show any lack of supporting evidence for the judgment, or any abuse of judicial discretion, and we affirm.”
“The juvenile court did not abuse its discretion when finding that the beneficial relationship exception to adoption did not apply to these parties.”