In re N.R. CA3 ( 2023 )

Filed 5/24/23 In re N.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Yolo)
----
In re N.R. et al., Persons Coming Under the Juvenile C096991
Court Law.
YOLO COUNTY HEALTH AND HUMAN (Super. Ct. Nos. JV2021-18-1
SERVICES AGENCY, & JV2021-18-2)
Plaintiff and Respondent,
v.
T.R.,
Defendant and Appellant.
T.R. (mother), mother of the minors N.R. and S.M., appeals from the juvenile
court’s orders terminating parental rights and freeing the minors for adoption. (Welf. &
Inst. Code, §§ 366.26, 395.)1 She contends the juvenile court erred in failing to apply the
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
beneficial parental relationship exception to adoption. Finding no error, we will affirm
the juvenile court’s orders.
FACTUAL AND PROCEDURAL BACKGROUND
The minors have been involved with the Yolo County Health and Human Services
Agency (Agency) since their birth. N.R. was born in November 2012 and, as a result of
mother’s methamphetamine use, was the subject of a voluntary family maintenance case.
The case was closed in July 2013 but, after S.M.’s birth in June 2014, both minors were
removed from mother’s custody, again for reasons related to mother’s methamphetamine
use, as well as the deplorable condition of the home. Mother was provided reunification
services and regained custody in April 2015. After six months of family maintenance
services, the case was closed in October 2015.
The instant dependency proceedings were instituted in February 2021 with the
filing of a section 300 petition after several domestic violence incidents and reports that
mother had resumed methamphetamine use. The minors’ infant sibling had also recently
died while in the care of mother and the sibling’s father, but this was not used as a basis
for jurisdiction.
The minors were initially detained and placed with the maternal grandmother but
later moved to the home of the maternal grandfather, who was the preferred placement of
the minors’ Indian tribe. The juvenile court adjudged the minors dependent children of
the court and ordered them removed from mother’s custody on March 15, 2021. It
further ordered mother be provided with reunification services.2 Supervised visitation
was set at nine hours a week. Mother appealed the jurisdictional and removal orders and
we affirmed. (In re N.R. et al. (Dec. 8, 2021, C093954) [nonpub. opn.].)
2 Services were initially provided for N.R.’s father but the Agency was unable to
locate him, and his services were ordered terminated at the six-month review hearing.
Neither minors’ father is a party to this appeal.
2
At the six-month review hearing in September 2021, the Agency reported mother
was attending grief counseling, but not participating in her other case plan services.
Mother’s visits with the minors were occurring weekly for six hours.3 Three hours were
supervised by the Agency in mother’s home and the other three hours were supervised by
the maternal grandfather. The Agency and maternal grandfather stated the visits “tend to
go well” and there were no concerns. During visits, mother provided food and activities
for her children such as art, movies, and swimming or going to the park. The minors
were reported to enjoy the visits. Both minors were attending grief counseling. The
juvenile court continued mother’s reunification services.
At the time of the 12-month review hearing, mother had still only participated in
grief counseling and had failed to participate in any of her other ordered services. She
had refused to meet with the social worker, complete parenting classes, attend substance
abuse treatment, or participate in random drug testing as directed. She was attending nine
hours of supervised visitation per week and the visits continued to go well. The minors
enjoyed themselves and appeared happy during the visits. Mother continued to bring the
minors food and plan activities. N.R. required further grief counseling and was seeing a
psychiatrist to work on addressing his anger and frustration. S.M. was also continuing
grief counseling. The juvenile court terminated mother’s reunification services and set a
section 366.26 hearing for July 2022.
The contested section 366.26 hearing took place on August 15, 2022. The minors
remained placed with their maternal grandfather. The Agency recommended the
termination of parental rights with a permanent plan of adoption. The tribal
representative attested that the tribe was in agreement with the recommendation to
3 It was subsequently reported that mother was visiting for nine hours each week
during this period: six hours supervised by the Agency and three hours supervised by the
maternal grandfather.
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terminate parental rights, that the maternal grandfather was the tribe’s preferred
placement, that active efforts had been provided, and that continued custody by mother
was likely to result in serious emotional or physical damage to the minors.
N.R. was continuing to see his psychiatrist to address his anger and frustration.
S.M. was also being provided therapeutic support from a psychiatrist. Both minors also
required continued grief counseling. The maternal grandfather and step-grandmother
were willing, and expressed a strong desire, to provide permanency in the form of
adoption. The minors had been placed in their home for 16 months, but the grandfather
has had a relationship and regular contact with the minors since their births. Both minors
had been developing well in their care and the interactions with their caregivers were
described as “pleasant and conducive to their mental and emotional well-being.” The
caregivers were attuned to, and were meeting, the minors’ needs and both minors had
expressed that they feel safe with their maternal grandfather. The home was providing
the minors with a stable and nurturing environment. The adoption home study was
completed, and the maternal grandfather and his home were found suitable for adopting
the minors.
N.R. had expressed some frustration about not reunifying with mother but had
accepted his grandfather as a caregiver and had positive things to say about their
relationship. N.R. said he agreed with the adoption but needed more time to prepare and
think about it. He appeared relieved to know that adoption finalization was an event that
would happen in the future so he would have more time to prepare. He was also
continuing to participate in therapy where he would be able to process his current
circumstances regarding adoption. N.R. said he felt safe with the maternal grandfather
with whom he appeared to have a positive and trusting relationship and substantial
emotional ties. The adoption specialist and adoption supervisor opined it would not be
detrimental to N.R. to terminate paternal rights but it would be seriously detrimental to
the minor’s well-being to remove him from maternal grandfather’s care.
4
S.M. (age eight) also accepted his maternal grandfather as a caregiver, felt safe
with him, enjoyed participating in activities with him, and had positive things to say
about their relationship. He would, however, like to return to mother’s care or be in the
care of his maternal grandmother. His reasons for preferring not to live with the maternal
grandfather were that he would like to spend more time with the maternal grandmother,
and that he has to attend Catholic school, which requires he wear a uniform and comply
with a lot of rules and praying. S.M. did not, however, have any serious concerns or
worries about remaining with the maternal grandfather for purposes of adoption. He, too,
was continuing to participate in therapy and was processing his current circumstances and
future adoption. Like his half-brother, S.M. was reported to have a positive and trusting
relationship with, and substantial emotional ties to, his maternal grandfather. S.M.’s
relationship with the maternal grandfather was assessed as meeting his needs. The
adoption specialist and adoption supervisor opined it would not be detrimental to S.M. to
terminate paternal rights but it would be seriously detrimental to the minor’s well-being
to remove him from maternal grandfather’s care.
Mother had continued to attend nine hours of supervised visitation per week. The
visits were reported to go well, with the minors enjoying the visits. Some of mother’s
visitation time was spent attending the minors’ extracurricular sports activities. The
maternal grandfather stated the minors love and miss mother and reported that there were,
at times, some setbacks after visits with her where the minors’ behavior would be harder
to manage. They did not, however, cry or appear upset when the visits ended. The
maternal grandfather was willing to facilitate post-adoptive contact with mother and
intended to keep it around the same frequency, but with more flexibility to accommodate
the minors’ activities. The minors would also grow up together in the maternal
grandfather’s home and would be provided the opportunity to remain in contact with their
extended family and tribe.
5
The maternal grandfather also testified that he had to do a lot to stabilize the
minors when they were placed with him, both academically and behaviorally. In his
opinion, the minors were concerned with whether they would have a chance to live with
mother if she were to start doing what she needs to do. They have been blaming
themselves for why they cannot live with mother. The adoption specialist tried to assure
them they were not to blame. Maternal grandfather believed the minors were fine with
proceeding with the adoption if they think they can live with mother again someday if she
does what she needs to do.4 Their tribe has a procedure for this to occur, but it is
conditioned on the maternal grandfather’s agreement and the mother’s strict compliance
with the juvenile court’s earlier reunification plan services. In contrast, he believed the
unrestricted access to petition for custody that a regular legal guardianship (rather than
adoption) would permit, would be hard on the minors. Regardless, he could handle the
minors’ reactions to not being returned to mother’s care as he was already doing that.
Mother’s counsel argued the mother’s parental rights could not be terminated
based on an unenforceable promise of future contact and that there was no guarantee the
maternal grandfather would continue to permit her to visit or would permit her to petition
the tribe if she changed her behavior. Counsel argued that termination of parental rights
would be detrimental to the minors, even though the mother could not provide a home for
them. In the end, the attorney requested the juvenile court find the beneficial parental
relationship exception to adoption applied and order a plan of legal guardianship with the
maternal grandfather.
4 This was described by counsel as a procedure within the tribe that permits, under
certain circumstances, the biological parent to regain legal guardianship. This is also
consistent with Probate Code sections 1500.1, 1510, 1514, which provides for the
nomination of a suitable guardian in accordance with the minors’ best interests.
6
Minors’ counsel argued there had been no evidence of a positive emotional
attachment; happy visits did not equate to a substantial positive relationship. Counsel
argued that the minors’ wishing they could go back to mother did not mean there was a
positive emotional attachment and that such hope, at this point, was detrimental to them.
The maternal grandfather had provided the stability and mental health support the minors
needed and would be able to support the minors as they dealt with the loss of their legal
relationship with mother. Even assuming the minors would not have continued future
contact with mother, the benefits of adoption outweighed any possible detriment resulting
from the termination of parental rights.
The juvenile court began by noting that the focus of the hearing was not the
success or failure of mother’s efforts, but the minors’ need for stability. It found mother
had visited regularly but that there was a substantial argument that mother’s relationship
with the minors was not a parental relationship, but more of a friendship or visitor
relationship. Although the minors call her their mother and “love her dearly,” she has
never provided them with any of the things a parent normally would provide. She did not
meet their emotional needs or their educational needs. She loves that she has children
and likes to spend time with them, but she does not take any responsibility for them nor
care enough to try to address her problems to regain custody. The juvenile court found
she did not have a parental bond within the meaning of the exception. The court further
found that, not only would maintaining their relationship with mother not benefit the
minors to such an extent as to outweigh the benefits of adoption and greatly harm the
minors, it found “exactly the opposite” to be the case — that “termination of parental
rights would greatly benefit [the minors]” by giving them the stability they have been
missing their entire lives.
The juvenile court then noted that mother was lucky that her father was willing to
do what he was saying he was willing to do because she had “done nothing to deserve
what he’s offering her. She cannot provide for these children. She does not have that
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parental bond with them that would make an exception whatsoever, and yet she has a
father who is willing to continue to let her visit, to even make available the possibility of
the children returning to her if she ever can put herself in a position where she can
actually be a mother.” Finding clear and convincing evidence the minors are adoptable
and finding the beneficial parental relationship exception not to apply and taking the
minors’ wishes into consideration, the court terminated parental rights. It ordered any
future visitation to be completely at the discretion of the caregiver.
On August 26, 2022, the juvenile court granted mother’s motion to reopen
evidence, as mother’s counsel had forgotten to submit visitation logs at the contested
hearing. The visitation logs were admitted into evidence without objection, and the
juvenile court set the matter for ruling on September 7, 2022. The visitation logs
submitted by mother spanned from the end of January 2022 to the end of May 2022. No
visitation logs were introduced regarding visits from June, July, or August. All the visits
appeared fairly consistent: The minors were happy to see mother and appeared
comfortable with her. Mother brought food and provided appropriate activities. She was
verbally and physically affectionate toward the minors but there were only a few
references to the minors reciprocating her affection. It was also regularly observed that
the minors would fight with or hit each other during the visits and refuse to listen to
mother, and that N.R., in particular, often struggled with his behavior toward mother,
being rude or yelling. There were no reports that the minors struggled with separating at
the end of visits or that they expressed the desire not to leave mother or that they had
missed her.
On September 7, 2022, the juvenile court confirmed its prior ruling terminating
parental rights. It reviewed the visitation logs and, while the logs confirmed that she
visited regularly and she was a good friend, it concluded they did not show a parental
bond.
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Mother timely appealed; the case was fully briefed and assigned to this panel in
April 2023. The parties did not request oral argument.
DISCUSSION
Mother contends the juvenile court erred by failing to find the beneficial parental
relationship exception to adoption applied. We find no error.
At the section 366.26 selection and implementation hearing, 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).) One such circumstance is the
so-called beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i)
[beneficial parental relationship exception]; In re Caden C. (2021) 11 Cal.5th 614, 629
(Caden C.).)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to the termination of parental rights.
(Caden C., supra, 11 Cal.5th at pp. 636-637; In re Melvin A. (2000) 82 Cal.App.4th 1243,
1252; Cal. Rules of Court, rule 5.725(d)(2).) The parent “must show regular visitation
and contact with the child, taking into account the extent of visitation permitted.
Moreover, the parent must show that the child has a substantial, positive, emotional
attachment to the parent — the kind of attachment implying that the child would benefit
from continuing the relationship. And the parent must show that terminating that
attachment would be detrimental to the child even when balanced against the
countervailing benefit of a new, adoptive home.” (Caden C., at p. 636.)
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The beneficial parental relationship exception to adoption “must be examined on a
case-by-case basis, taking into account the many variables which affect a parent/child
bond. The age of the child, the portion of the child’s life spent in the parent’s custody,
the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s
particular needs are some of the variables which logically affect a parent/child bond.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) The factual predicates of the
exception must be supported by substantial evidence, but the juvenile court exercises its
discretion in weighing that evidence and determining detriment. (Caden C., supra,
11 Cal.5th at pp. 639-640.) We do not substitute our judgment for that of the juvenile
court as to what is in the child’s best interests. (Id. at pp. 640-641.)
Here, the fact that mother maintained consistent visitation with the minors was
undisputed. However, it is not enough for a parent to show frequent and loving contact
during pleasant visits. (In re C.F. (2011) 193 Cal.App.4th 549, 555.) As for the second
and third elements, the juvenile court concluded mother did not meet her burden to
establish the minors have a significant, positive, emotional attachment with her or that the
harm the minors would experience if the parental relationship were terminated outweighs
the benefits that would be provided by an adoptive home. (Caden C., supra, 11 Cal.5th
at pp. 633-634.)
To support her position that these young minors have a substantial, positive
emotional attachment with her, mother argues that she raised them for the initial eight
(N.R.) and six (S.M.) years of their lives. While the minors were in her care for most of
that time, the time was not one of stability or positivity. They were removed from her
care for a year shortly after their birth, and their time with mother included exposure to
substance abuse and domestic violence and ended with the death of their infant sibling.
The mere fact that they spent the majority of their childhood in her custody does not,
under the circumstances here, establish, ipso facto, that they have a substantial, positive
emotional attachment to her. In this case, it resulted in the need for the maternal
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grandfather to expend significant efforts to stabilize the minors, both academically and
behaviorally, which he, not mother, had been successfully doing for the past year and a
half.
Nor is the fact that the minors enjoyed visits and were happy to see mother
sufficient to establish that the minors have a substantial, positive emotional attachment to
her. For the exception to apply, the emotional attachment between the child and parent
must be that of parent and child rather than that of a friendly visitor or friendly nonparent
relative, such as a grandparent or aunt. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
“[A]n emotional attachment is one where the child views the parent as more than a mere
friend or playmate.” (In re B.D. (2021) 66 Cal.App.5th 1218, 1230.) While mother
provided limited care and entertainment during her visits, there was no evidence that
separating from mother at the end of visits caused any emotional trauma. The minors
missed mother but did not ask for more frequent, longer, or overnight visits. The juvenile
court found the minors considered mother more of a friend they enjoyed visiting than a
parent to whom they were attached.
Finally, neither the fact that the minors love mother nor that they hoped to be
returned to her custody someday are sufficient evidence of their substantial, positive
emotional attachment to mother. While the minors do love mother, they also blame
themselves for her inability to regain custody. Their continued relationship with mother
has resulted in their continued but unfulfilled hope that she will do what it takes to regain
custody, and in N.R.’s frustration and anger that she continually does not. This is not the
type of substantial positive attachment the exception contemplates. “A ‘significant
attachment from child to parent results from the adult’s attention to the child’s needs for
physical care, nourishment, comfort, affection and stimulation.’ [Citation.] A positive
attachment between parent and child is necessarily one that is not detrimental to the child
but is nurturing and provides the child with a sense of security and stability.” (In re B.D.,
supra, 66 Cal.App.5th at p. 1230, citing In re Autumn H., supra, 27 Cal.App.4th at
11
p. 575, italics added.) The minors’ relationship with mother does not provide them with a
sense of security and stability; it provides them with insecurity and instability.
A parent-child relationship sometimes “involves tangled benefits and burdens”
and “[i]n those cases, the court faces the complex task of disentangling the consequences
of removing those burdens along with the benefits of the relationship.” (Caden C., supra,
11 Cal.5th at p. 634.) The “positive” or “negative” effect of interaction between parent
and child is one of the factors to consider in assessing the relationship. (Caden C., at
p. 632, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 576.) Here, although the
visits were reported to go well and no safety concerns were noted by the monitors, the
minors were also reported to have some problematic behaviors following visits with
mother, and the visits were often peppered with the minors fighting, not listening to
mother, or even being rude to or yelling at mother. Moreover, the juvenile court found
the continuing relationship with mother, and the minors’ unfulfilled desire that mother’s
life circumstances and behavior would improve was detrimental to them and resulting in
instability and insecurity. Thus, while the evidence established a bond between the
minors and mother, the nature of the bond was not entirely positive.
However, even assuming mother established her relationship with the minors was
sufficiently significant and positive and that continued contact would benefit the minors,
she failed to meet her burden to establish a detriment in terminating parental rights or that
the detriment of termination outweighed the benefits of adoption. Mother had the burden
of proof to affirmatively demonstrate that termination of the relationship would be
detrimental to the minors. Yet, mother identified little evidence, if any, that termination
of the parental relationship would be detrimental to the minors at all, let alone when
balanced against the countervailing benefit of a new, adoptive home. (Compare
Caden C., supra, 11 Cal.5th at pp. 627-628, 636 [relying on a bonding study concluding
severing the parental relationship would be detrimental to the child].)
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Mother did not testify at the hearing. While there was testimony that the minors
love and miss mother, there was no testimony, nor any expert opinion, that the minors
would suffer any detriment from the termination of parental rights. Indeed, the only
evidence presented on the subject of detriment were the opinions provided by the
adoption specialist and adoption supervisor who opined that terminating parental rights
would not be detrimental to the minors and that adoption was in their best interests. The
Agency, minors’ tribe, the tribal expert, and minors’ counsel were all in agreement that
adoption was in the minors’ best interests.
While mother is not required to procure a positive bonding study or present expert
testimony, she nonetheless must meet her burden of proof. In light of the uncontradicted
opinions here that termination of parental rights would not be detrimental, the positive
interactions during visits, the minors’ hope the mother’s circumstances and behavior
would improve, or even minors missing mother between visits, are insufficient to
establish that losing the parent/child relationship would cause the minors to be greatly
harmed.
Moreover, even assuming some detriment to the minors from termination of
parental rights had been established, the juvenile court was required to weigh the harm to
the minors of terminating their relationship with mother against the benefit to these
minors of a permanent and stable home. (Caden C., supra, 11 Cal.5th at p. 631.) Only if
severing the parent-child relationship would deprive the child of a substantial, positive
emotional attachment such that termination would be harmful to the child, even
considering the benefits of a new adoptive home, should the court not terminate parental
rights. (Id. at pp. 631-632.) “[T]he ultimate decision — whether termination of parental
rights would be detrimental to the child due to the child’s relationship with his parent —
is discretionary and properly reviewed for abuse of discretion.” (Id. at p. 640.) We will
not disturb the juvenile court’s decision unless it “exceed[s] the limits of legal discretion
13
by making an arbitrary, capricious, or patently absurd determination.” (In re Stephanie M.
(1994) 7 Cal.4th 295, 318.) We cannot find an abuse of discretion here.
The minors deserve the opportunity to be raised in a permanent, stable home
environment under the care and custody of a stable nurturing parent whom they can count
on to continue to provide them with the support they need. They have been removed
from mother’s care twice and are doing well in maternal grandfather’s stable and
supportive care. The instability of hoping mother will engage and regain custody is
problematic for these minors, magnifying their instability. There was little to no
evidence of great harm or detriment to the minors in terminating parental rights. The
juvenile court did not err in declining to apply the beneficial parental relationship
exception to adoption.
DISPOSITION
The orders of the juvenile court (terminating parental rights) are affirmed.
\s\
McADAM, J.*
We concur:
\s\
MAURO, Acting P. J.
\s\
DUARTE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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