Filed 1/11/16 In re Hadley F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 HADLEY F., a Person Coming Under the C079471
Juvenile Court Law.
YOLO COUNTY DEPARTMENT OF (Super. Ct. No. JV-SQ-13-
EMPLOYMENT AND SOCIAL SERVICES, 0000102)
Plaintiff and Respondent,
v.
BRANDY F. et al.,
Defendants and Appellants.
Brandy F. (mother) and Brian F. (father) appeal from the juvenile court’s order
terminating parental rights. (Welf. & Inst. Code, § 395; undesignated statutory references
are to the Welfare and Institutions Code.) Mother, joined by father, contends the court
1
erred by finding the beneficial parental relationship exception to adoption inapplicable.
We affirm the juvenile court’s order.
FACTS AND PROCEEDINGS
On March 8, 2013, Yolo County Department of Employment and Social Services
(the department) filed a section 300 petition as to three-month-old minor Hadley F.,
alleging that in December 2012 a voluntary family maintenance case was opened for the
parents; that father had an extensive criminal history and that mother abused
methamphetamine and opiates while pregnant with the minor. The petition further
alleged the minor was born prematurely and weighed less than three pounds; that on
March 6, 2013, mother drove the minor to the hospital and was subsequently arrested for
driving under the influence; and that father was arrested for willful cruelty to a different
child. Finally, the petition alleged both parents were incarcerated.
On March 13, 2013, the juvenile court ordered the minor detained.
The jurisdiction report stated that mother’s drug of choice was methamphetamine; she
claimed her last use was in October 2012. She tested positive for alcohol on January 4,
2013.
The juvenile court sustained the allegations of the section 300 petition as amended
on April 3, 2013.
The disposition report recommended out-of-home care for the minor and
reunification services for the parents. The minor was in the care of the maternal
grandmother, Linda S., with whom one of mother’s sisters and the sister’s husband (the
maternal aunt and uncle) also lived.
At the disposition hearing on June 27, 2013, the juvenile court ordered that the
minor remain in the maternal grandmother’s home and that the parents receive
reunification services. The court found the parents’ progress to date was minimal.
2
A status review report filed December 3, 2013, recommended maintaining the
minor’s placement and granting the parents additional reunification services, with a 12-
month permanency review hearing to be set on or before April 3, 2014. The minor was
thriving and had positive relationships with her caregivers. The parents were in danger of
being discharged or suspended from their substance abuse programs, and were about to
be evicted from their residence; father was unemployed, and mother had very recently
begun a retail job.
On February 27, 2014, at the six-month hearing, the juvenile court found that the
parents were complying with their program and testing negative for drugs; however, their
progress remained minimal. The court set the 12-month hearing for April 3, 2014.
The 12-month status review report recommended an additional six months of
services for the parents. They were living in a home where substance abuse occurred, but
hoped to relocate to transitional housing. They were still engaged in services, but had
trouble finding programs they could stay in. Visitation had recently been irregular, partly
due to illness and transportation problems. The minor continued to thrive in the home of
the maternal grandmother, aunt, and uncle, which was a prospective adoptive home.
At the 12-month hearing on April 3, 2014, the juvenile court ordered six more
months of services for the parents and authorized the department to increase visitation.
An interim review report filed June 13, 2014, recommended another six months of
services for the parents and the setting of an 18-month hearing for September 4, 2014.
The parents’ performance had recently declined. They had been discharged from
substance abuse treatment and had not been testing; their visitation had been cancelled
for failure to attend since April 7, 2014, when father tested positive for
methamphetamine; and they had not been communicating with the department.
A status review report filed August 25, 2014, recommended terminating the
parents’ services and setting a section 366.26 hearing. The parents still did not have
stable and appropriate housing. Father was incarcerated again, and had allegedly been
3
convicted of child endangerment as to the minor’s older siblings. Mother had positive or
presumptive positive tests in April and June 2014.
Visitation went well, but had been sporadic all along. Irregular visits could
confuse a young child and prevent her from making a secure connection with the parents.
The parents repeatedly appeared to make progress, then relapsed. Since April
2014, they had done worse. They had not completed any of their services. During the
previous three weeks, mother had found employment and tested negative but this was not
enough to ensure continued progress.
The parents obviously loved the minor and interacted well with her in visits, but
mother still lacked stable housing, and there was no evidence of long-term recovery or of
a stable relationship between the parents. The parents would need another year to
complete their services, but their time to do so had run out.
The caregivers remained willing to provide the minor with a permanent home.
After the contested 18-month hearing in October and November 2014, the juvenile
court terminated the parents’ services and set a section 366.26 hearing for March 19,
2015.
On February 18, 2015, the California Department of Social Services reported that
the minor was adoptable and recommended adoption by the prospective adoptive parents,
the maternal aunt and uncle, with whom she had lived for almost two years. (The
maternal grandmother, with whom the maternal aunt and uncle and the minor still lived,
did not wish to adopt.) The minor was a happy two-year-old, developmentally on target
and enjoying preschool, who appeared to have substantial emotional ties to her caregivers
and sought them out to meet her needs. Although the prospective adoptive parents had
not yet completed an adoption home study, the preliminary assessment indicated that they
were suitable to adopt the minor. The minor enjoyed visits from mother, which occurred
once a month; she had one recent visit with father, and appeared to feel comfortable with
him by the end of the visit. However, the termination of parental rights would not be
4
detrimental to the minor, and removing her from her current caregivers would be
seriously detrimental to her.
The section 366.26 report, filed March 6, 2015, concurred in the adoption
assessment’s recommendation. The minor had lived with the prospective adoptive
parents for most of her life; they had a nurturing and loving relationship with her, had
met all of her needs, and were committed to adoption. They wanted ongoing contact with
mother and visitation by the minor’s siblings following adoption.
The parents’ visitation had been irregular from January through October of 2014.
Mother’s attendance had been more consistent since then, but mother had often gone
alone because father had been in and out of jail over the past year, and on the one
occasion when father had a jail visit with the minor, it was very frightening to her. In
general, the visits went well and raised few concerns. However, the visits amounted to
playing with the minor rather than acting in a parental role, which the parents had not
done since March 2013. It would be detrimental to the minor to return her to mother or
to place her anywhere other than the home where she was now, which was the only home
she had known.
On April 2, 2015, mother filed a section 388 petition, seeking renewed
reunification or family maintenance services. Mother declared that she had been clean
and sober for 12 months, attended AA meetings two to three times per week, and
consistently tested negative; she had stable housing and employment, and a large support
network which included her family; she took Zoloft for depression by prescription
following a mental health assessment and was “medication compliant”; she had
continued her mental health treatment; she had attended all allowed visits with the minor;
whenever she visited, the minor was “overly excited” to see mother and wanted to go
home with her at the end of the visit; she also had regular telephone contact with the
minor three or four times per week; she had a new baby, born in January 2015, who was
5
healthy and happy and had not been the subject of any child welfare proceeding; father
had been sentenced to five years in state prison.
Mother’s current landlady, Sarah Card, wrote a letter attesting to mother’s
continuing sobriety, her bond with the minor and her new baby, and her hard work at
Wal-Mart.
The juvenile court calendared the section 388 petition to be considered at the
section 366.26 hearing.
At the consolidated section 336.26/section 388 hearing, mother testified as
follows:
Mother’s new baby was three months old. Mother had not been contacted about
her by any social worker.
Mother had been clean and sober for just over a year and was not in any substance
abuse treatment program. Her “clean date” was April 5, 2014. She denied that she had
positive tests for methamphetamine and alcohol after that date. According to her such
results had to be erroneous. She went to AA meetings a couple of times a week, avoided
situations that could trigger her addiction, had a large support system, and kept herself
“very, very busy.” Her support system included her roommate Sarah Dixon, her sister-in-
law, her sister, and her best friend.
During the roughly 12 months she had spent in substance abuse treatment
programs, she had learned a lot about coping skills and relapse prevention, and she had
used those skills to stay sober. She had been unable to complete any program because
she moved repeatedly between counties.
Since mother’s services were terminated, she had not participated in parenting
classes, counseling, substance abuse treatment, or domestic violence services.
Mother had asked the social worker to look at mother’s home, but the social
worker had not done so. It was a four-bedroom, two-and-a-half-bathroom house in
Woodland with a large fenced backyard. Besides mother and “Sarah,” the residents
6
included Sarah’s seven-year-old son and mother’s newborn baby. Mother’s roommate
was willing to do a live scan for the department, but the department had never asked her
to do so and had never told mother that this would be needed. Mother admitted that she
had never given the social worker the address of her home, requesting instead that
documents be sent to a mailing address.
Mother held two part-time jobs, one at Wal-Mart for 30 to 32 hours a week and
one at a housecleaning service for five to 20 hours a week. She had worked at Wal-Mart
since August 2014, and at the housecleaning service since March 2015. Her work hours
varied, but could sometimes extend to midnight. Mother’s roommate watched mother’s
infant when mother was working, or else the infant was taken to daycare.
Mother had taken Zoloft by prescription from her family doctor for over a year.
In addition to monthly visits, mother talked to the minor on the phone about once a
night. Sometimes the minor would initiate the call by picking up the phone and asking
someone to make the call for her. The calls would last anywhere from five seconds to 30
minutes, depending on what the minor had going on.
At the ends of visits, when mother would tell the minor that it was time for her to
“go bye bye with momma,” the minor would answer: “No. Go home with mommy.”
Mother felt that it would be in the minor’s best interest to provide mother with
more services because they had a really close bond where “she knows I’m her mom,” and
because mother was in a position to meet all the minor’s needs. She would be just as
happy with mother as with her caregivers, and it would be “the best of both worlds” for
her because she could benefit from her extended family while being with mother. Mother
would “absolutely” maintain the minor’s relationship with the maternal grandmother and
the maternal aunt.
Mother continued:
During May and June of last year, when mother did not make any visits, she was
living in Butte County and had transportation problems getting to Woodland. The
7
maternal grandmother was willing to bring the minor to mother, but the social worker
would not authorize it.
The conditions of mother’s life had not changed significantly from what they were
when the juvenile court terminated her services: she was clean and sober then, lived in
the same residence, and had the same Wal-Mart job. She felt, however, that these
positive facts had not been reported or brought to the court’s attention at that time.
Britt Hirschberg, who had supervised eight of mother’s visits with the minor since
September 2014, testified that the minor was happy to see mother when visits started, but
also happy to see the maternal grandmother when visits ended. The minor did not run up
to mother to greet her. She responded to mother with smiles and hugs, but gave the same
response to the maternal grandmother. Hirschberg had never heard the minor say she
wanted to go home with mother. The minor exhibited no distress on parting from
mother.
Social worker Kathleen Clemons testified that she had had the case since
December 2013. Mother was given 20 or 21 months of services before they were
terminated.
Clemons had not seen mother’s current home. Mother had never asked her to do
so or given her a home address. However, even if Clemons found that the house was
suitable for the minor and mother’s roommates were cleared, it would not change
Clemons’s opinion as to whether it would be in the minor’s best interest to reopen
services for mother.
Clemons supervised a visit on March 27, 2015. It went well. The minor enjoyed
playing with mother. But the minor was also happy to see the maternal grandmother at
the end of the visit. During the visit, Clemons once had to redirect mother to spend time
with the minor instead of interacting with Clemons.
Due to the sporadic, on-and-off nature of mother’s visits, no close relationship
between mother and the minor had been established, in Clemons’s opinion. Telephone
8
contact would not establish or maintain such a relationship; only face-to-face contact
could do so.
When the minor got hurt or upset, she would go to the maternal grandmother or
the maternal aunt for comfort. She had the run of the house and got into everything. She
was “just a part of the family” there. The interaction with mother was “more -- it’s fun
time. It’s play time.” Based on having observed numerous visits, Clemons opined that
the minor did not seek mother out for comfort as much. Play was “pretty much . . . all
they do.”
Clemons was aware of several positive or presumptive positive drug tests after
April 5, 2014. She knew that mother claimed one result was due to taking a medication
which was suspended in alcohol, but Clemons had asked mother to provide the
prescription or the bottle and mother had not done so.
It would not be in the minor’s best interests to restart reunification services for
mother. Since March 2013, mother had not resolved any issues or completed any
treatment. Services had not been helpful, and restoring them would just continue the
same pattern. Furthermore, the minor needed permanency planning, and it would be
devastating to her to be removed to a new home; her adjustment would be very difficult.
She was now in the stage of developing trust, and she trusted her current caregivers so
much that there was no reason to remove her from that setting. The maternal
grandmother had recently moved to a home in the back of the property to give the
maternal aunt and uncle more space, so that the minor could have her own room; but the
grandmother had daily contact with the minor.
Mother was likely to always be involved in the minor’s life; the maternal
grandmother had made that clear. However, Clemons did not know whether the minor
identified her as “mother,” or only as “someone that she knows.” According to the
maternal aunt and uncle, the minor called them “mom and dad.” Clemons had never
heard her call mother “mom.” The maternal aunt greeted the minor as her child, and the
9
minor was extremely comfortable with her and looked to her to meet the minor’s needs.
The minor also treated the maternal grandmother as her mother.
The juvenile court denied mother’s section 388 petition, finding that even if
mother had shown a change of circumstances (which was questionable), it was in the
minor’s best interest to remain with the maternal aunt, uncle, and grandmother.
Turning to section 366.26, the juvenile court received the social worker’s report
into evidence without objection and obtained counsels’ agreement that it could consider
all testimony given in the section 388 hearing for purposes of section 366.26. No counsel
offered any further evidence.
The juvenile court ruled that mother’s visitation, even if regular, did not establish
that the beneficial parental relationship exception to adoption applied. The minor was in
a concurrent home and was adoptable. It was in the minor’s best interest to terminate
parental rights and proceed to adoption.
DISCUSSION
Mother contends the juvenile court erred by finding the beneficial relationship
exception to adoption did not apply. Father joins in mother’s argument and contends that
if this court reverses the termination of mother’s parental rights it must also reverse the
termination of his parental rights.
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a minor
child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citations.] 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 (Ronell A.).)
There are only limited circumstances permitting the court to find a “compelling
reason for determining that termination [of parental rights] would be detrimental to the
10
child . . . .” (§ 366.26, subd. (c)(1)(B).) One of these is where the parent has maintained
regular visitation and contact with the child and the child would benefit from continuing
the relationship, often referred to as the beneficial parental relationship exception.
(§ 366.26, subd. (c)(1)(B)(i).) 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 (Autumn H.); accord, In re C.F. (2011)
193 Cal.App.4th 549, 555 (C.F.).)
“Because a section 366.26 hearing occurs only after the court has repeatedly found
the parent unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s preference for
adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350
(Jasmine D.).)
The party claiming the exception has the burden of establishing the existence of
any circumstances that constitute an exception to termination of parental rights. (C.F.,
supra, 193 Cal.App.4th at p. 553.) The factual predicate of the exception must be
supported by substantial evidence, but the juvenile court exercises its discretion in
weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th
614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
“On review of the sufficiency of the evidence, we presume in favor of the order,
considering the evidence in the light most favorable to the prevailing party, giving the
prevailing party the benefit of every reasonable inference and resolving all conflicts in
11
support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) “ ‘[E]valuating the
factual basis for an exercise of discretion is similar to analyzing the sufficiency of the
evidence for the ruling . . . . Broad deference must be shown to the trial judge.’ ”
(Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Even assuming that mother’s visitation was sufficiently regular and consistent to
satisfy the first prong of the beneficial parental relationship exception, substantial
evidence supported the juvenile court’s finding that mother’s relationship with the minor
was not positive and beneficial enough to outweigh the benefits of adoption.
The minor, who was clearly adoptable, had lived almost her entire life in the home
of her prospective adoptive parents. She was emotionally attached to them, called them
“mom” and “dad,” and looked to them to meet her needs. Their ability to provide her a
safe and loving home was undisputed. These facts, without more, are sufficient to
support the juvenile court’s ruling. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228-
229-231; Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
Furthermore, removing the minor from the only home she had known and placing
her elsewhere would flout her need for permanence and stability, which is paramount at
the selection and implementation stage. Even if the minor were not removed from that
home, providing mother with further services, well beyond the statutory time limit for
services, would be detrimental to the minor by leaving her situation unresolved. (Cf.
Autumn H., supra, 27 Cal.App.4th at p. 575.)
Though mother had apparently stabilized her life to some extent, she had not
completed any program or service in the 20 months allowed, had not engaged in any
services on her own since the termination of those provided by the department, and had
incurred positive drug and alcohol tests, not explained to the social worker’s satisfaction,
after her alleged “clean date.” During visits with the minor, mother acted more as a
playmate than a parent, and the minor did not show any distress when visits ended.
Although mother claimed to be eager to take the minor into mother’s home and to have
12
the social worker inspect it, mother impliedly conceded that she had taken no steps to
give the social worker the physical address of the home or to have her housemates
screened.
Against this strong evidence in support of the juvenile court’s ruling, mother
offered only her uncorroborated opinion, contrary to the testimony of the social worker
and the visitation supervisor, that the minor was more closely bonded to her than to the
minor’s caregivers. The juvenile court impliedly rejected mother’s opinion. On review,
we must defer to the court’s assessment. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Mother asserts that her parental rights should not be terminated because to do so
could prevent contact between her and the minor, which she calls (without citing
authority) “the primary factor that must be considered.” Mother is legally and factually
mistaken. Legally, once reunification has failed, contact between the birth parent and the
minor is not “the primary factor that must be considered.” The primary factor is the
minor’s need for permanence and stability, preferably through placement in an adoptive
home, as here. (Jasmine D., supra, 78 Cal.App.4th at p. 1350; Ronell A., supra,
44 Cal.App.4th at p. 1368.) Factually, it is undisputed that the prospective adoptive
parents and the maternal grandmother want to maintain contact between mother and the
minor, and mother cites no evidence to suggest that that will not happen.
Mother asserts: “Quite frankly, all respondent has done in this case is simply
rearrange deck chairs. Or to have the parties switch hats and labels.” On the contrary,
what the juvenile court has done is to implement the legislative preference for providing
permanence and stability to adoptable minors by placing the minor in a permanent, stable
adoptive home.
Mother asserts that the minor “is going to grow up knowing that appellant is her
mother” and that the prospective adoptive parents are her aunt and uncle, not “mom and
dad.” However, mother cites no authority holding that the beneficial parental relationship
13
exception to adoption applies merely because the prospective adoptive parents are less
closely related to the minor than is the birth parent.
Finally, mother asks rhetorically: “What, then, is the point of simply changing
hats? Cui bono?” Mother’s question is better directed to the Legislature, which has
determined that it is in the best interest of adoptable minors to be adopted as quickly as
possible, rather than waiting indefinitely for birth parents to reform.
Since mother has shown no grounds for reversing the termination of her parental
rights, we also do not reverse the termination of father’s parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
HULL , Acting P. J.
We concur:
DUARTE , J.
HOCH , J.
14