In re N.T. CA4/1

Filed 3/29/16 In re N.T. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re N.T., et al., Persons Coming Under
the Juvenile Court Law.
D068805
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14744A-B)
Plaintiff and Respondent,

v.

NINA S. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of San Diego County, Blaine K.

Bowman, Judge. Affirmed.

Lelah S. Fisher, under appointment by the Court of Appeal, for Appellant Nina S.

Linda Rehm, under appointment by the Court of Appeal, for Appellant Brian T.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and C. Ellen Pilsecker, Deputy County Counsel, for Plaintiff and Respondent.
 Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and

Ray Diaz for Minors.

Following a two and one-half year dependency case during which N.T. and E.T.

were removed from parental custody three times, the juvenile court terminated the

parental rights of Nina S. (mother) and Brian T. (father) under Welfare and Institutions

Code section 366.261 and selected adoption as the children's permanent plan. The

mother contends the court erred in finding there was not a beneficial parent-child

relationship between her and her children that precluded termination of her parental

rights. (See § 366.26, subd. (c)(1)(B)(i).) The father joined in the mother's briefing and

contends only that if we reverse the termination of her parental rights, we must also

reverse the termination of his.2 (Cal. Rules of Court, rule 5.725(a)(2).) We find no error

and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The First Removal (November 2012)

On November 16, 2012, three-year-old N.T. and her two-year-old sister E.T. were

detained in foster care after police found the family's mobile home unsafe and unlivable.

The parents admitted the trailer was not safe for children.

1 All further statutory references are to the Welfare and Institutions Code.

2 Because the father does not assert independent grounds of error, we discuss him
only as relevant to the mother's claims of error.

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 The mother smelled of alcohol, her speech was slurred, and her thoughts were

disorganized. N.T. informed a social worker that the mother buys vodka, and the father

drinks beer and vodka. N.T. also reported that the mother kicks the father's legs, and the

father "is mean" and hits the mother in the face. The children were detained and placed

in foster care, and the parents were arrested for being under the influence and for child

endangerment. The parents denied any domestic violence. The mother also denied using

drugs, while the father admitted to weekly marijuana use outside the children's presence.3

The San Diego County Health and Human Services Agency (Agency) filed

petitions asserting claims (as relevant here) under section 300, subdivision (b) arising

from the family's living conditions and the father's drug use. The court ordered that the

children be detained out of parental custody and that the parents receive reunification

services.

The Second Removal (February 2013)

The parents eventually found suitable housing. On January 3, 2013, the juvenile

court gave the Agency discretion to detain the children with the mother on the condition

that the father move out of the family home. The father moved out, and the children were

detained with the mother. The Agency recommended the juvenile court dismiss the

petitions without prejudice.

3 The father later tested positive for amphetamines, methamphetamines, and
cannabinoids. The mother tested negative for drugs.

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 About two weeks later, the Agency changed its recommendation. The mother had

just been arrested for public intoxication while she and the children were leaving a store

in Santa Barbara County. The mother intended to drive with the children to a nearby

hotel where the father was waiting for them. In the mother's car, deputies found an open

bottle of vodka with a straw in it, a receipt indicating the vodka had been purchased that

day, and a marijuana pipe.

The children were taken into protective custody and transported back to San

Diego. E.T. cried for her mother for more than two hours during the drive; N.T. cried for

part of that time. The children were returned to their previous foster home.

The Agency filed amended petitions adding allegations under section 300,

subdivision (b) arising from the mother's arrest and intoxication. The juvenile court

ordered the children detained out of parental custody pending a contested jurisdiction and

disposition hearing.

At the jurisdiction and disposition hearing, the court dismissed the count and

allegations arising from the unsafe living conditions and found true the counts arising

from the parents' substance abuse.

Six-Month Review (November 2013)

In its six-month review status report, the Agency reported the mother had only

"partially participated in reunification services"—she had not demonstrated progress in

therapy, provided updated progress reports from her drug treatment programs, or

submitted to all Agency-requested drug tests. She was visiting the children twice per

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week, supervised by the foster mother. The Agency characterized the interactions

between the mother and the children as "positive."

Twelve-Month Review (January 2014)

The Agency's twelve-month status review report informed the juvenile court of the

mother's continued partial participation in services. She was attending outpatient

substance abuse treatment, but her participation was lacking.

A self-proclaimed "family friend" who had stayed with the parents for 30 days

reported to the Agency that the mother was a " 'closet drinker' " with "a serious drinking

problem." He also reported the parents engaged in domestic violence. The mother told

the Agency not to believe the friend because he has mental health issues and is an "expert

con-artist."

The mother continued having supervised visits with the children, during which she

behaved appropriately and lovingly. In April, the Agency reported the mother had

progressed to one two- to four-hour unsupervised visit.

Settlement/Pretrial Conference (May 2014)

In May 2014, the Agency reported that the mother was continuing in her substance

abuse treatment, but she denied having a problem. She was testing negative, but did not

submit to three Agency-requested tests.

The mother had progressed to eight-hour unsupervised visits. She appeared to be

compliant about the father not visiting during her unsupervised visits. According to the

mother, the father had "disappeared." However, the foster mother advised the Agency

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that she sometimes heard the father in the background during phone calls and saw the

parents together at the church they all attended.

N.T. told the Agency her visits with the mother are " '[g]ood.' " However, the

foster mother reported that the children appeared to be detaching from the parents

because they no longer sat together during church and the children were having bathroom

accidents after visits. The foster mother also reported that the mother was not taking

advantage of the full eight-hour visitation opportunity—the mother usually called after

just two or three hours to ask that the foster mother pick up the children. The Agency

advised the mother she needed to complete regular eight-hour visits to transition the

children back into her care.

The Third Removal (August 2014)

In July 2014, the Agency recommended the children be placed with the mother.

She had successfully completed her outpatient substance abuse treatment program. She

had leased a suitable residence, and the landlord confirmed no one lived with her. And

she had consistently visited the children at her residence for eight hours. Despite N.T.'s

concern that the mother would get " 'drunk' " on overnight visits, the mother successfully

completed them.

On July 3, 2014, the mother began a 60-day trial visit. On July 9, the court

restored physical custody to the mother, terminated reunification services to the father,

and ordered that the mother not supervise the father's visits.

However, before the mother successfully completed the trial period, the Agency

again removed the children and filed new petitions. On August 28, 2014, an Agency

6
social worker learned during an unannounced visit to N.T. at her school that the father

was living with the mother and the children. N.T. also told the social worker about a

domestic violence incident that had occurred the night before when the parents were

" 'drunk.' " N.T. said the father (1) pushed the mother into a window, which broke the

glass and cut the mother's arm; and (2) threw a Chihuahua at N.T.

The mother admitted to a social worker that she had consumed alcohol three days

before the unannounced visit to N.T.'s school.4 The Agency asked the mother to drug

test, but she did not comply. The mother denied the father was " 'living' " with her; she

claimed he was " 'just staying' " there. The mother acknowledged to the social worker

that drinking alcohol and allowing the father to have contact with the children were not

permitted under her case plan. The children were removed and placed with their original

foster mother's daughter.

The Agency initially recommended liberal supervised visits. However, after the

mother missed several scheduled visits, which disappointed the children, the Agency

recommended terminating the mother's reunification services and setting a section 366.26

hearing. The juvenile court ordered the children removed from the mother and scheduled

a section 366.26 hearing. Neither parent received further services.

4 N.T.'s teacher advised the social worker that the mother's breath smelled so
strongly of alcohol when they had met a few days before the unannounced visit that the
teacher followed her into the parking lot to ensure she would not be driving. The teacher
saw her get into a car being driven by someone else.

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 Visits Between October 2014 and April 2015

In October 2014, the mother appeared to be under the influence of alcohol during

one visit. The Agency asked her to drug test, but she refused. On a separate occasion,

the mother smelled of alcohol and had red eyes during a meeting at the Agency's office.

In November 2014, the Agency reported the mother had one good visit with the

children. However, the foster mother stated the mother became verbally combative

during one visit when the mother would not help clean up or instruct the children to do

so. During phone calls with the children, the mother discussed the dependency case with

them.

In December 2014, the Agency reported the children had a positive visit with the

mother, but noted that "[t]he caregiver typically has to discipline the children during the

visits, as the mother does not."

In January 2015, the Agency reported the children seemed excited to see their

mother during visits, but "just as easily conclude[d] the visit to return to their caregivers."

The mother had been calling the girls regularly in the evenings, but her calls "dwindled."

N.T. wanted the foster mother to stay near her during visits, and stated she did not want

to attend one visit. E.T. appeared to enjoy the visits. The mother did not pursue any

services for substance abuse or domestic violence, and she did not submit to five Agency-

requested drug tests over the preceding months.

In February 2015, the foster mother reported several concerns about the mother's

visits: both children called their mother by her first name; N.T. asked to skip all visits

(though E.T. was "fine" with them); the children would only speak by phone with the

8
mother if the foster mother bribed them (and even then, the calls lasted only about one

minute); the mother could not keep the children calm during the visits, requiring

intervention by security guards; the mother appeared slightly intoxicated during visits;

the mother asked the foster mother to select parent-child activities for the visits; the

mother frequently favored E.T. over N.T. "to the point [where] there is a lot of jealousy

and sibling rivalry" that "follows the girls home and affects their relationship"; and the

mother was " 'Ril[ing] the girls up' " at the end of visits by asking for additional hugs and

kisses.

A social worker also reported concerns with the mother's visits in February. The

mother removed N.T.'s eye patch "despite being told that it needed to stay on for two

hours after school every day"; the mother disregarded the social worker's requests to

clean up at the end of one visit; and the mother "continued to try to 'steal kisses' from the

children." Also, N.T. stated, "I don't want to come [to visits] anymore."

In March 2015, the Agency reported the children were becoming less interested in

visiting the mother. They no longer wanted to go to weekly Hebrew school, where their

mother would tell them she would visit them; they only asked to call their mother when

they wanted her to buy them something; and N.T. stated she did not want to see or speak

with the mother anymore, and suffered panic attacks after some visits. On one occasion,

the mother disrupted the children's visit with the father because she saw him bring a

girlfriend to his visit. The foster mother told the Agency she was no longer willing to

supervise the mother's visits because the mother was lying about the Agency authorizing

extra visits and phone calls that were not truly authorized.

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 In April 2015, N.T. still did not want to visit the mother and was reluctant to

interact with her during visits. E.T. appeared to enjoy the visits, was affectionate with the

mother, and would cling to her when visits ended. The Agency reported that the children

and the mother participated in a bonding study, but the appellate record does not indicate

its outcome.

Mother's Section 388 Petition and Agency's Section 366.26 Report

In May 2015, the mother filed a petition under section 388 requesting that the

court either return the children to her custody or provide additional reunification

services.5

The Agency opposed the mother's petition and submitted a report and addenda in

preparation for the section 366.26 hearing. The Agency recommended the juvenile court

terminate parental rights and select adoption as the children's permanent plan. The foster

mother, maternal grandparents, and maternal aunt and uncle all were willing to adopt the

children.

The Agency advised that when the children were asked if they wish to return to

the mother, they said " '[n]o' "—they would rather stay with the foster mother. N.T.

stated she did not want to visit the mother " '[b]ecause I don't need her anymore.' " The

children, "unlike highly bonded children," had begun calling their foster mother

" 'mom' "—conduct the mother was "quick to correct" when it occurred during visits.

5 Under section 388, a parent may petition to change or set aside a prior order based
on a showing of (1) changed circumstances or new evidence, and (2) the promotion of the
child's best interests. (§ 388; In re G.B. (2014) 227 Cal.App.4th 1147, 1157 (G.B.).)
10
These factors led a social worker to opine "it is clear that a strong parental bond does not

exist in this case."

The Agency reported that the mother's landlords advised that they had seen the

mother drinking alcohol outside her home, sometimes with the father.

The Agency expressed concern for the mother's lack of stable housing:

"Throughout the life of the case . . . , the mother has moved countless times, and has not

appeared to live in one place for more than six months." This led the Agency to conclude

"[t]he mother is unable to care for herself, even without the responsibly of caring for

children. For example, the mother is working several jobs, yet is unable to maintain a

stable residence as she has not paid for her rent in July 2015 and is potentially facing

eviction."

The Agency reported the maternal aunt and uncle had been approved for interstate

placement. N.T. appeared happy to learn that they wanted to adopt her; she did not want

to return to her parents. E.T. expressed a desire to live with the mother again; when

asked about living with her aunt and uncle, she told the social worker she was "done" and

left the room.

The Agency reiterated its recommendation that the court select adoption as

children's permanent plan, stating: "there is not a strong enough relationship between the

children and their parents to say that the parent-child relationship outweighs the benefits

of adoption. [N.T.] made it clear . . . that she does not want to live with her parents, nor

does she want to visit with them. [E.T.] appears to have a more favorable relationship

with her parents than [N.T.] However, the absence of living with her parents has not

11
caused her any detrimental effects. [E.T.] has spent more than half her life in foster

care . . . . [N.T.] has spent approximately a third of her life in foster care. Neither parent

has demonstrated a parental role with the children. A parental role arises out of engaging

in parenting behaviors on a day-to-day basis. A parental role also arises out of providing

a child with a sense of love, safety, and security. While these parents may love their

children, they have not provided them with safety and security."

The juvenile court made a prima facie finding on the mother's section 388 petition

and set an evidentiary hearing to coincide with the section 366.26 hearing.

The Hearing

After hearing testimony from a social worker, the mother, and the mother's rabbi's

wife, the trial court denied the mother's section 388 petition, terminated both parents'

parental rights, and ordered adoption as the children's permanent plan.6

The court explained it denied the section 388 petition because the mother had

demonstrated neither changed circumstances nor promotion of the children's best

interests. The court explained, in light of the children's numerous removals during the

course of the dependency case, "[t]hese poor kids need to have some permanence in their

life."

As for its selection of adoption as the children's permanent plan, the court

concluded that although the mother had maintained regular visitation with the children,

the parental bond did not outweigh the benefits of adoption. The court elaborated, "I

6 The mother does not challenge the juvenile court's ruling on her section 388
petition.
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think that the children, based on their comments, have made it clear that they do want

some permanency. . . . [¶ ] They've spent a lot of time in foster care and it's time for that

to end. They need some permanence. And I keep repeating myself, but I look at this

case and it's absolutely clear they need some permanency in their [lives] which they

haven't had at this point."

DISCUSSION

The mother contends the juvenile court erred in finding there was not a beneficial

parent-child relationship between her and her children within the meaning of section

366.26, subdivision (c)(1)(B)(i) that precluded the termination of her parental rights. We

disagree.

I. Relevant Legal Principles

" 'At a permanency plan hearing, the court may order one of three alternatives:

adoption, guardianship or long-term foster care. [Citation.] If the dependent child is

adoptable, there is a strong preference for adoption over the alternative permanency

plans.' [Citation.] 'Once the court determines the child is likely to be adopted, the burden

shifts to the parent to show that termination of parental rights would be detrimental to the

child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.]

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental

rights when "[t]he parents have maintained regular visitation and contact with the child

and the child would benefit from continuing the relationship." ' " (G.B., supra, 227

Cal.App.4th at p. 1165.)

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 This court has interpreted "the 'benefit from continuing the parent[-]child

relationship' exception to mean the 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. 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.).)

"A parent asserting the parental benefit exception has the burden of establishing

that exception by a preponderance of the evidence. [Citation.] It is not enough to show

that the parent and child have a friendly and loving relationship. [Citation.] ' "Interaction

between [a] natural parent and child will always confer some incidental benefit to the

child . . . ." ' [Citation.] For the exception to apply, 'a parental relationship is

necessary. . . .' [Citation.] ' "While friendships are important, a child needs at least one

parent. Where a biological parent . . . is incapable of functioning in that role, the child

should be given every opportunity to bond with an individual who will assume the role of

a parent.". . .' " (In re J.C. (2014) 226 Cal.App.4th 503, 529.) "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

14
will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D.

(2000) 78 Cal.App.4th 1339, 1350.)

"We apply the substantial evidence standard of review to the factual issue of the

existence of a beneficial parental relationship, and the abuse of discretion standard to the

determination of whether there is a compelling reason for finding that termination would

be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)

II. Analysis

The juvenile court found the mother carried her burden of establishing she

"maintained regular visitation and contact" with the children. (§ 366.26, subd.

(c)(1)(B)(i).) Therefore, we need only consider whether the court abused its discretion in

determining the benefits of continuing the mother's parental relationship outweighed the

benefits of a permanent plan of adoption. (See Autumn H., supra, 27 Cal.App.4th at p.

575.) We find no abuse of discretion.

First, as the Agency opined, the juvenile court could correctly conclude "there is

not a strong enough relationship between the children and their parents to say that the

parent-child relationship outweighs the benefits of adoption." "[U]nlike highly bonded

children," the children called their foster mother " 'mom' " and the mother " 'Nina.' " N.T.

stated she did not " 'need' " the mother, and the mother acknowledges in her briefing that

N.T. was "walling herself off from the mother."7 And although the Agency recognized

7 The mother offers a variety of psychological theories for why N.T. might have
been doing so. For example, she asserts N.T. "needed control over her circumstances. . . .
One way to get that control was to distance herself emotionally from her mother, whom
15
some of the mother's visits with the children were positive, the Agency also noted many

aspects in which the mother did not fulfill a parental role. For example, the mother

appeared to favor E.T. during visits, which created sibling rivalry that continued after

visits; the mother could not keep the children calm during some visits; the mother

sometimes asked the foster mother to select parent-child activities for the visits; the

mother removed N.T.'s eye patch; the mother disregarded requests to clean up at the end

of visits; the mother "[r]il[ed] the girls up" at the end of visits; and the "[t]he caregiver

typically ha[d] to discipline the children during the visits, as the mother [did] not."

In contrast to these concerns, the mother asserts she "consistently played the

parental role" because she fed the children healthy food; she was affectionate with them,

and they were with her; she kept the children engaged with age-appropriate activities; and

supplied them with clothes and other items. In the context of the concerns discussed

above, the juvenile court did not abuse its discretion in concluding the mother had not

met her burden of establishing that any detriment the children might suffer as a result of

the parental relationship being terminated outweighed the benefits of a permanent plan of

adoption.

Second, the juvenile court did not err in concluding it is "absolutely clear" the

children "need some permanency in their [lives] which they haven't had at this point."

she had always loved and been excited to see." The mother also asserts, "The amount of
time [N.T.] spent with mother decreased more and more over time, and the less time
[N.T.] saw her, the more she expressed the desire not to see mother again. . . . The
logical explanation for this is that it was simply too painful." While we agree with the
mother that expert opinion generally is not required to establish the beneficial
relationship exception, it would have been useful here to support these (and other)
otherwise-speculative psychological theories.
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The children were removed from parental custody three times over the course of about

two years and spent significant portions of their young lives out of their mother's care.

N.T. spent approximately one-third of her life out of her mother's custody, and had no

desire to be returned. E.T. spent approximately half of her life out of her mother's

custody. The mother was in denial about her substance abuse and domestic violence

issues and how they impacted the children. She continued drinking alcohol throughout

the course of the dependency case; she appeared intoxicated during several visits with the

children and during meetings with the Agency and N.T.'s teacher; and she did not comply

with numerous Agency requests to drug test. The mother also violated her case plan and

the juvenile court's orders by exposing the children to the father, who abused the mother

in the children's presence and threw a dog at N.T.

The juvenile court did not abuse its discretion in concluding the beneficial

relationship exception did not apply. Because the father's argument is premised on the

mother establishing this exception, and because we have rejected her argument, the

father's claim of error also fails.

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 DISPOSITION

The orders are affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.

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