In re I.H. CA4/1 ( 2015 )

Filed 4/23/15 In re I.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re I.H. et al., Persons Coming Under the
Juvenile Court Law.
D067086
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ3610A-C)
Plaintiff and Respondent,
v.
MARIA H.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis,
Judge. Affirmed.
Cristina Gabrielidis, 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.
Maria H. appeals from orders terminating parental rights to her daughter I.H. (born
2011) and twin daughters (born 2012, collectively with I.H., the children) under Welfare
and Institutions Code section 366.26. (Undesignated statutory references are to this
code.) Maria contends the evidence was insufficient to support the juvenile court's
finding that the beneficial relationship exception of section 366.26, subdivision
(c)(1)(B)(i) did not apply. We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Maria gave birth to I.H. in 2011 when she was 16 years old. After I.H.'s birth,
Maria suffered three arrests for driving under the influence, possessing and transporting a
controlled substance and carrying a concealed dirk or dagger.
Maria gave birth to the twins the following year. At that time, Maria was using
methamphetamine and had domestic violence incidents with the father. When the twins
were about three months old, the San Diego County Health and Human Services Agency
(the Agency) received a referral that Maria sold her food stamps in order to purchase
methamphetamine, the family home was dirty and lacked necessary essentials such as
food, formula and diapers. Maria admitted she had a problem with methamphetamine
and needed help with her children. The social worker reported that Maria was unable to
provide a stable environment for the children due to a lack of employment, income and
stable housing.
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The Agency filed petitions alleging the children were at substantial risk of harm
because Maria's substance abuse did not allow her to provide regular child care. In
October 2012, the children were removed from Maria's care. Maria had not complied
with on demand drug testing and failed to follow through with her intake appointment for
drug treatment. The juvenile court sustained the petitions. It later declared the children
dependents, removed physical custody from Maria, ordered an out-of-home placement
and that reunification services be provided.
By May 2013, the children were living together in a licensed foster home. Maria
had short, unsupervised visits with the children in a public setting. At the six-month
review hearing in July 2013, the juvenile court concluded that returning the children to
Maria would be detrimental and the services provided to her had been reasonable. It
found Maria had made some progress with the provisions of her case plan and continued
her services for another six months.
At the 12-month permanency hearing in December 2013, the court placed the
children with Maria and provided family maintenance services. In April 2014, the
Agency filed petitions under section 387, seeking a higher level of care because Maria
had relapsed on methamphetamine and marijuana, the children had been exposed to
domestic violence between the maternal grandmother and another adult, the children
were filthy and the home had inadequate food. Additionally, Maria had been arrested in
January 2014 for exhibiting a deadly weapon and April 2014 for possessing a controlled
substance. After several continuances, the court made true findings on the section 387
petitions in October 2014, removed physical custody of the children from Maria and
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ordered them placed in out-of-home care. It scheduled a hearing under section 366.26 to
select and implement a permanent plan.
In November 2014, the court held the contested section 366.26 hearing. It
received into evidence the Agency's reports and heard testimony from Maria. The court
found by clear and convincing evidence the children were likely to be adopted and none
of the statutory exceptions applied. It terminated parental rights and referred the children
to the Agency for adoptive placement. Maria timely appealed.
DISCUSSION
Parental rights may be terminated if there is clear and convincing evidence of
adoptability (§ 366.26, subd. (c)(1)); however, an exception exists where a parent has
"maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship." (Id., subd. (c)(1)(B)(i).) A beneficial relationship is one
that promotes 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 adoptive parents. (In re Autumn H.
(1994) 27 Cal. App. 4th 567, 575.) The parent must show that the parent-child
relationship is such that the child will be greatly harmed by the termination of parental
rights, so that the presumption in favor of adoption is overcome. (In re Brittany C.
(1999) 76 Cal. App. 4th 847, 853-854.)
Implicit in this standard is that "a parental relationship is necessary for the
exception to apply, not merely a friendly or familiar one." (In re Jasmine D. (2000) 78
Cal. App. 4th 1339, 1350.) The existence of this relationship is determined by taking into
consideration "[t]he age of the child, the portion of the child's life spent in the parent's
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custody, the 'positive' or 'negative' effect of interaction between parent and child, and the
child's particular needs . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) There
is a split of authority regarding whether an appellate court reviews a challenge involving
the beneficial relationship exception for substantial evidence, abuse of discretion, or a
combination of the two. (See In re K.P. (2012) 203 Cal. App. 4th 614, 621-622.) Our
conclusion, however, is the same under any of these standards.
The Agency concedes Maria maintained regular visitation with the children.
Accordingly, we focus on the second prong and examine whether the children would
benefit from continuing their relationship with Maria. (§ 366.26, subd. (c)(1)(B)(i).) On
this prong, Maria must overcome the presumption in favor of adoption by showing her
relationship with the children is such that the children will be greatly harmed by the
termination of parental rights. (In re Brittany C., supra, 76 Cal.App.4th at pp. 853-854.)
After reviewing the record we conclude that the juvenile court's findings are supported by
substantial evidence and are not an abuse of discretion.
I.H. was about 18 months old and the twins were about three months old when the
Agency removed them from Maria's care. At that time, Maria was living with the
maternal grandmother who was unaware of Maria's drug use. Although Maria regained
custody of the children for about four months, she relapsed on methamphetamine and the
children were again removed.
At the time of the section 366.26 hearing, the children had not lived with Maria for
about seven months. After multiple placements, the children had been living together
with their prospective adoptive parents since August 2014. The foster parents have
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expressed their commitment to permanently meeting the children's needs, are prepared to
take on the responsibility of providing for them in all aspects of their lives and wish to
adopt the children as a sibling set. The children respond well to the directives of the
foster parents and willingly return to the foster home after visits.
In contrast, the social worker commented in an October 2014 report that Maria had
been discharged from her drug treatment program in September 2014 due to poor
compliance. Despite being offered 21 months of reunification services, the social worker
remained concerned for the safety of the children while in Maria's care noting Maria
required ongoing prompting regarding how to meet the needs the children would express
during visits. The social worker commented on the quality of contact Maria had with the
children, noting the children were "not responsive to [Maria's] directives and [Maria was]
unable to take on the parental role." The social worker concluded that the "parent-child
relationship [was] not significant," did not outweigh the benefits of adoption and it would
not be detrimental for the children if the court terminated Maria's parental rights.
The juvenile court was entitled to credit the assessments and conclusions of the
social workers. (In re Casey D. (1999) 70 Cal. App. 4th 38, 53.) Moreover, "delaying the
selection of a permanent home for a child to see if a parent, who has repeatedly failed to
reunify with the child, might be able to reunify at some future point, does not promote
stability for the child or the child's best interests." (Id. at p. 47.) While the children had a
meaningful relationship with Maria, the record here does not support a conclusion that
this is an extraordinary case where preservation of the parent's rights should prevail over
the Legislature's preference for adoptive placement. (In re Jasmine D., supra, 78
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Cal.App.4th at p. 1350.) Given the lack of evidence that the children would be harmed if
the parent-child relationship is severed, we conclude the juvenile court did not err in
determining that the beneficial parental relationship exception to adoption did not apply.
DISPOSITION
The orders are affirmed.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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