IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 11, 2012
IN RE S. P. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
SILVIA P., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD227022, JD227023, JD227024 & JD227025)
The opinion of the court was delivered by: Blease , Acting P. J.
In re S.P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Mother (Silvia P.) appeals from the juvenile court's orders terminating her parental rights and creating a permanent plan of adoption as to minors A.P., M.P., An.P., and S.P. (Welf. & Inst. Code, § 366.26.)*fn1 Mother contends the court erred by finding that the beneficial parental relationship exception to adoption did not apply. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2008, Sacramento County Department of Health and Human Services (the Department) filed non-detaining section 300 petitions as to A.P (then nine years old), M.P (then three years old), An.P. (then one year old), and S.P. (then six months old), alleging that father had physically abused A.P., who was developmentally delayed, and mother had failed to protect the minors. The petitions were dismissed without prejudice in May 2008.
In February 2009, the Department filed new section 300 petitions, alleging that father continued to abuse A.P. physically, yet mother maintained a relationship with him and allowed him continued contact with the minors. According to the protective custody warrants issued for the minors, father refused to sign the Department's informal supervision plan. Mother, feeling overwhelmed, voluntarily placed the minors in a crisis nursery in October 2008, from which they were moved to foster care.
The detention report stated that father had relocated to Texas. Despite being told not to contact the family again until he had participated in services, he had returned and visited the minors along with mother. Mother had not yet engaged in or benefited from services and still failed to grasp the risk to the minors from contact with father.
The jurisdiction/disposition report recommended continued services for mother.*fn2 Mother said she had broken off her relationship with father, but still defended him and denied any history of domestic violence. She was unemployed and had no source of income. She suffered from diagnosed depression, for which she was seeing a psychiatrist and a therapist. She was undergoing a high-risk pregnancy; the fetus had major medical conditions and would need prolonged hospitalization after birth.*fn3
A.P., An.P., and S.P. were placed together and doing well; M.P., who had behavior problems, was placed separately. The minors' health had improved dramatically since their placement in foster care. A.P. said she did not feel safe with father, who yelled at her and mother and sometimes hit mother with a stick.
At the jurisdiction/disposition hearing in June 2009, the juvenile court exercised jurisdiction over the minors, ordered them to remain in foster care, and granted services to the parents.
The permanency report, filed in November 2009, recommended six more months of services to the family. Father remained in Texas, where he had begun services. Mother had completed individual counseling and parenting and continued to see a psychiatrist for depression, but had not completed domestic violence counseling. Mother's visitation with the minors had gone well, but she had not progressed to unsupervised overnight visitation because she lacked suitable housing. The minors continued to do well in their placements. A.P., who was in sixth grade but functioned cognitively on the kindergarten/first grade level, had an Individual Education Plan and had recently begun therapy at River Oaks Center, as well as seeing a psychiatrist for attention deficit hyperactivity disorder and depression; M.P. had also recently begun therapy at River Oaks Center. The foster parents of A.P., An P., and S.P. would be willing to adopt them; M.P.'s foster parents would consider legal guardianship.
At the permanency hearing in December 2009, the juvenile court ordered further services for the parents and unsupervised visitation for mother.
The permanency review report, filed in March 2010, recommended six more months of services for the parents. Mother had completed court-ordered counseling and domestic violence programs and continued to see a psychiatrist for depression, but needed ongoing counseling for anxiety and stress. Mother's unsupervised visits with the minors went well. Once she obtained suitable housing, the minors could be returned to her custody. All of the minors wanted to live with mother; the three younger minors also wanted to live with father, but A.P. did not because she still feared that he might hurt her.
In April 2010, after mother was approved for temporary housing, the juvenile court placed the minors with her under dependent supervision.
An in-home review report filed in July 2010 recommended six more months of services, with the minors to continue in mother's custody. Although mother was generally doing well with the minors, she had not started voluntary counseling, still got overwhelmed at times, and had once had unauthorized adults in her home.
In August 2010, the juvenile court ordered father not to "be around" mother's home without court approval.
In September 2010, the Department recommended removing the minors from mother's custody and terminating the parents' services. There had been three emergency referrals on the family that month. On September 1, it was reported that the paternal uncle broke into the family residence while mother was out and physically assaulted A.P.*fn4 On September 23, it was reported that (a) mother and father had sex in front of the minors, and (b) one of the minors was dirty and disheveled; the Department had determined that mother was letting father stay the night for two or three days at a time, in violation of the juvenile court's order, and his presence made the minors feel unsafe in the home. On September 28, it was reported that the minors might have been left alone for at least three hours.
In October 2010, the Department filed section 387 petitions to remove the minors from mother's custody, alleging that she had maintained a filthy and unsafe home and had violated the juvenile court's order by letting father be there.
According to the Department's applications for protective custody warrants, mother denied allowing father into the home or having sex with him, but A.P. insisted mother had done both. Mother said A.P. sometimes refused to bathe or take her prescribed medication. It appeared that mother herself had not been taking her prescribed medication for depression.
The juvenile court placed the three younger minors in foster care and ordered supervised visitation for mother but no visitation for father.*fn5
The jurisdiction/disposition report, filed in November 2010, recommended terminating the parents' services because after 18 months of services the minors could not safely be returned to the parents. The minors were doing well in their current foster home and had a close and positive relationship with the foster parents. Mother admitted spending time with father recently (though not in the home) and denied that his presence was a threat to the minors. The Department believed the minors would be at risk in the parents' custody due to the parents' noncompliance with court orders, mother's maintenance of an unsafe home, and the parents' "excuses" and failure to take responsibility for their actions.
At the contested jurisdiction/disposition and in-home review hearing in December 2010, the juvenile court sustained the allegations of the section 387 petitions, terminated the parents' services, and set a section 366.26 hearing.
The section 366.26 report, filed in March 2011, requested a 180-day continuance for a home study on the foster parents. The Department believed the three younger minors were generally adoptable, but A.P. was specifically adoptable because she was 12 years old and developmentally delayed.
On March 30, 2011, the juvenile court granted the requested continuance and set adoption as the ultimate goal for the minors.
An addendum report filed in June 2011 stated that mother was pregnant again, allegedly by father.*fn6
In August 2011, the minors were moved to a new foster home.
A subsequent addendum report stated that the new foster parents had decided not to take A.P., but the other minors were doing well in the foster parents' home, which had an approved home study. The report recommended terminating parental rights as to those minors while keeping A.P.'s case open to continue seeking an adoptive home for her.
In November 2011, the Department reported that it had found a prospective adoptive home for A.P. with foster parents who had an approved home study. The Department now recommended termination of parental rights as to A.P. also.
On November 29, 2011, the juvenile court held the section 366.26 hearing. Mother testified as follows:
She had visited the three younger minors two hours per month for the past year, but had missed visits during two or three months. She always brought food for the minors. They played with her during the visits. S.P. would sometimes be out of control at the start, but would always settle down. M.P. would sometimes "refuse" mother at the start. The three younger minors called her by her first name, rather than "mom."
Mother visited A.P. separately. A.P. was happy when mother came and sad when she left.
Mother had recently asked A.P. at least once whether she wanted to be adopted, knowing that this was an inappropriate question. A.P. had said at first that she did not, but then later said that she did, so long as she could still see mother and her siblings.
Mother denied domestic violence between herself and father, but then admitted that he had slapped her and had once tried to strangle her. She also admitted that she had previously lied about this subject.
Mother claimed she had completed parenting education and general counseling and had attended five sessions at WEAVE, but was unsure about the dates.
Mother's counsel argued that the beneficial relationship exception to adoption applied and that the juvenile court should consider legal guardianship as to the three younger minors.
The juvenile court found that the minors were adoptable. It was ambiguous whether mother had shown regular contact and visitation as to the three younger minors because there was a three-month lapse in visitation. But even assuming mother had satisfied this prong of the beneficial relationship test, she had not shown a substantial positive relationship with the minors such that termination of the relationship would cause them detriment. Finally, legal guardianship is not the preferred option for minors who are adoptable.*fn7 Therefore, the court terminated mother's parental rights and ordered adoption as the permanent plan for all the minors.
Mother contends the juvenile court erred by finding that the beneficial parental relationship exception to adoption did not apply. We disagree.
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
To prove that the beneficial parental relationship exception applies, the parent must show that he or she 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).) It is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The parent must show that he or she "occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
"Because 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., supra, 78 Cal.App.4th at p. 1350.)
When the juvenile court rejects an exception to adoption, we review the court's finding deferentially. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [whether standard of review deemed substantial evidence or abuse of discretion, broad deference to lower court required]; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [abuse of discretion]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 [substantial evidence].)
The juvenile court's finding that the alleged exception did not apply was supported by substantial evidence and was well within the court's discretion. Even assuming, as the court did, that mother adequately established regular visitation and contact with all of the minors, she made no showing that she and the minors had a significant positive relationship which would cause them detriment to sever or that her role in their life was in any way parental.
By mother's admission, the three younger minors addressed her by her first name, not as "mom." Two of them appeared less than enthusiastic at the start of her monthly visits. None of them, even by mother's account, showed distress when the visits ended or expressed any wish to return to her care. Mother's relationship to them appeared to be no more than that of a friendly visitor.
Although A.P., according to mother, showed greater attachment to her, A.P. also said she would like to be adopted so long as it did not mean losing contact with mother and the other minors. Thus, even A.P. did not appear to see mother as her true parent at this stage of the proceedings.
Finally, mother's persistent failure to grasp the danger to the minors caused by her relationship with father -- which the recent birth of N.P. showed to be ongoing, despite her repeated claims that it was over -- demonstrated that so far as her relationship to the minors was parental, it was far from beneficial.
For all of these reasons, mother has shown no error or abuse of discretion in the juvenile court's ruling.
The order terminating mother's parental rights is affirmed.
We concur: NICHOLSON , J. BUTZ , J.