In re J.M. CA1/5 ( 2021 )

Filed 3/17/21 In re J.M. CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re J.M., et al., Persons Coming
Under the Juvenile Court Law.
___________________________________
ALAMEDA COUNTY SOCIAL A161073
SERVICES AGENCY,
Plaintiff and Respondent,
(Alameda County Super. Ct. Nos.
JD-021287-02, JD-021288-02, JD-
v. 029933-01, JD-029934-01)
K.M.,
Defendant and Appellant
K.M. (“mother”) appeals from a judgment terminating her parental
rights to J.M., S.L., L.L., and A.L. (collectively “the children”). She contends
that the trial court should not have severed her parental rights because the
benefits from her relationship with the children outweigh the stability and
permanence afforded to them by adoption. (See Welf. & Inst. Code, § 366.26,
subd. (c)(1)(B)(i)).1 Because we find no error in the trial court’s judgment, we
affirm.
1 Undesignated statutory references are to the Welfare and Institutions
Code.
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BACKGROUND
A.
In an earlier dependency case, J.M and S.L. were removed from
mother’s care in July 2013 due to substance abuse, domestic violence, and
mental health problems, and were returned to her care in October 2014 after
services were provided.
However, mother relapsed and began using methamphetamine again in
2017. In June 2018, the Alameda County Social Services Agency (“Agency”)
initiated the instant dependency case by filing a petition pursuant to section
300, alleging that the four children have suffered or are at risk of suffering
physical harm due to mother’s inability to provide regular care for the
children as a result of her substance abuse, mental illness, and involvement
in domestic violence. At the time the Agency filed the petition, J.M. was
seven years old, S.L. was six years old, L.L. was three years old, and A.L. was
two years old.
The children were detained when mother was committed to a
psychiatric hospital for 72 hours. Mother was committed after she called the
children’s maternal grandparents and threatened to set her apartment on
fire and kill the children if the grandparents did not provide respite care
immediately.
The petition alleged that mother had neglected the children’s needs due
to her long history of methamphetamine addiction, that she had previously
been in 15 substance abuse treatment programs, and that she had multiple
drug-related arrests. The petition alleged that mother had relapsed and was
spending up to four hours a day locked in her room, several times a week,
leaving the children without food. As a result, seven-year-old J.M. had to
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forage for food and care for their siblings,2 and J.M. and S.L. had to miss
school.
The petition further alleged that mother has a mental health disorder
that impairs her ability to provide care for the children. The petition
referenced mother’s threat to set fire to her apartment and kill the children
and alleged that mother was diagnosed with bipolar disorder and was not
taking appropriate medication.
In addition, the petition alleged that mother has a pattern of
involvement in relationships with physically abusive partners who may have
also abused the children. The petition alleged that mother’s boyfriend had
assaulted mother in front of J.M. and had punched J.M. in the chest and
stomach, and that a previous boyfriend had grabbed J.M. and bruised both of
their arms. Further, the petition alleged that the children had become very
violent with each other for no apparent reason.
Finally, the petition alleged that mother disciplined the children by
hitting them with a hanger.
The court concluded that allowing the children to remain in mother’s
home would be contrary to their welfare and ordered the children detained.
Subsequently, the court found the allegations of the petition to be true and
adjudged the children to be dependents of the court.
B.
The court ordered reunification services for mother, but ultimately
terminated services after 18 months because she only partially complied with
her case plan and thus failed to resolve the concerns leading to the children’s
removal from her care. Although mother completed a substance abuse
Because J.M. uses “they/them” pronouns, this opinion uses such
2
pronouns to refer to J.M.
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treatment program, she tested positive for amphetamines again two months
later and stopped going to her substance abuse aftercare program. Mother
also discontinued therapy for a period. In addition, mother attended
domestic violence treatment classes, but continued her relationship with her
abusive partner and had visible bruising on her face and neck during
supervised visits with the children. Although mother’s visit plan precluded
the presence of her abusive partner, she was repeatedly seen with the
abusive partner when she arrived for visits with the children. As mother
later testified, “I was actively participating in an unhealthy and unsafe
relationship . . . which not only put myself in danger, but also my children.
And then I lied about it and . . . told the [social] worker that I was not with
[the abusive partner] when in fact I was.”
Mother’s fifth child, born after J.M., S.L., L.L., and A.L. were detained,
was removed from her care a few months before the Agency recommended
that the court terminate reunification services in the instant case. The infant
reportedly had special needs, had missed several medical appointments, and
was severely malnourished. In addition, mother’s home was deemed unsafe
due to flea infestation and a pattern of domestic violence with her abusive
partner.
C.
For a child who has been adjudged a dependent of the court and cannot
be returned to a parent, the court must determine a permanent plan at a
section 366.26 hearing. (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-
395 (Anthony B.); see also § 366.26, subds. (a)-(b).) The goal is “to provide
stable permanent homes for these children.” (§ 366.26, subd. (b).) Adoption,
rather than less permanent plans such as long-term foster care or
guardianship, is the preferred outcome if the dependent child is adoptable.
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(§ 366.26, subd. (b)); see also Anthony B., supra, 239 Cal.App.4th at p. 395.)
However, the statute specifies circumstances where the court will forgo
adoption and retain parental rights. (§ 366.26, subd. (c)(1).) At issue here is
section 366.26, subdivision (c)(1)(B)(i), which provides an exception to
adoption when “[t]he court finds a compelling reason for determining that
termination [of parental rights] would be detrimental to the child” because
“[t]he parents have maintained regular visitation and contact with the child
and the child would benefit from continuing the relationship.” The “parent
has the burden of proving, by a preponderance of the evidence,” that the
exception applies. (Anthony B., supra, 239 Cal.App.4th at p. 395.)
The beneficial relationship exception applies where the parent/child
“relationship 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 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.” (In re
Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); see also Anthony B.,
supra, 239 Cal.App.4th at p. 396 [“The question is whether that relationship
remained so significant and compelling in [the child’s] life that the benefit of
preserving it outweighed the stability and benefits of adoption.”].) Thus, “[i]f
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.” (Autumn H., supra, 27 Cal.App.4th at p.
575.)
At the section 366.26 hearing here, the trial court concluded the
beneficial relationship exception was inapplicable, terminated mother’s
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parental rights, and selected adoption as the permanent plan for the
children.
DISCUSSION
Mother contends that the juvenile court erred in concluding that the
beneficial relationship exception is inapplicable. We disagree.
A.
As an initial matter, the parties agree that we should review for
substantial evidence the trial court’s determinations as to whether mother
regularly visited with the children and whether a beneficial parent
relationship existed. (See Anthony B., supra, 239 Cal.App.4th at pp. 395-
396.) Under that standard, “[w]e determine whether there is substantial
evidence to support the trial court’s ruling by reviewing the evidence most
favorably to the prevailing party and indulging in all legitimate and
reasonable inferences to uphold the court’s ruling.” (Ibid.) The parties
likewise agree that we should review for abuse of discretion the trial court’s
determination as to whether the existence of a beneficial relationship
constitutes a compelling reason for concluding that termination of parental
rights would be detrimental to the children. (See ibid.) Under the abuse of
discretion standard, we ask whether the trial court’s decision was reasonable:
“ ‘ “ ‘[w]hen two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.’ ” ’ ” (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review
granted July 24, 2019, S255839, 444 P.3d 665 (Caden C.).) Although our
Supreme Court has granted review in Caden C. to address the appropriate
standard of review, the result in this case would be the same regardless of
whether we review for substantial evidence or abuse of discretion, or apply
the hybrid approach agreed upon by the parties. Under either substantial
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evidence or abuse of discretion review, we must view the record in favor of
the judgment, and findings of fact underlying a discretionary determination
must nonetheless be supported by substantial evidence. (See Caden C.,
supra, 34 Cal.App.5th at pp. 106-107.)
B.
We conclude that the trial court did not err in declining to find that the
benefit from mother’s relationship with the children outweighed the stability
and benefits of adoption.
The court found that mother had established that she had continued to
visit the children regularly and took care to bring them multiple activities
and books she knew the children would enjoy for each supervised visit. The
social worker reported that the children’s visits with mother were “relatively
consistent” and “positive.” The children enjoyed visiting with mother and the
visits “benefitted them emotionally.” J.M.’s court-appointed special advocate
observed that the visits “are good for the child and should continue so that
the children can regain trust and bond with” mother. Mother also called the
children three to four times a week.
The court also recognized that mother has a beneficial relationship
with the children in that “the relationship that she speaks of with the
children sounds to me to be something more specific or significant than a
basic bond between a separated child from a parent.” As the court noted,
mother had “parental conversations” with the children; provided detailed
testimony about each of the children’s special attributes, interests, and
challenges; and provided emotional support to the children in challenging
situations. The court found that “[t]he children clearly are attached to the
mother.” According to the social worker, mother has “maintain[ed] a close
and affectionate relationship” with the children. The children reported that
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mother is “one of the most important people” in their lives. L.L and A.L.
wanted to be returned to mother’s custody, while J.M. and S.L. had
conflicting feelings about being adopted.3
Given the trial court’s findings that mother had visited with the
children and maintained a beneficial relationship with them, the court
explained that “the only question really is whether or not that bond with the
children outweighs the children’s need for permanence through adoption.”
The court concluded that the parental relationship did not outweigh that
need for permanence, explaining: “I know enough about this case to know
that these little ones have struggled with permanence. Wanting to know
where they belong, how they belong. [¶] . . . [¶] [T]heir need . . . for
permanency is the thing that I cannot . . . get past.” The court observed that
3 Although the trial court did not discuss these facts, we note that there
were also negative aspects of the children’s experiences with mother, even
after the children were removed. For example, when mother was released
from the psychiatric hospital early in the dependency, she went to the
maternal grandparents’ home in the middle of the night and pounded on the
window, almost breaking it, and woke the children, causing them to scream
and cry. In another incident during the dependency, during a birthday party
she planned for L.L, mother grabbed a baseball bat studded with nails and
chased her boyfriend’s mother around while screaming and yelling. The
children were “visibly scared,” and S.L. began crying and needed to be
consoled. On another occasion, mother reportedly assaulted the maternal
grandmother in front of the children, chest-bumping her and punching her in
the head several times. When the grandmother called the police, mother
began screaming in front of the children that she was going to kill herself.
The children cried and pleaded with the grandmother to “please [don’t] let
mommy kill herself,” and S.L. had nightmares afterward. This was not the
first time mother had threatened to kill herself in front of the children, as
J.M. told the maternal grandmother that mother said she would kill herself if
the kids were ever taken away from her. In another incident that occurred in
connection with a supervised visit, mother had a disagreement with the
maternal grandmother that “upset the children” and made staff and clients
at the visit location uncomfortable.
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“there’s something nagging about the children’s need to feel like they belong
in one place.”4
We find no error in the court’s weighing of the mother’s relationship
against the children’s need for permanence. Mother emphasizes the strength
of her attachment and the quality of the relationship, but largely fails to
address the significant concerns about permanence in this case.
The social worker described J.M. and S.L.’s placement history as
“disruptive and unstable” because they had been placed in three different
foster homes in 2013 and 2014 before being returned to mother’s home in
their first dependency case. In the instant dependency case, all four children
were initially placed with their maternal grandparents, but later moved to a
foster home. Ultimately, by the time of the section 366.26 hearing, J.M. and
S.L. each had had a total of four placements, and L.L. and A.L., the two
younger children, each had had a total of two placements.
In addition, the children experienced disruptions in caregivers while
they were residing with mother, before the initiation of the current
dependency case. Mother left the children with the maternal grandparents
for weeks at a time. The children also experienced periods of time with no
effective adult caregiver, as mother reportedly locked herself in her bedroom
for hours at a time, several times a week, while using methamphetamines
and left L.L. and A.L., who were toddlers at the time, by themselves on the
front porch of the house with no adult supervision. The children were not
provided with food during such times. On one occasion, when a legal process
4 We reject mother’s contention that the court’s decision rested on an
assumption that the children would continue to have contact with mother
even after it terminated her parental rights. Although the court noted the
possibility of future contact with mother after adoption, “[t]his [wa]s not
really a relevant fact for the Court.”
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server knocked on the door of their home one weekend, the door was opened
by the four children, who were reportedly naked; the children exited the
home and ran around a parking lot naked while the process server attempted
to wake mother. As a result of the lack of adult supervision, J.M. had to
forage for food for his younger siblings, A.L. was food obsessed at the
beginning of the dependency, S.L. missed most of kindergarten, and J.M. was
absent from school for significant periods.
The children also experienced other impacts on their schooling. Mother
unenrolled the children from one school when she separated from an abusive
boyfriend. After enrolling in a different school in Alameda, J.M. – who has
an individualized educational plan due to learning differences – had to
change to yet another school in Antioch, where the current foster family
resides. Likewise, due to changes in primary caregivers and other
disruptions, S.L. attended different schools in Alameda, Fremont, and
Antioch. The younger children, L.L. and A.L., also attended school programs
in other locations prior to moving to programs in Antioch.
Because of the instability they experienced, the children suffered from
separation anxiety and all four required therapy to help them “process[]
[their] history of changes in primary caregivers, ruptured attachments and
past trauma.” At the beginning of the dependency, the children’s behavior
(hitting, choking, tantrums, enuresis, and nightmares) suggested “significant
exposure to traumatizing events.” For example, when J.M. was transitioning
to the current foster home, they wet their pants after a phone call with
mother, were behaving like a three-year-old, tried to choke their foster sibling
and themselves, and overall had a difficult time. However, eventually J.M.
was able to settle into the new foster home’s routines.
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J.M.’s court-appointed special advocate reported that J.M. “is very
concerned about placement changes,” that J.M. was “more settled” in the
current placement, and that “this sense of security should not be disrupted.”
S.L.’s advocate observed that S.L. “has been going through a lot of difficult
transitions.” However, S.L. “increasingly appears to expect that her current
foster placement . . . will become her ‘forever home.’ ”
Although the social worker recognized “the emotional impact . . . of
parental rights being terminated,” given the children’s history, she concluded
that the children “deserve permanency with committed and able parents, who
will meet their needs and provide them with stability, nurturance, and family
connections. If parental rights are not terminated and [the children] are not
adopted, they could experience disruption in their placement, attachments,
and services.” J.M. and S.L.’s court-appointed special advocates agreed that
adoption would be in the children’s best interests,; while L.L. and A.L.’s
advocate’s report did not address adoption, she recommended they remain in
their current placement.
Mother does not address the impacts on the children that have resulted
from the numerous disruptions in their young lives. Neither does she dispute
that security and permanence are particularly important for the children
given their history. Instead, she contends that there is nothing in the record
suggesting that the children would lose their placement with their current
caregivers if parental rights were not terminated and a legal guardianship
ordered instead. However, the social worker reported that the current
caregivers were not interested in a guardianship. In addition, the children’s
maternal grandparents were not an option for a long-term placement, and
their maternal grandmother passed away prior to the section 366.26 hearing.
Moreover, it is mother’s burden to show that permitting the parental
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relationship to continue alongside a more tenuous plan such as legal
guardianship or long-term foster care would be in the children’s best interests
(Anthony B., supra, 239 Cal.App.4th at p. 397), and she may not prevail by
pointing to an absence of information in the record and ignoring evidence
indicating the children would benefit from consistency, security, and
permanency. We thus disagree with mother’s contention that the “only”
possible inference from this record is that the benefits from preserving the
parental relationship outweigh any benefits from the stability and
permanence of adoption.
Mother relies on In re Amber M (2002) 103 Cal.App.4th 681 (Amber
M.), but the circumstances there are not analogous. In Amber M., a
psychologist who conducted a bonding study concluded that severing the
parental relationship “ ‘could be detrimental’ ” to the children and the court-
appointed advocate disagreed with the recommendation of adoption in light of
the “bond and love between” the mother and children. (Id. at pp. 689-690.)
Further, the social worker – the lone expert advocating for adoption –
recommended adoption based on the mother’s “current inability to provide a
home” for the children and on “the suitability of the current placements” –
but neither consideration justified the recommendation. (Id. at p. 690.) In
addition, the trial court failed to articulate its reasoning. (Id. at p. 691.)
None of these factors are applicable here. Instead, the trial court’s reasoning
is consistent with the record, and mother has failed to grapple with it.
We are likewise unpersuaded by mother’s reliance on In re E.T. (2018)
31 Cal.App.5th 68 (E.T.). Although the court there concluded that the
mother’s “substantial and positive attachment” to her children outweighed
the benefits of a permanent home (id. at p. 77), the children in that case
apparently had resided in only one placement home – that of their
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godparents – when removed from their mother’s care. (Id. at pp. 71, 73, 75.)
There was no indication that the children in that case had been subjected to
multiple out-of-home placements, moved from school to school, or suffered
food insecurity. In any event, as E.T. emphasizes, the beneficial relationship
exception must be analyzed on a “ ‘case-by-case basis.’ ” (Id. at p. 76.)
In sum, because it was supported by the record and did not exceed the
bounds of reason, we affirm the trial court’s determination that the benefits
of permanence through adoption outweighed the benefits of mother’s
relationship with the children.
DISPOSITION
The judgment is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A161073
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