Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Stanislaus County Nos. 509228 & 509229 Nancy B. Williamsen, Commissioner.
Catherine Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Kane, J.
I.R. appeals from orders terminating his parental rights (Welf. & Inst. Code, § 366.26) to his sons, M. and E. This is not his first appeal arising out of his sons’ dependency. He appealed the juvenile court’s 18-month review decision to terminate his reunification services. (In re M.R. et al. (Dec. 16, 2008, F054964) [nonpub. opn.] (M.R. I).) Appellant claimed a due process violation because he and the mother shared an interpreter during a portion of the hearing. In M.R. I, we assumed this was error but concluded it was harmless beyond a reasonable doubt. In this appeal, appellant again claims due process error because he and the mother shared an interpreter at the section 366.26 hearing. He also contends the juvenile court erred when it found termination would be detrimental to the children. Appellant further joins the mother in a similar detriment argument she has raised in her appeal from the termination orders. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
M. and E. were victims of their parents’ domestic violence. For instance, when the mother was pregnant with E., she held a knife to M.’s throat and asked appellant how he would like it if she hurt M. M. was less than a year old at the time. Later during the pregnancy, appellant argued with the mother while he drove a car and threatened to crash the car and kill the whole family. Separations, restraining orders, and reconciliations became a routine aspect of the couple’s relationship.
In June 2005, E. was born with spina bifida and hydrocephalus. As a result, he has no feeling below the waist and requires constant care. Respondent Stanislaus County Community Services Agency (agency) initiated these dependency proceedings after infant E. sustained a series of unexplained injuries. They included two fractured ribs in December 2005, a bite mark on his right forearm, bleeding toes, and fingerprint-shaped bruises on both sides of his mouth a few months later, and a new fractured rib in May 2006.
Reunification Phase
As of the summer of 2006, the Stanislaus County Superior Court exercised its dependency jurisdiction, formally removed the children from parental custody and ordered reunification services for both parents. Over the next 18 months, the agency provided a range of services, which both parents largely completed. However, neither of them could provide an explanation for E.’s injuries despite the opportunity to do so; this was considered critical to either parent regaining custody. There was also evidence appellant continued to present a moderate risk of future violence.
The parents’ violent relationship continued throughout the remainder of these proceedings even though they divorced in January 2007. Also, the children remained exposed to the parents’ violence. During a May 2007 visit with the children, appellant apparently slapped the mother’s face in front of them. During a September 2007 visit, appellant was arrested on charges of kidnapping and falsely imprisoning the mother. The children witnessed a police officer interview the mother while appellant sat in a police car following his arrest.
In February 2008, the court terminated reunification services for appellant and continued the hearing as to the mother. The court also reduced appellant’s visits to once a month.
Visitation
The court initially ordered supervised, weekly visits between the children and their parents. The parents regularly visited the children, during which they played age appropriate games. The children appeared to enjoy their visits.
According to a September 2006 report, M., the older of the two children, cried when visits ended and would “also sometimes tantrum.” By the end of 2006, M. was receiving mental health services to deal with behavior concerns, including the “tantruming and dealing with the aftermath of visits.” Both parents also attended most of the children’s medical appointments as well.
In December 2006, the court changed the visits from supervised to monitored. Monitored visits meant a social worker only quickly passed by the room where the visits occurred and rarely stayed longer than five minutes. According to the next status review report, the parents visited the children together and visits were appropriate until the May 2007 incident described above.
The following status review report for late 2007 disclosed the parents were separately visiting the children on a weekly basis. The parents brought snacks and sometimes toys for the children and were loving and playful with the children. For the most part, the children were happy to see the parents and showed no distress after visits. After appellant’s arrest in September 2007, he waived visits during his incarceration.
According to an April 2008 status review report, appellant maintained once-a-month visits with the children. As in past reports, the report stated both parents brought snacks and sometimes toys and were loving and playful with the children. The children and the parents were happy to see each other. Although the children continued to show no distress after visits, each was more aggressive than normal with other children, especially after visits with the parents. M. continued to receive counseling services.
The Need for Permanency Planning
In May 2008, the superior court ruled the children would be at a substantial risk of harm if returned to either parent’s custody. The court in turn terminated all reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child. It also reduced the mother’s visits to once a month.
In advance of the permanency planning hearing, the agency submitted a “366.26 WIC Report” in which it recommended the court find the children adoptable and terminate parental rights. The report included an assessment of each child’s physical condition and emotional state revealing, in relevant part, that the older child continued to receive counseling services. He also continued to be aggressive with his peers, especially after visits with the parents. The foster mother reported he did not want his caregivers out of his sight for days after visits with the parents. The parents were separately visiting the children once a month. The report contained the identical description of their earlier visits, namely: both parents brought snacks and sometimes toys for the children and were loving and playful with them; and the children and parents were happy to visit each other and the children showed no distress after visits.
According to an adoption specialist’s assessment in the report, the children were likely to be adopted. They had been with the same foster caregivers for two years and were extremely bonded to them. The caregivers, both of whom were school teachers, excelled at meeting the children’s educational and medical needs, especially for the younger child. The couple had expressed their interest in adopting the children since the very beginning. The foster caregivers also had an approved adoption home study. Further, the children indicated to the adoption specialist that they were happy and, having expressed some understanding of adoption, wanted to be adopted.
Permanency Planning Hearing
At the start of the permanency planning hearing, the court made a record of the fact both parents were being assisted by a Spanish language interpreter. Although the court requested two interpreters for the hearing, the court interpreter’s office was shorthanded and could only provide one interpreter. However, the court added the interpreter had a “technology device” to use so that both parents can listen to a single translation. The court asked the interpreter if, with the use of the device, it would be possible for one parent to testify and the non-testifying parent to still be able to listen to the interpreter’s translation. She replied yes, explaining:
“Wireless devices, I have two receivers, which is what the parents have. I have a transmitter, which is the one that I’m speaking into the microphone. When I move around the room, the parents can still hear my translation. We can translate up to 90 people on different channels.
“As one parent testifies at the witness stand, the interpreter will stand next to them. They will turn off their receiver. The non-testifying parent will keep the receiver on. And then from the microphone that the interpreter will still be using at the witness stand, they will be able to hear everything that is spoken and said as if they had their dedicated interpreter.”
The court advised the parents that if, during the hearing, either had a question to ask his or her attorney, that parent should raise his or her hand at which point the court would stop the proceedings so that the parent could use the interpreter to communicate with counsel.
Appellant’s attorney objected, for the record, to the use of one interpreter. Noting the objection, the court found there was no irregularity in using one interpreter for two parents. The court cited the benefit of the technology device and its willingness to accommodate the parents by stopping the hearing at any time so that a parent could use the court interpreter in a confidential communication with counsel.
Attorneys for the agency and the children had no evidence to introduce other than that contained in the 366.26 WIC Report. The mother took the stand in opposition to the agency’s recommendation and also called the social worker who first supervised and later monitored the parents’ visits with the children. Appellant did not call any witnesses.
The mother testified briefly about her visits with the children. She believed they needed her and would be affected if she could no longer see them. They would remember who she was. Appellant’s counsel did not cross-examine the mother.
The social worker testified she first supervised and later monitored the parents’ visits with the children. She acknowledged she could see a bond between the mother and the children.
At this point, the court stopped the proceedings, noting the mother had a question for her attorney. According to the mother’s attorney, the mother said her ear piece did not work. The attorney added: “So she’s just going to interpreter [sic] for her.” The court thanked the mother for raising her hand so that the court knew what was happening.
At this point, the direct examination of the social worker resumed. There was no complaint by appellant or his attorney that either his ear piece no longer worked or the interpreter was no longer translating the social worker’s testimony for his benefit.
The social worker testified she did not think the children would suffer long-term detriment if appellant had no further contact with them. “[I]t is going to affect like any children who lose their parents, but at the same time I see how they’re bonded to the foster mom.”
The mother’s attorney also questioned the social worker in general terms about when a child starts to bond with a parent. According to the social worker, who stated she was not an expert in bonding, the first year was the most essential and the first five years were very important. If a child had substantial bonding issues, such issues could possibly affect the child for life. It was also very helpful to children when they had positive models, i.e. other adults who take on the role of caregivers.
On cross-examination by appellant’s attorney, the social worker testified appellant was bonded with his children. The social worker also confirmed the parents were still consistently visiting the children. Appellant’s attorney further examined the social worker regarding the adoption specialist’s statement in the 366.26 WIC Report that the children indicated they wanted to be adopted. The social worker never questioned the children in this regard and did not believe they were old enough to understand adoption.
The agency’s attorney questioned the social worker about the children’s relationship with the foster parents. After the court overruled a relevance objection, the social worker testified based on what she observed when she went to the foster parents’ home that the children were very comfortable playing and the foster mom was very attentive. The social worker had observed this as well at visits with the parents. The children were “fine” going to visit the parents and “fine” going back to the foster home. She had not seen any less of a bond with the foster mom than with the parents. In her opinion, the children had formed a healthy bond with their foster parents.
In questioning by the children’s attorney, the social worker testified since the time the court reduced the children’s visits with their mother, the children did not exhibit any distress, grief or change in behavior. In general, though, the children, and the older one in particular, had a hard time both before and after visits.
On recross-examination by appellant’s attorney, the social worker explained she based her testimony, about the children’s lack of recent distress, on home visits she made every three to four visits and the times she saw the children with their parents at the agency’s office.
During closing arguments, attorneys for both parents urged the court to find it would be detrimental to terminate parental rights based on the parents’ visitation and relationship with the children. The court found each child was likely to be adopted and terminated parental rights. It also rejected the parents’ claim of detriment, noting there was no evidence introduced regarding any detriment.
DISCUSSION
I.
Once again, appellant claims he is entitled to reversal of the juvenile court’s orders because there was only one interpreter provided to translate for both him and the mother at the permanency planning hearing. Aware of our decision in M.R. I, he urges we again assume the use of one interpreter was error, regardless of the technology device used, but conclude this time the error was not harmless beyond a reasonable doubt. Citing to People v. Rodriguez (1986) 42 Cal.3d 1005, as he did in M.R. I, appellant contends: he and the mother had an actual or potential conflict of interest; and when the mother’s earpiece stopped working, his ability to communicate or comprehend was impeded. Alternatively, he assumes given the stakes at a permanency planning hearing that it is impossible to say beyond a reasonable doubt that his understanding of the proceedings was not impacted or his ability to communicate with his attorney was not interrupted.
Because the parties have not briefed the impact, if any, of the technology device used, we have not considered its impact on appellant’s claim of error. We will assume again, for the sake of argument, appellant and the mother were entitled to separate interpreters as a matter of constitutional due process. Even so, we conclude beyond a reasonable doubt that appellant was not prejudiced.
As we explained in M.R. I, we look to see whether there is record evidence of an inability to communicate or comprehend or of a specific basis for imputing an actual or a potential conflict of interest between appellant and the mother. (M.R. I, supra, slip op. pp. 9-11, citing People v. Rodriguez, supra, 42 Cal.3d at p. 1014.) Having reviewed the record as summarized below, we find no such evidence.
In appellant’s view, the point at which the mother’s earpiece stopped working resulted in his inability to communicate or comprehend. He relies on the statement by the mother’s trial counsel: “So she’s just going to interpreter [sic]for her.” He infers from this remark that the interpreter thereafter translated solely for the mother and not him.
Such an inference defies reason. It also ignores the interpreter’s earlier explanation of the analogous situation posed when one parent testified, that is the testifying parent would turn off her receiver while the non-testifying would keep the receiver on. The interpreter would stand next to testifying parent while still speaking into the microphone for the non-testifying parent. It is unreasonable to assume, as appellant does, that the interpreter would not have followed such a protocol once the mother’s earpiece failed to work. In any event, were appellant’s deference drawing accurate, we would expect appellant to raise his hand as he had been directed to, his attorney to voice an objection and/or the court to stop the proceedings to work out a solution. However, none of these scenarios occurred. We conclude there is no record evidence that appellant was unable to communicate or comprehend during the remainder of the permanency planning hearing.
Appellant’s conflict of interest claim is equally meritless. He cites the violent relationship which existed between him and the mother, the separations, restraining orders and eventually divorce, the fact that they had to separately visit the children, and the mother’s agreement with the agency’s recommendation to terminate his reunification services. He fails to explain, however, how any of these factors, individually or combined, amounted to an actual or potential conflict of interest at the permanency planning hearing.
Although the consequence of the permanency planning hearing in this case was profound in that the court selected adoption as the children’s permanent plan and terminated parental rights, the issues before the court were narrow and did not pit the parents, one against the other. The court had to decide first whether the children were likely to be adopted. (§ 366.26, subd. (c)(1).) Here, there was no debate by any of the parties on this point. Once the court could find the children adoptable, termination was a foregone conclusion unless one or both of the parents could persuade the court to find termination would be detrimental to the children. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
On this point, the parents were united in arguing their history of consistent and loving visits with the children entitled them to claim termination would be detrimental. As respondent observes, it was not necessary in order for either parent to prevail to demonstrate that the other parent did not have a beneficial relationship. Under these circumstances, there was neither an actual nor a potential conflict of interest between the parents as parties at the permanency planning hearing. Finally, the fact that the parents did not persuade the court appears in no way attributable to the availability of only one interpreter in the courtroom.
II.
Appellant also argues that the evidence was insufficient to establish the children would not benefit from a continued relationship with him and their mother. He joins in a similar argument raised by the mother in her appeal from the termination order. In the mother’s appeal, we have rejected her claim of error. As discussed below, we conclude appellant’s claim is meritless as well.
Because the children were likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically-designated circumstances, set forth in section 366.26, subdivision (c)(1), provided a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.) Here, both parents claimed they maintained regular visitation with the children who would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) Consequently, the parents bore the evidentiary burden of establishing termination would be detrimental. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
As the trial court ruled, the parents failed to carry their burden and show that there would be any detriment at all. Although it was undisputed appellant maintained regular visitation with the children, he failed to produce any evidence, let alone compelling evidence, that the children would benefit from a continued relationship such that it would be detrimental to terminate his parental rights. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) Since contact between parent and child generally confers some benefit on a child, the parent must demonstrate more than pleasant visits or frequent and loving contact to show detriment. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954.)
Appellant nevertheless claims the court erred because there was insufficient evidence to support its finding that termination would not be detrimental to the children. Although the court here found termination would not be detrimental, its finding was not a prerequisite to the termination of parental rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 1321.) Instead, the law required the court to terminate appellant’s parental rights, unless he provided a compelling reason for the court to find that termination of parental rights would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.) The Legislature demands an express finding on the issue of detriment only when the trial court determines detriment exists and relies upon it to refuse to enter an otherwise proper termination order. (§ 366.26, subd. (c)(1)(B); In re A.A., supra, 167 Cal.App.4th at p. 1321.)
Otherwise, when a parent, such as appellant, fails to carry his burden and persuade the court to find a compelling case of detriment, we review the court’s decision for abuse of discretion, not for substantial evidence of a negative finding as he assumes. (In re A.A., supra, 167 Cal.App.4th at p. 1321, citing In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Having completed that review as summarized above, we conclude the court did not abuse its discretion in rejecting appellant’s detriment claim.
Not only did appellant fail to produce evidence that the children would be greatly harmed by termination, the record reveals affirmative evidence that visits were having a harmful affect on the children in terms of the aggressive behaviors they displayed toward other children coincidental to the visits. In addition, the court did not have to ignore the fact that appellant’s children were very young. Without termination, the children faced the prospect of tenuous placements for the bulk of their childhoods, which would run counter to their protected interests in permanence and stability.
DISPOSITION
The orders terminating parental rights are affirmed.