In re Q.S. CA3 ( 2016 )

Filed 4/12/16 In re Q.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re Q.S. et al., Persons Coming Under the Juvenile
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF C080485
HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent, (Super. Ct. Nos. JD234681,
JD234682 )
v.
S.T. et al.,
Defendants and Appellants.
S.T., mother, and D.S., father of Q.S., appeal from orders of the juvenile court
terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 3951.) M. Johnson,
father of M.J., is deceased. Father joins mother’s argument that the court erred in
1 Undesignated statutory references are to the Welfare and Institutions Code.
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terminating parental rights because mother established that the beneficial parental
relationship exception applied. We conclude mother has not met her burden of
establishing a beneficial parental relationship with either minor. We affirm the juvenile
court’s orders.
FACTS
In May 2014, the Sacramento County Department of Health and Human Services
(Department) removed two-year-old Q.S. and newborn M.J. from mother’s custody due
to M.J. and mother testing positive for methamphetamine at the minor’s birth. Mother
previously failed to reunify with two older half siblings of the minors. The older half
siblings were adopted in 2011. Following the detention, mother tested positive for
alcohol and was told not to continue to provide breast milk for M.J.
The minors were placed together in a foster home. Q.S. had issues with speech
and toilet training. Mother had twice-weekly supervised visits. Q.S. tended to be quiet
after visits although she had screamed for an hour after the first visit. By October 2014,
visits were going well. Mother interacted with the minors and visits were positive and
appropriate. The court sustained the petitions and ordered services for mother.
The six-month review report in April 2015 stated Q.S. was continuing to have
toilet training issues and language problems. M.J. was doing well with no apparent
delays. Mother attended all supervised visits. In December 2014, unsupervised visits
began. After the first unsupervised visit, there was some concern about mother feeding
the baby the required formula. After another unsupervised visit, there was a concern
mother was not properly buckling the baby into the car seat. This was discussed with
mother and no further concerns were noted. In February 2015, mother tested positive for
methamphetamine, amphetamine and marijuana and visits returned to a supervised
format. The report recommended termination of services due to mother’s lack of
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progress. Because the minors were not placed in an adoptive home, the Department
made a referral for home finding. At the review hearing, the court adopted the
Department’s recommendation.
A memo in August 2015 indicated mother had a positive test for
methamphetamines in April 2015 and continued to struggle with sobriety and substance
abuse treatment. The Department was still in the process of home finding for a
foster/adoptive placement.
The assessment for the section 366.26 hearing stated mother attended weekly
supervised visitation and was positive and appropriate in visits. After visits, the minors
transitioned easily back to the foster home with no behavioral problems. Mother also
called once or twice a week, but conversations were brief because Q.S. had no interest in
talking to her and M.J. was nonverbal. The Department concluded that, while mother had
visited regularly and the minors appeared to enjoy them, visits were primarily friendly
and playful occurrences. There were no significant health or developmental concerns
about either minor. The Department had located one viable family as a prospective
adoptive placement. An addendum stated the couple was interested and a meeting with
the minors was planned.
An addendum in October 2015 stated the minors were placed in a potential
adoptive placement in September 2015 after several preplacement visits including
overnights. The minors appeared happy and were doing well. The foster agency
confirmed that, despite mother’s complaints and accusations, the minors appeared well
cared for. The social worker observed a visit and found the minors were well dressed,
smiling, playful, and engaged before mother arrived. When mother arrived, Q.S. stopped
playing and smiling and shut down. Mother did not smile or hug the minors but began
gruffly questioning them. Mother asked Q.S. if she was happy where she was living and
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Q.S. nodded yes. Q.S. shook her head no when mother asked if she wanted to live with
her. Mother ignored M.J. for most of the visit. Neither minor was distressed at the end
of the visit. Q.S. told the foster agency social worker and the foster father she did not
want them to call mother for her and did not want to talk to her. The foster father had
noticed Q.S. to be withdrawn after a visit and it took a day for her to recover. Visitation
notes showed the minors had no reaction to the visits. Q.S. played independently and did
not engage with mother although mother was overall appropriate in visits. The
Department assessed, based on interaction during visits, there was not a significant
parent-child bond.
At the section 366.26 contested hearing, no evidence was offered other than the
evidence contained in the Department’s reports. Opening arguments were waived and
counsel proceeded directly to closing arguments. After hearing argument, the juvenile
court found the minors were likely to be adopted. The court stated: “It is clear that the
parents love their children, that the mother loves her children, that they are important
people in her life, but she has been nothing but a visiting parent for a long time for these
children; and visits, even positive, are not like being a mom. When push came to shove
and she had to make hard choices in her life in order to prove to herself, to the Court, and
to these children that they are the most important things in her life and that she was
willing to do whatever it took to be their mother, she was unable to do that.” Finding no
exception applied, the court adopted the Department’s recommended findings and orders,
terminating parental rights and freeing the minors for adoption.
DISCUSSION
Mother contends she established the beneficial parental relationship exception to
the preference for adoption and the juvenile court should not have terminated her parental
rights. Q.S.’s father, D.S., joins mother’s argument.
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At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal. App. 4th 1352, 1368.) There are only limited circumstances that
permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The
party claiming the exception has the burden of establishing the existence of any
circumstances that constitute an exception to termination of parental rights. (In re
Cristella C. (1992) 6 Cal. App. 4th 1363, 1373; In re Melvin A. (2000) 82 Cal. App. 4th
1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.)
Termination of parental rights may be detrimental to the minor when: “The
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).) However, the
benefit to the child must 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. In other words, the court balances 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. If severing the natural parent/child relationship
would deprive the child of a substantial positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal. App. 4th 567, 575; In
re C.F. (2011) 193 Cal. App. 4th 549, 555.) Even frequent and loving contact is not
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sufficient to establish this benefit absent a significant positive emotional attachment
between parent and child. (In re I.R. (2014) 226 Cal. App. 4th 201, 213.)
The evidence regarding mother’s visitation with the children after they were
removed supports the juvenile court’s conclusion mother’s role was that of a friendly
visitor and not an important parental figure. Notably, mother did not present any
evidence, documentary or otherwise, at the section 366.26 contested hearing to show she
had a beneficial parental relationship with either child. All the evidence comes from the
Department’s reports.
As to M.J., who had never lived with mother and had seen her only at visits, there
was no significant parent-child relationship. During visits, M.J. wandered around with
mother picking her up a few times and holding her on her lap. At the end of visits,
mother would hug M.J. and each said goodbye. M.J. did not show any distress at the end
of visits and made an easy transition back to her foster placement.
Q.S. had lived a significant portion of her life with mother, but, during that time
was subjected to neglect due to mother’s substance abuse. Mother was appropriate in
visits and for a brief time earned the privilege of unsupervised visitation. However, there
is no evidence Q.S. looked forward to visits. Q.S. played independently during visits and
did not interact with mother at visits, despite mother’s appropriate behavior and attempts
to engage the minor. After visits, the foster parents reported Q.S. was withdrawn for
about 24 hours before returning to being happy and playful. Later, after unsupervised
visits were suspended, Q.S did not want to talk to mother on the telephone and did not
want to live with her.
The juvenile court correctly determined mother did not meet her burden of
showing she had a beneficial parental relationship with either minor that would outweigh
the benefits of permanence and stability adoption could provide.
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DISPOSITION
The orders of the juvenile court are affirmed.
/s/
HOCH, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
MURRAY, J.
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