In re Noah G.
The mother, A.R, appeals from the September 29, 2015 order terminating her parental rights. She argues the juvenile court should have applied the beneficial parent-child relationship exception pursuant to
II. PROCEDURAL HISTORY
On October 22, 2013, the Los Angeles County Department of Children and Family Services (the department) filed a
At the October 22, 2013 detention hearing, the juvenile court found the department made a prima facie showing that the children were described by
At the March 4, 2014 adjudication and disposition hearing, the juvenile court sustained the amended petition under
On August 4, 2014, the department filed a supplemental petition pursuant to
At the
The mother filed her notice of appeal on September 29, 2015.
III. EVIDENCE
A. October 22, 2013 Detention Report
On October 16, 2013, the department received a referral alleging the mother and Jose tested positive for amphetamines. The mother did not receive prenatal care during her pregnancy with Jose. She started using methamphetamine and marijuana 10 years ago, using drugs on the weekends or on a monthly basis. The mother began using drugs because of the pressure of taking care of the maternal great-grandmother. She used methamphetamine from January to June 2013 because she did not think she was pregnant. The mother stopped using methamphetamine in June but admitted she used drugs in August and on October 13, 2013. The children were released to the father. The
B. Jurisdiction and Disposition Report
The March 4, 2014 jurisdiction and disposition report states the children remained in the care and custody of the parents. The children were bonded with the parents. The parents agreed they would benefit from the substance abuse treatment programs. They also agreed to comply with all court-order services including random drug testing. But the parents failed to appear for drug tests. The parents also had not participated in any drug treatment program but reported they would start soon.
C. August 4, 2014 Detention Report
On July 30, 2014, the children were detained after the mother tested positive for methamphetamine and amphetamine. The mother tested positive for cannabinoids on March 10, 2104. Of the 14 random drug tests from March 25 to July 14, 2014, the mother missed 12 tests. The mother tested positive for methamphetamine and amphetamine on July 23, 2014, when she came for intake at a substance abuse treatment program. The father failed to appear for any drug tests after he tested positive for cannabinoids on March 11, 2014, while in treatment. The father stopped coming to treatment and was discharged from the drug treatment program on April 4, 2014.
D. Status Review Reports
The August 13, 2014 interim review report indicates the children were placed with the maternal grandmother on August 8, 2014. The maternal grandmother resides in a two bedroom, two bathroom apartment in the same apartment complex as the parents. The maternal grandmother lives with Terri R., a sister. Also residing in the maternal grandmother‘s apartment are Terri‘s two adult daughters, Amore R. and Megan R. They converted one of the bedrooms into the children‘s room with a bed for Noah and a crib and changing table for Jose. The maternal grandmother was retired and could be home to take care of both of the children. The maternal family had a close relationship with the children and saw them every single day. The maternal family stated they would comply
The March 19, 2015 status review report states: the children continue to thrive in the maternal grandmother‘s home; the parents live nearby and were a daily presence in the children‘s lives; the mother reported seeing the boys almost every day and helping to care for them; both parents had a very close relationship with the children; the maternal grandmother reported the visits went very well; the parents did not participate in any substance abuse treatment program and failed to appear for any drug tests; and the parents missed all 11 drug tests from August 2014 to February 2015. The department was unable to determine if the parents were drug free because they both continued to refuse to test after results came back positive. The maternal grandmother stated she was “‘more than willing to adopt‘” the children if the parents failed to reunify with the boys.
E. Section 366.26 Report
The September 29, 2015
F. Testimony at Section 366.26 Hearing
On September 29, 2015, the
The mother testified on her own behalf. The mother went to the grandmother‘s home every day at 7:15 a.m. to help Noah get ready for school. She helped Noah comb his hair, brush his teeth and dress for school. The mother made Noah breakfast and dropped him off to school with her family. She visited Noah‘s school twice, for the first
The mother testified she spent time with Jose during the day while monitored by the maternal family. She played and did activities with Jose including watching Disney learning shows and “Frozen” with him. The mother prepared food, fed Jose and bathed him. She also attended some of Jose‘s medical appointments.
The mother stated Noah enjoyed spending time with her. She testified: “[H]e tells me how much he wants to come home and how much he wants to be with me. When I have to leave, he does not want me to leave.” The mother added, “I usually leave around 8:15, try to put him to sleep at night, but he is frustrated because I have to go.” The
The juvenile court asked the mother, “So you‘re basically there all of the time?” The mother answered, “As much as I can be.” The court queried, “Well if you‘re there all of the time, when do you go to your drug program?” The mother replied, “I have not started, sir.”
IV. DISCUSSION
At a
Appellate courts have adopted differing standards of review for the parental relationship exception determination. Many courts review for substantial evidence. (In re G.B., supra, 227 Cal.App.4th at p. 1165; In re S.B. (2008) 164 Cal.App.4th 289, 297; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333-1334; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Other courts have applied an abuse of discretion standard of review. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) More recently, courts have adopted both the substantial
It is undisputed the mother maintained regular visitation and contact with the children. The mother visited the children daily. She helped Noah get ready for school, prepared him breakfast, took him to and from school, and helped him with homework. In addition, the mother took daily care of Jose by preparing and feeding him food, bathing him and playing with him. The children were bonded with their parents and the maternal family. The juvenile court found, “It is clear that the parents have had regular consistent visitation and contact and do have a parental role and relationship in the children‘s lives. . . .”
But the trial court concluded the mother failed to show termination of her parental relationship would be detrimental to the children when weighed against the benefits of
The mother fails to show her beneficial relationship with the children would outweigh the well-being they would gain in a permanent home with the maternal grandmother. (In re G.B., supra, 227 Cal.App.4th at p. 1165; In re K.P., supra, 203 Cal.App.4th at p. 621.) The mother did not occupy a parental role such that termination of her parental rights would be detrimental to the children. When the children were first detained in October 2013, they were released to the mother‘s custody over the department‘s objection. During the time the children were in the mother‘s custody, she appeared overwhelmed and did not follow up on family preservation services. The mother failed to take Noah for tutoring and for speech therapy evaluation. Ms. Raya from the Duarte child center reported: “[I]t has been a real, real struggle to work with them. The child is always late. Mom knows that the child will be going to kinder, but the child is never here in school. He was supposed to be tested for services, but since the child is never here, they already missed 2 appointments. I always call mom and she never picks up.” On July 30, 2014, the children were detained again after the mother tested positive for methamphetamine and amphetamine. While the mother visited frequently and participated in the children‘s care after they were placed with the maternal
Furthermore, the juvenile court could properly focus on the mother‘s unresolved substance addiction issues because the children became dependents of the court due to her drug abuse. It is undisputed the mother failed to comply with court orders to attend individual, alcohol and drug counseling, parenting classes and narcotics testing. The mother tested positive for cannabinoids on March 10, 2104. Of the 14 random drug tests from March 25, 2014 to July 14, 2014, the mother missed 12 tests. The mother tested positive for methamphetamine and amphetamine on July 23, 2014 when she came for intake at a substance abuse treatment program. After the positive drug test, the mother missed all 11 drug tests from August 2014 to February 2015. The department was unable to determine if the mother was drug free because she refused to test after the July 2014 positive drug test. The mother admitted she had no excuse. She stated she lacked motivation to start the court-ordered programs. The
The mother relies on In re S.B. (2008) 164 Cal.App.4th 289, 298-301 (S.B.) to support her contention that the beneficial parental relationship outweighs any need for adoption. The mother‘s reliance is misplaced. In S.B. the father admitted to using methamphetamine “on and off” for 30 years. (S.B., supra, 164 Cal.App.4th at p. 293.) The child was removed from the father‘s custody. Thereafter, the father complied with every aspect of his case plan including maintaining his sobriety. (Ibid.) The department reported the father made “‘consistent efforts to alleviate and or mitigate the reasons his family was brought to the attention of the court.‘” (Id. at p. 294.) In concluding the beneficial parental relationship applied, the Court of Appeal reasoned the father‘s full compliance with the case plan evidenced complete devotion to the child‘s welfare. (Id. at pp. 300-301.)
In a later case, In re Jason J. (2009) 175 Cal.App.4th 922, 937, the same appellate court limited S.B. to its particular facts. (See In re J.C., supra, 226 Cal.App.4th at p. 530.) In Jason J., the Fourth Appellate District, Division One explained: “In [S.B.], this court reversed an order terminating the father‘s parental rights over his daughter, S.B., under the parent-child beneficial relationship exception to adoption. The parties agreed the father maintained regular, consistent and appropriate visitation with S.B., and the evidence showed he was S.B.‘s primary caretaker for three years; when she was removed from his custody he immediately acknowledged his drug use was untenable, started services, maintained his sobriety, sought medical and psychoanalytic services and
In the case of In re C.F. (2011) 193 Cal.App.4th 549, 558-559, the same appellate court stressed: “[W]e once again emphasize that S.B. is confined to its extraordinary facts. It does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact.” (See In re J.C., supra, 226 Cal.App.4th at p. 530.) In C.F., the Fourth Appellate District, Division One rejected the mother‘s reliance on S.B. because the facts were readily distinguishable. (In re C.F., supra, 193 Cal.App.4th at p. 558.) The Court of Appeal explained, “[The mother] did not maintain her sobriety. She resumed drug use and lost custody of her children after the reunification period ended. She made no showing the termination of parental rights would cause the children any detriment.” (Ibid.)
In her reply brief, the mother asserts there is no evidence she continued using drugs after her positive test on July 23, 2014. Although there is no direct evidence of continued drug use, the mother missed all 11 drug tests after her July 2014 positive test. Under these circumstances, the juvenile court could reasonably infer the mother‘s failure to comply with a court-ordered drug test may be considered as a positive test. (In re Lana S. (2012) 207 Cal.App.4th 94, 104 & fn. 5; see also In re N.M. (2003) 108 Cal.App.4th 845, 857 [parents obligated under case plan to prove abstinence from illegal drugs].) This is not a case where there is a reasonable explanation for missing a test; e.g. a parent gets off work late and belatedly arrives at a testing facility. A juvenile court, under those manifestly innocent circumstances, could decline to view the failure to appear for a drug test as a sinister effort to evade responsibility. However, the juvenile court could reasonably conclude that common sense suggests a parent who consistently fails to appear for drug tests does so because of a consciousness of guilt. (People v. Roberts (1992) 2 Cal.4th 271, 310-311 [no error occurred because the trial court instructed the jury it could infer a consciousness of guilt from the defendant‘s refusal to take a blood test]; People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 118-119 [evidence of a refusal to undergo a blood alcohol test is evidence of a consciousness of guilt]; People v. Roach (1980) 108 Cal.App.3d 891, 893 [refusal to undergo a narcotics test in a driving under the combined influence of alcohol and drugs prosecution is evidence of consciousness of guilt].) Moreover, the mother‘s long-standing drug abuse is in stark contrast to that in S.B. And her drug abuse is evidence continuing the parent-child relationship would not be beneficial. The juvenile court, under any standard of review, could conclude the evidence was insufficient to demonstrate termination of the mother‘s parental rights would be detrimental to the children.
V. DISPOSITION
The order terminating parental rights is affirmed.
CERTIFIED FOR PUBLICATION
TURNER, P. J.
I concur:
KUMAR, J.*
I join the majority‘s opinion, except its discussion of the circumstances in which a trial court may consider a missed drug test to be equivalent to a positive drug test. In my view, we need not opine on the circumstances under which a trial court may infer consciousness of guilt from the failure to submit to drug testing in order to resolve the issues before us. Rather, it is mother A.R.‘s failure to seek treatment for a longstanding drug problem, including drug testing that is customarily a core component of such treatment, that stands this case in stark contrast to In re S.B. (2008) 164 Cal.App.4th 289 and undercuts the showing mother attempted to make in support of invoking the beneficial parent relationship exception.
BAKER, J.