In re A.S. CA2/6 ( 2023 )

Filed 5/18/23 In re A.S. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re A.S., a Person Coming 2d Juv. No. B321719
Under the Juvenile Court Law. (Super. Ct. No. 18JD-00386)
(San Luis Obispo County)
SAN LUIS OBISPO COUNTY
DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Respondent,
v.
S.R.,
Defendant and Appellant.
S.R. (Mother) appeals the termination of her parental
rights pursuant to Welfare and Institutions Code1 section 366.26.
We affirm.
All statutory references are to the Welfare and
1
Institutions Code.
FACTS
Mother has three children, Johana, Juan (also known as
David), and Andrea. In February 2019, the San Luis Obispo
County Department of Social Services (the Department) received
a report that Andrea had been sexually molested by two male
friends of Mother. At the time of the report, Andrea was five
years old, and Juan was 12 years old. Their older sister Johana
no longer lived in the home. The Department placed Andrea in
protective custody. Juan remained with Mother.
The juvenile court confirmed the removal of Andrea from
Mother’s custody and ordered Mother to participate in family
reunification services. The court authorized Mother to have
weekly supervised visits with Andrea.
Six-Month, 12-Month, and 18-Month Reviews
Andrea did well in foster care and felt safe in her
placement. At the six-month review, she said she was afraid of
the “bad men” who touched her. She did not tell Mother about
her fear because she thought Mother would hit her.
Mother was willing to participate in reunification services.
But she had difficulty understanding the extent Andrea had been
abused and taking responsibility for the protection of her
children.
After the 12-month review, Andrea expressed concerns
about returning to visits at Mother’s home because she was
afraid a “bad guy” might be there. When Mother learned of the
concerns, she told Andrea not to tell the social workers because
that would end the visits. Andrea continued to express concerns
about long visits to Mother’s home. Andrea was afraid Mother
might hit her if she expressed her concerns.
2
In the supportive environment of family therapy, Andrea
was able to tell Mother about the abuse and trauma she suffered.
Mother assured her that she could speak openly to trusted adults
about her concerns. Andrea began to feel comfortable enough to
spend some nights at Mother’s home. Mother assured Andrea
that she would keep her safe. Mother demonstrated her
commitment by not allowing others in the home while Andrea
was there.
At the 18-month review, the juvenile court returned Andrea
to Mother’s custody, authorized maintenance services and set a
status review hearing.
New Abuse
Shortly before the status review hearing, Andrea and Juan
told Andrea’s foster parents that they were afraid of Mother
because she had been yelling and throwing household objects at
them. Mother hit Juan on his arms, stomach, and back, and she
hit Andrea on the head with a book.
In an interview Andrea and Juan confirmed that the abuse
was continuing. Mother would yell and hit Juan with a closed
fist. This happened a few times a week. The children were
hesitant to disclose the abuse because they were afraid of how
Mother would react and that they would never see each other
again. Andrea said she felt much safer at her foster parents’
home because “they don’t hit people like [her] mom [does].”
When asked how she would feel if she did not return home,
Andrea said she feared she would never see Juan again because
Mother said so.
Mother initially denied the allegations. Later she admitted
that she hit Juan on the arm and face. She said she hit Juan on
the face only because he turned his head while she was hitting
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him on the arm. Mother also admitted that she told both
children that they would not see each other if they were moved to
another place.
The Department subsequently placed both Andrea and
Juan with Andrea’s foster parents.
Section 387 Petition and Hearing
The Department filed a supplemental petition under
section 387 to remove Andrea and Juan from Mother’s custody.
At the contested hearing Mother testified that she threw an
empty water bottle at Juan and hit him on the arm because he
would not do his chores. Mother said that she hit Andrea on the
head with a book by accident. She apologized to the children and
was willing to take a class on how to discipline her children and
how to communicate with them.
The juvenile court found a substantial risk of detriment to
each of the children if they were returned to Mother’s custody.
The court terminated services as to Andrea and set the matter for
a hearing to consider terminating parental rights pursuant to
section 366.26.
Continued Supervised Visitation
After Andrea was returned to her foster parents,
supervised visits with Mother continued. Mother made most
visits but missed a few because of car trouble. Initially the visits
went well, but as time went by Andrea became increasingly
anxious. On a number of occasions, Mother would not greet
Andrea when they met at church.
During one visit Andrea asked Mother for some of her toys
and clothes. Mother replied that since Andrea was no longer
living with her, she would give them away, throw them away, or
burn them. This made Andrea extremely upset.
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After another visit, Andrea and Juan returned to their
foster home upset and angry. Andrea said Mother ignored them
and gave them dirty looks. Andrea said she would not continue
the visits with Mother because they made her feel bad.
Andrea’s foster parents have cared for her since she was
five years old. She is now nine. Andrea wished to be a
permanent member of her foster family. She felt loved and
protected at her foster home. Andrea’s foster parents want to
adopt her.
Consolidated Hearing on Sections 366.26 and 388
Mother filed a petition pursuant to section 388 to set aside
the prior order. The juvenile court consolidated the hearing on
the section 388 petition with the section 366.26 hearing.
Mother testified that she loved Andrea, and that Andrea
showed that she loved Mother when they ran into each other at a
store. According to Mother, Andrea hugged her, began to cry,
and kissed her all over her face, saying that she loved Mother a
lot.
Andrea had a different view of her encounter with Mother
at the store. Andrea was very upset because Mother was all
dressed up, had makeup on, and was with a man whom Andrea
assumed was Mother’s boyfriend.
On cross-examination, Mother admitted that she did not
provide an explanation when her children asked why she was not
calling them. Mother said she did not greet Andrea at church
because she felt sad. Mother also admitted that she sometimes
tried to make her children feel sad by sending them text
messages.
Robyn Yakush, Andrea’s social worker, testified that
continuing reunification services would not be in Andrea’s best
5
interest because it would delay permanent placement. Yakush
opined that Andrea did not have a positive parent-child
relationship with Mother; Mother could not safely parent Andrea;
and it would not be in Andrea’s best interest to be returned to
Mother.
Ruling
The juvenile court found that Mother could not provide
Andrea with the stability and safety she needed and concluded
that Andrea would not benefit from the continuation of a
relationship with Mother. The court denied Mother’s section 388
petition and terminated her parental rights.
DISCUSSION
I. Standard of Review
If the juvenile court finds by clear and convincing evidence
that the child is likely to be adopted, the court must terminate
parental rights (§ 366.26, subd. (c)(1)) unless the court finds a
compelling reason for determining that termination would be
detrimental to the child due to one or more of the circumstances
enumerated in section 366.26, subdivision (c)(1)(B). One of those
circumstances is, “The parents have maintained regular
visitation and contact with the child and the child would benefit
from continuing the relationship.” (Id. at subd. (c)(1)(B)(i).)
The exception applies where a child cannot be in a parent’s
custody, but where severing the child’s relationship with the
parent, even when balanced against the benefits of a new
adoptive home, would be harmful to the child. (In re Caden C.
(2021) 11 Cal.5th 614, 630.) The parent has the burden of
proving: 1) regular visitation; 2) a relationship with the parent,
the continuation of which would benefit the child; and 3)
termination of parental rights would be detrimental to the child.
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(Id. at p. 631.) We review the juvenile court’s determination of
facts under the substantial evidence standard; the court’s
ultimate decision that termination would be harmful is reviewed
for an abuse of discretion. (Id. at p. 630.)
Review under the substantial evidence standard requires
that we look only to the evidence supporting the prevailing party.
(GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856,
872.) We discard evidence unfavorable to the prevailing party as
not having sufficient verity to be accepted by the trier of fact.
(Ibid.) Where the trier of fact or jury has drawn reasonable
inferences from the evidence, we have no power to draw different
inferences, even though different inferences may also be
reasonable. (McIntyre v. Doe & Roe (1954) 125 Cal.App.2d 285,
287.) The trier of fact is not required to believe even
uncontradicted testimony. (Sprague v. Equifax, Inc. (1985) 166
Cal.App.3d 1012, 1028.)
Under the abuse of discretion standard Mother must
demonstrate the juvenile court exercised its discretion in an
arbitrary, capricious, or patently absurd manner. (In re Ray M.
(2016) 6 Cal.App.5th 1038, 1050-1051.)
II. Exception to Adoption2
Mother contends the juvenile court erred in failing to apply
the section 366.26, subdivision (c)(1)(B)(i), benefit from a
continuing relationship, exception.
As to the first element, the juvenile court found that
Mother’s visitation with Andrea was mostly consistent. But
Mother failed to carry her burden of proof on the other two
elements: continuation of the relationship would benefit the
2 On appeal Mother does not challenge the denial of her
section 388 petition.
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child, and termination of the relationship would be detrimental to
the child.
Mother points out that at the beginning of the case Andrea
enjoyed visits with Mother, but was not willing to return to the
home where she had been molested. Mother claims that at the
end of the case Andrea had conflicted feelings. She wanted to
remain in her foster parents’ home but did not want to hurt
Mother’s feelings.
Mother allows herself a very generous view of the evidence.
In fact, the evidence shows that at the end of the case, Andrea did
not have conflicted feelings. She did not want to continue visits
with Mother and instead wanted to be adopted.
Mother argues that Andrea spent the majority of her life
with her. Mother points out that Andrea lived six years with her
before she was detained. In the middle of the case, Andrea was
returned to Mother for six months. Andrea turned nine two
months before the section 366.26 hearing. Thus, Andrea spent
less than three years living with her foster parents.
What Mother’s argument fails to acknowledge is that
during the first six years Andrea was in Mother’s care, Andrea
was sexually molested by two men. During the six months
Andrea was returned to Mother’s custody, Mother physically and
psychologically abused her. Even after Andrea was again
removed from Mother’s custody, Mother continued the
psychological abuse. Much of the abuse occurred while Mother
was being provided with services designed to prevent the abuse.
Obviously Mother could not or would not incorporate the lessons
into her parenting.
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Mother attempts to make much of a single occurrence in
which she claims Andrea hugged her, began to cry, kissed her all
over her face, saying that she loved Mother a lot.
But the juvenile court was not required to believe Mother,
and Andrea had a different view of the encounter. Moreover,
even if the encounter occurred as Mother described, it is
insufficient to overcome years of abuse. The court is not required
to find that there is no benefit to continuing a relationship with
Mother. Instead, Mother must prove that severing the
relationship would be detrimental to the child, even when
balanced against the benefits of a new adoptive home. (In re
Caden C., supra, 11 Cal.5th at p. 630.) Mother has failed to carry
her burden of proof.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Linda D. Hurst, Judge
Superior Court County of San Luis Obispo
______________________________
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rita L. Neal, County Counsel, Daniel Solish, Deputy
County Counsel, for Plaintiff and Respondent.