In re L.G. CA4/1

Filed 6/2/16 In re L.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 L.G., a Person Coming Under the
Juvenile Court Law.
D069266
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. CJ1162)
Plaintiff and Respondent,

v.

C.T.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Laura J.

Birkmeyer, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and

Appellant.

Terence M. Chucas, under appointment by the Court of Appeal, for Minor.

Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy, and

Christa Baxter, Deputy County Counsel, for Plaintiff and Respondent.
 Appellant C.T. appeals a juvenile court judgment terminating her parental rights to

L.G., age 8, and selecting adoption as her permanent plan. (Welf. & Inst. Code,

§ 366.26; all further statutory references are to this code unless noted.) C.T. challenges

the sufficiency of the evidence to support the court's finding that no exception to adoption

preference applied, i.e., the beneficial parent-child relationship. (§ 366.26, subd.

(c)(1)(B)(i); In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).)

Since the inception of the dependency proceedings, L.G. has been placed with the

maternal grandparents, and C.T. has usually visited her on a weekly basis. C.T. agrees

this placement is appropriate for L.G., but asserts the juvenile court erred in terminating

her parental rights because her daughter is bonded to her and thus guardianship or long-

term foster care was the better permanent plan. The record does not show any lack of

supporting evidence for the judgment, or any abuse of judicial discretion, and we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Jurisdiction, Disposition, and Termination of Reunification Services

C.T., a 29-year-old single mother, was arrested in March 2014 after

methamphetamine was found in her home in a place that was accessible to 6-year-old

L.G. C.T. had started using drugs around age 15 and was currently using medical

marijuana for headaches and sleep issues. Pursuant to section 300, subdivision (b), the

San Diego County Health and Human Services Agency (Agency) filed a petition alleging

that a substantial risk existed that L.G. would suffer serious physical harm or illness due

to C.T.'s inability to care for her because of substance abuse. There had been six

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previous referrals of the family involving domestic violence and drug issues (one of

which was substantiated), before this petition was filed.

In April 2014, C.T. submitted the matter and the juvenile court made true findings

on the petition. It declared L.G. a dependent, found her placement with C.T. would be

detrimental, and placed her with the maternal grandparents (the grandparents), who were

already involved in caring for her when C.T. was at work. Reunification services were

ordered for C.T., including drug rehabilitation and monitored visitation. Paternity

inquiries were pending for the biological father, M.G., who was living elsewhere and was

not involved in L.G.'s life. A court appointed special advocate (CASA) was provided for

L.G. in April 2014.

At the inception of the dependency case, C.T. attended a counseling and parenting

program but was discharged several times for having positive drug tests. She then

completed a five-day residential detoxification program. At the six-month review

hearing in October 2014, the court made a finding that C.T. had not made substantial

progress with her case plan, but it continued services, including supervised visitation. As

of the end of 2014, C.T. was no longer attending drug rehabilitation programs, either

because of unexcused absences, many positive drug tests, or misunderstandings.

In November 2014, the grandmother told social workers that C.T. did not call or

visit when she said she would, and since that was hurtful to L.G., the grandmother had

stopped telling her to expect contact with C.T., so that if it did happen, it would be a

positive thing. In September 2014, C.T. had been referred to a structured weekly

visitation program, Incredible Families, but was delayed in starting it until January 2015,

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because she missed two sign-up appointments. She participated in the program through

May 2015, but did not often visit outside of it. When she visited L.G. on Mother's Day,

she had to leave, promising to return, but did not do so although she did call to say good

night. L.G. appeared to be sad when her mother promised things and did not follow

through.

In February 2015, C.T. started a new drug program. She was continuing with

therapy but had missed several drug tests because of illness. She did not provide social

workers with more than two doctor's notes to excuse her from drug testing.

At the 12-month review hearing in May 2015, the court found that C.T. had not

made substantive progress with her case plan, particularly drug treatment. C.T.

apparently lacked the ability to understand the impact of her drug use on L.G. or to see

that L.G. needed to be with her more regularly. The court found that reunification

services should be terminated and set a permanency planning hearing.

C.T. filed a request to challenge the orders of the juvenile court at the 12-month

review hearing. (Cal. Rules of Court, rule 8.452.) However, this Court dismissed the

case after C.T.'s attorney indicated there were no viable issues for review. (C.T. v.

Superior Court (dism. July 8, 2015, D068183).)

B. Permanency Planning Hearing and Ruling

The contested permanency planning hearing was held on November 17, 2015.

(§ 366.26.) The Agency's assessment stated that L.G. was both specifically and generally

adoptable. After May 2015, when the Incredible Families visitation program ended, C.T.

had plans for weekly visits to be supervised by the grandparents, but the visits were

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sporadic. Although the grandparents had no plans to break family ties with C.T., they

preferred adoption and were not agreeable to a guardianship arrangement, because they

thought having too many people involved in decisionmaking for the child was

problematic. However, they continued to hope that C.T. could become a more consistent

and positive presence in L.G.'s life, going forward.

The court allowed L.G.'s stipulated testimony to be presented, stating that for the

past few months, she sees C.T. once or twice a week, not that often. L.G. gets kind of sad

when C.T. is not there. L.G. thinks that C.T. is really nice but has a lot of work to do that

the judge gives her. When L.G. lived with C.T., they had dogs that love L.G. very much,

and she misses them and C.T. very much. "That's why she really wants to go back to

[C.T.'s] house," where "she would hug [the] dogs [and] her mom and be happy all day."

In the CASA volunteer's report, she noted that during the summer months of 2015,

C.T. visited L.G. between one and three times per month, canceling the other scheduled

visits. L.G. became upset when her visits did not go as planned. The grandparents were

doing an excellent job of supporting the relationship between C.T. and L.G.

C.T. did not testify, but argued she had continued to visit L.G. on a regular basis,

usually weekly. L.G. loves her and wants her to continue being a part of her life, and it

would likely be detrimental if those ties were severed. (§ 366.26, subd. (c)(1)(B)(i).)

C.T. agreed that L.G. should not be removed from the grandparents' custody, but believed

that guardianship would be more appropriate than an adoptability finding, for the same

reasons. The biological father did not want to participate in the child's life but objected to

an adoption finding, to support C.T.'s guardianship arguments.

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 The Agency disagreed with C.T. that she had adequately complied with the

visitation and contact requirement, since L.G. often became disappointed and upset when

C.T. missed visits or did not follow through on her promises. The Agency disputed the

claim that the beneficial parental relationship exception to adoption should apply, and

further argued guardianship should not be forced on the grandparents, because they

believed adoption would be a better alternative. (§ 366.26, subd. (c)(1)(B)(i).)

At the close of the hearing, the court found L.G. was adoptable and the asserted

parental relationship exception did not apply. The court commented that the case had

been a roller coaster for L.G., because C.T.'s failure to visit regularly hurt the child

emotionally. C.T.'s visits were few and far between before the Incredible Families

program started in January 2015, after C.T.'s delay in signing up. When she did visit, she

was loving and caring and engaged in positive activities, but there were inconsistencies

and confusion in visitation, up to the present. L.G. seemed to have an idealized view of

what it would be like if she moved back to live with her mother and the dogs. Because of

these circumstances, L.G. had been required to process her mother's absence for quite a

while, and seemed to be treating her like a beloved older sister. L.G. had otherwise been

doing well in the grandparents' home during the past year and a half.

The court considered the consequences of a permanent plan short of adoption,

noting that it would mean 10 more years of supervision and court hearings and monthly

visits with the social worker. The court found such a plan would be a travesty because it

would be disruptive and would not promote the stability and permanence that L.G. needs.

The court took the wishes of both the child and the grandparents into account, but made

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an independent decision based on the best interests of the child and the evidence,

including the views of the social worker. Although L.G. would undoubtedly be sad and

disappointed if C.T.'s parental rights were terminated, L.G. had already shown an ability

to process her situation, including the ongoing absence of her mother from her life. It

would not be detrimental to her to terminate parental rights and adoption was found to be

in her best interests as the permanent plan.

C.T. appeals. L.G.'s appointed counsel filed a letter joining in the Agency's

respondent's brief.

II

TERMINATION OF PARENTAL RIGHTS

A. Applicable Standards

The permanency planning hearing aims "to end the uncertainty of foster care and

allow the dependent child to form a long-lasting emotional attachment to a permanent

caretaker." (In re Emily L. (1989) 212 Cal.App.3d 734, 742.) The primary consideration

at the hearing is the best interests of the child. (In re Kerry O. (1989) 210 Cal.App.3d

326, 333.) At the permanency planning hearing the court has numerous choices, with

termination of parental rights and an order for the child to be placed for adoption, as the

first choice. (§ 366.26, subd. (b)(1).) "Guardianship, while a more stable placement than

foster care, is not irrevocable and thus falls short of the secure and permanent future the

Legislature had in mind for the dependent child." (In re Lorenzo C. (1997) 54

Cal.App.4th 1330, 1344.)

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 To support this beneficial relationship exception to adoption, the court must find

"a compelling reason for determining that termination would be detrimental to the child."

(§ 366.26, subd. (c)(1)(B); In re C.F. (2011) 193 Cal.App.4th 549, 553.) The juvenile

court considers the detriment issue on a case-by-case basis, taking into account the many

variables that can affect the parent-child relationship. (Autumn H., supra, 27 Cal.App.4th

567, 575-576; In re J.C. (2014) 226 Cal.App.4th 503, 532.) Among the variables to be

considered in evaluating the benefits of a parental relationship are the child's age, the

amount of time the child spent in the parent's care, whether the interactions are positive

or negative, and whether the child has particular needs that the parent can satisfy. (In re

Angel B. (2002) 97 Cal.App.4th 454, 467.)

The court in In re J.C., supra, 226 Cal.App.4th at pages 530 to 531 applied a

substantial evidence standard of review to the preliminary factual issues of regular

visitation and contact, and whether the parent proved there was a beneficial parental

relationship with the child. However, as to the weighing test under section 366.26,

subdivision (c)(1)(B)(i), in which the juvenile court balances the parent-child relationship

against the benefits the child would derive from adoption, the appellate court opined that

the abuse of discretion test may apply to evaluate this " ' " 'quintessentially' "

discretionary decision.' " (In re J.C., supra, at p. 531; In re Bailey J. (2010) 189

Cal.App.4th 1308, 1314.) Based on the respective showings, the court must balance "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." (Autumn H.,

supra, 27 Cal.App.4th at p. 575.)

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 C.T. objects that this analytical approach adds more criteria to the court's decision

than the statute requires. We disagree, because the juvenile court must determine if "a

compelling reason" exists to find termination would be detrimental to the child, as part of

applying the statutory criteria. (§ 366.26, subd. (c)(1)(B).) It is appropriate to apply the

substantial evidence test to the juvenile court's findings on those criteria regarding the

beneficial parental relationship exception. (Autumn H., supra, 27 Cal.App.4th at pp. 575-

577.) We make presumptions in favor of the judgment, while viewing the evidence in the

light most favorable to the Agency and giving the judgment the benefit of all reasonable

inferences. (In re C.F., supra, 193 Cal.App.4th at p. 553; In re L.Y.L. (2002) 101

Cal.App.4th 942, 947.)

B. Visitation Requirement

"Regular visitation and contact" are statutory threshold requirements for a claim

that a beneficial parental relationship has been maintained. (§ 366.26, subd. (c)(1)(B)(i).)

C.T. contends she regularly visited with L.G. on a weekly basis. The Agency argues that

C.T.'s efforts to maintain contact and visitation were insufficient, especially since L.G.

often became disappointed and upset when C.T. did not come or call when she said she

would. C.T. had never progressed to unsupervised or overnight visits. Although L.G.

was usually glad to see C.T., the social worker who observed recent visits noticed that

L.G. looked to the grandmother for guidance if problems arose. During weekly visits in

October 2015, L.G. sometimes got frustrated or angry with her mother and argued or left

the room, and the grandmother, not C.T., was able to get her to return.

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 In making its ruling, the juvenile court examined whether the criterion of regular

visitation had been met, noting there was not much case authority stating how regular

"regular" should be. On a commonsense basis, the court believed that C.T. had not

"regularly" visited within the meaning of the statute, because she had been told time and

time again it was hurtful to the child when she did not show up, but she continued to miss

visits and disappoint the child, which was hurting the parental connection.

However, the court went on to assume for the sake of argument that the regular

visitation prong had been met, and analyzed the record, including visitation, in terms of

the best interests prong. This was an appropriate approach and we shall do likewise.

C. Application of Criteria: Substantial Benefit Prong

The evidence showed that L.G. is likely to be adopted, either by the grandparents

or other approved local families wishing to adopt a child with such characteristics. C.T.

contends she demonstrated there was a beneficial parental relationship, precluding

adoption. (§ 366.26, subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.) We

first assess the showing on L.G.'s substantial benefit from continuing her parental

relationship with C.T. (Zachary G., supra, 77 Cal.App.4th at pp. 810-811.) After that,

we examine C.T.'s contention that guardianship, not adoption, would best promote the

child's best interests.

The juvenile court found that while L.G. loves her mother and enjoys their

interactions, whatever benefit being conferred upon her by this contact was greatly

outweighed by L.G.'s need for stability. The grandparents had successfully provided

L.G. with a protective and loving environment, including participation in school and

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outside activities. C.T. had been unable to maintain visitation in a consistent way that

created positive aspects to their relationship that outweighed the benefits to L.G. of a

permanent placement in such an adoptive home. C.T. did not appear to occupy a parental

role in L.G.'s life, seeming to act more like an older sister who was consistently unable to

make the needs of the child a priority over her own needs. (Autumn H., supra, 27

Cal.App.4th at pp. 575-576; In re C.F., supra, 193 Cal.App.4th at pp. 558-559 [parent

cannot establish applicability of parent-child beneficial relationship exception by

showing the child derives only incidental benefits from maintaining parental contact].)

At the hearing, the social worker testified that if C.T.'s parental ties were severed,

it was possible that L.G. might benefit from therapy to assist her in addressing her

feelings or confusion on the subject. However, he also noted that L.G. was asking fewer

questions about her mother as time passed, and she seemed to be able to deal with her

ongoing separation issues. L.G. did not have appear to have special needs that only C.T.

could satisfy. (In re Angel B., supra, 97 Cal.App.4th at pp. 467-468; Autumn H., supra,

27 Cal.App.4th at pp. 575-576.) Although the juvenile court made an independent

decision on the detriment issue, it was entitled to credit the assessments and conclusions

of the social workers. (In re Casey D. (1999) 70 Cal App.4th 38, 53.) The evidence

supported a conclusion that continuing the parental relationship would keep L.G. in

limbo, which was contrary to her needs for stability and permanence.

On the planning choices, the court was made aware that the grandparents favored

adoption over guardianship, but they were willing to allow continued family contact

between L.G. and C.T. Although C.T. contends legal guardianship should have been

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selected as L.G.'s permanent plan, the juvenile court is subject to the mandatory

preference for adoption over legal guardianship. (§ 366.26, subd. (b)(1); In re Fernando

M. (2006) 138 Cal.App.4th 529, 536 [preference for adoption over other permanent plans

is overridden only if statutory exception applies].)

In In re Fernando M., supra, 138 Cal.App.4th 529, 535, the court was discussing a

different exception to the adoption preference, in which a relative or foster caregiver is

unable or unwilling to adopt the child because of "exceptional circumstances." (§ 366.26,

subd. (c)(1)(D).) There, the grandmother had physical custody of the child and wanted to

keep him in the home, but she and the grandfather did not want to adopt. The appellate

court found the juvenile court had applied the improper test when deciding that

guardianship for the grandmother was inappropriate under those circumstances.

Removing the child for adoption by another would not promote the statutory purposes of

stability and would be detrimental to the child. (In re Fernando M., supra, at p. 537.)

In L.G.'s case, the juvenile court could reasonably conclude on this record that

adoption by the grandparents, her long time caregivers, would best promote the statutory

purposes of stability and permanence. (§ 366.26, subd. (b)(1).) C.T.'s preference for a

guardianship or long term foster care order, over adoption, is not supported by the record.

The evidence demonstrated that L.G. would be best served by having decisions made for

her by the people that lived with her and cared for her. There was no apparent need for

further involvement by the Agency, which would entail another 10 years of ongoing court

supervision of any guardianship or foster care order. The juvenile court had a substantial

basis in the evidence to interpret the beneficial relationship exception to adoption as

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inapplicable to this case and to select this permanent plan. (Autumn H., supra, 27

Cal.App.4th at pp. 575-576; In re L.Y.L., supra, 101 Cal.App.4th at p. 947.)

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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