Opinion
F077430
10-05-2018
In re JOSHUA R., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. JOHNNY R., Defendant and Appellant.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD136771)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Before Levy, Acting P.J., Detjen, J. and DeSantos, J.
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Johnny R. is the father of now 22-month-old Joshua R. On April 26, 2018, the juvenile court terminated his parental rights as to Joshua (Welf. & Inst. Code, § 366.26) and he appealed. After reviewing the juvenile court record, Johnny's court-appointed counsel informed this court she could find no arguable issues to raise on Johnny's behalf. This court granted Johnny leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Statutory references are to the Welfare and Institutions Code.
Johnny submitted a letter but does not allege the juvenile court erred in terminating his parental rights.
We conclude Johnny failed to address the termination proceedings or set forth a good cause showing that any arguable issue of reversible error arose from the termination hearing. (Phoenix H., supra, 47 Cal.4th at p. 844.) Consequently, we dismiss the appeal.
PROCEDURAL AND FACTUAL SUMMARY
In November 2016, newborn Joshua was placed under protective custody by the Kern County Department of Social Services (department) after he tested positive for methamphetamine. His mother, K.B., admitted using methamphetamine throughout the pregnancy and the morning of the delivery. She also tested positive for methamphetamine while giving birth to a daughter, A.S., in 2012 and father's son, Johnny, in 2013. K.B. was offered voluntary family maintenance services but continued to use drugs. She and father engaged in domestic violence in March 2016 while she was pregnant with Joshua and holding Johnny. She sustained a bruised forehead and bloody nose. Father was 17 years her senior and a registered sex offender.
Father was no longer in a relationship with K.B. but was caring for then four-year-old A.S. and three-year-old Johnny at the time of Joshua's birth. His sex offense registration resulted from having a relationship with a 13-year-old when he was 19. He had an extensive criminal history, including convictions for possession of a firearm and a controlled substance, and was on probation for possession of narcotics. His probation officer was unaware if father was restricted from being around minors but said in general sex offender registrants could be around their birth children. The department took A.S. into protective custody and left Johnny in father's custody.
At the detention hearing in November 2016, father requested presumed father status and placement of Joshua. The court elevated his status to that of presumed father but denied him placement. The department placed Joshua and A.S. with A.S.'s great-grandmother.
In May 2017, father made an offer of proof at the dispositional hearing that he participated in the proceedings from the beginning and attended all visits available to him and the visits went well. The registration requirements stemmed from a 1990 criminal case when he was 19. He was convicted of the crime, placed on five years' probation and required to register. The court accepted his offer of proof. There was also evidence contained in the department's report that he was arrested in February 2017 for possession of methamphetamine. The court denied father reunification services under section 361.5, subdivision (b)(16) based on his sex offender status and its finding services would not inure to Joshua's best interest. The court continued its prior visitation order granting father twice weekly two-hour visits, ordered reunification services for K.B. and set the six-month review hearing for November 2017. The court ordered A.S returned to the custody of her father and terminated its dependency jurisdiction as to her.
Section 361.5, subdivision (b)(16) provides that reunification services need not be provided to a parent if the court finds by clear and convincing evidence the parent "has been required by the court to be registered on a sex offender registry under the federal Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Sec. 16913 (a)), as required in Section 106(b)(2)(B)(xvi)(VI) of the federal Child Abuse Prevention and Treatment Act (42 U.S.C. Sec. 5106a(2)(B)(xvi)(VI))."
The juvenile court is prohibited from ordering reunification services to a parent described by certain of the subparts of section 361.5, subdivision (b), including subdivision (b)(16), unless the court finds by clear and convincing evidence that reunification is in the best interest of the child.
Father did not challenge the juvenile court's denial of reunification services order by direct appeal.
In November 2017, the juvenile court terminated K.B.'s reunification services for failure to comply. K.B. did not appear at the hearing. Father's attorney advised the court that father continued to visit Joshua and was attending a domestic violence class required by the criminal court. He planned to file a modification petition (§ 388) requesting custody of Joshua. The court set a section 366.26 hearing for March 2018 and ordered father's visitation order to remain in effect. Neither parent challenged the setting order by filing an extraordinary writ petition. (Cal. Rules of Court, rule 8.452.)
The department recommended in its report for the section 366.26 hearing that the juvenile court terminate parental rights and free Joshua to be adopted by his foster parent. Joshua's foster parent was no longer A.S.'s great-grandmother as she died in early 2018. Her grandson assumed emergency placement of Joshua and initiated the adoption assessment. He expressed his commitment to providing Joshua a permanent home. K.B. visited sporadically with Joshua and her whereabouts were unknown. Father attended 79 of the 131 possible visits. The department opined Joshua's relationship with his parents was minimal and it would not be detrimental to terminate parental rights.
Father testified at the section 366.26 hearing in April 2018 that he and Johnny regularly visited Joshua. He claimed to have only missed two visits. Joshua responded to seeing him by running to him and calling him "da da." Father sang to him during visits and Joshua hopped around and shook his head. Johnny and Joshua loved each other and played by pushing each other around. Johnny made sure they had something to take to visits for Joshua. Father had four older children and grandchildren. He was participating in a domestic violence class as a perpetrator which he anticipated completing within 30 days. He also attended three Narcotics Anonymous meetings each week. He loved Joshua and believed it would be harmful to Joshua if his parental rights were terminated because of the relationship they established. He also believed it would be harmful to Johnny because he loved Joshua so much.
The juvenile court found Joshua was likely to be adopted and terminated parental rights. In doing so, the court found the beneficial parent-child and sibling relationship exceptions to adoption did not apply.
The beneficial parent-child relationship exception applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The sibling relationship exception applies when "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) --------
DISCUSSION
At a termination hearing, the juvenile court's focus is on whether it is likely the child will be adopted and if so, order termination of parental rights. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the child is likely to be adopted, the juvenile court must terminate parental rights unless the parent proves there is a compelling reason for finding that termination would be detrimental to the child under any of the exceptions to adoption listed in section 366.26, subdivision (c)(1)(B).
Father does not directly challenge the sufficiency of the evidence supporting the juvenile court's adoptability finding and termination order. Rather, he sets forth the authority under Phoenix H. which allowed him to file his letter brief. However, judging from his recitation of the facts, he seems to fault the juvenile court for relying too heavily on his sex registrant status in deciding not to place Joshua in his custody and not crediting the fact that he was successfully raising Johnny. He asserts that the department misrepresented the number of his missed visits, which he claims resulted in the termination of his parental rights.
Father's registrant status was the basis for the juvenile court's order denying him reunification services at the dispositional hearing. The court found the statute applied and reunification would not serve Joshua's best interest in light of father's subsequent criminal conduct. The court's denial of services order was appealable within 60 days of its issuance. Father did not appeal and the order is now final.
Further, the fact that father successfully maintained custody of Johnny does not mean the court should turn Joshua over to him as well. Children subject to dependency proceedings are differently situated from those who are not, even though they share the same parents. Here, the court assumed jurisdiction over Joshua because K.B. exposed him to methamphetamine and the court determined that father should not have custody of him or be afforded the opportunity to reunify with him.
Finally, with respect to father's claim the department underreported his visits, he was given the opportunity to testify concerning visitation. He testified that he only missed two visits. The juvenile court did not find his testimony credible; instead concluding even with updated visitation information that, at best, he made 65 percent of the visits. The regularity of father's visitation was, as he infers, an important consideration in the court's decision to terminate his parental rights because regular and consistent visitation is a required finding for the beneficial parent-child exception to adoption. The court, however, found that the exception did not apply, and the evidence supports the court's decision.
We conclude father failed to set forth a good cause showing that an arguable issue of reversible error exists and dismiss the appeal.
DISPOSITION
This appeal is dismissed.