Opinion
G062716
11-07-2023
In re A.O., A Person Coming Under the Juvenile Court Law. v. R.O. et al., Defendants and Appellants. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, R.O. Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant, J.G. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 21DP1386 Isabel Apkarian, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant, R.O.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant, J.G.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
R.O. (Father) and J.G. (Mother) appeal from an order terminating their parental rights over their now two-year-old son, A.O. (Minor), at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). Father contends the Orange County juvenile court (the court) should have applied the parental-benefit exception to termination of his parental rights under section 366.26, subdivision (c)(1)(B)(i). Mother joins in and adopts Father's arguments.
All further statutory references are to the Welfare and Institutions Code.
We disagree. Mother and Father failed to establish the parental-benefit exception applies to this case. We accordingly affirm the postjudgment order.
FACTS
Detention
In April 2021, Minor was taken into protective custody when he was two months old. A few days later, the San Bernardino County Children and Family Services (CFS) filed a petition pursuant to section 300, subdivisions (b)(1). The petition alleged, inter alia, that Mother had an untreated mental illness and was diagnosed with bipolar disorder, obsessive compulsive disorder, and anxiety. She accordingly was prone to aggression, mood swings, and agitation. The petition also alleged Mother had an untreated substance abuse problem and admitted using drugs during her pregnancy. When Minor was born, Mother and Minor both tested positive for amphetamines. While under the influence of alcohol, Mother also engaged in domestic violence in Minor's presence. For example, the petition alleged Mother hit Father while Minor was in his arms and caused Minor's crib to be overturned. As to Father, the petition alleged he knew or reasonably should have known of Mother's substance abuse issues and failed to protect Minor. Father also provided Mother with alcohol even though Mother was in substance abuse treatment.
After a detention hearing, the San Bernardino County Juvenile Court detained Minor and authorized supervised visitation for Mother and Father. Minor was initially placed in a foster family agency home. At Father and Mother's request, Minor was later placed with the paternal aunt and her husband in April 2021.
Jurisdiction/Disposition
Prior to the jurisdiction/disposition hearing, CFS recommended the court sustain the petition, declare Minor to be a dependent of the court, and provide reunification services to Mother and Father. In its report, CFS provided further details about Mother's mental health issues, substance abuse, and domestic violence incident with Father. Father told CFS he did not know about Mother's substance abuse issues before Minor was born. According to the report, Father indicated he smoked marijuana occasionally but was willing and able to abstain. He also reported having tickets on his criminal record for marijuana use and a conviction for domestic violence in a prior relationship, which required him to complete a 52-week domestic violence program.
The report further noted both parents were cooperative, open to services, honest about their own issues, and proactive in seeking services. They were separated at the time of the report and both acknowledged their relationship was unhealthy. The report concluded Mother and Father would benefit from services and would likely reunify with Minor.
At the jurisdictional hearing, the San Bernardino County Juvenile Court found the allegations in the petition true, bringing Minor within the provisions of section 300, subdivision (b). The juvenile court declared Minor a dependent, removed him from his parents' custody, and ordered reunification services. With respect to visitation, the juvenile court authorized one two-hour supervised visit per week.
First Reunification Period: April 2021 - October 2021
Mother's case plan required her to comply with psychological treatment, general counseling, drug testing and treatment, and a 12-step program. Mother completed individual therapy and parenting education. She had negative and positive drug tests. As to her mental health, she reported only taking melatonin for sleep.
Father's case plan required him to participate in general counseling, drug testing, and treatment if he tested positive. He completed individual therapy and parenting education. He also had negative drug tests and a couple of "no shows."
Regarding visitation, the caregiver supervised some visits in the City of Lompoc while a social worker supervised others. During the visits supervised by the social worker, Mother and Father brought books, clothes, bottles, and other items for Minor. CFS's report noted Mother and Father visit separately with Minor. During Father's visits, Minor would fall asleep after an hour. When Mother visited with Minor, she fed, read, and played with Minor. CFS's report also noted Mother and Father missed the visits in Lompoc "on a consistent basis." They missed two visits due to "car issues" and missed another visit because Father "did not feel comfortable doing a visit at Dave and Busters."
Given Mother and Father's moderate progress on their case plan, CFS recommended a second period of reunification services. At the six-month status review hearing in October 2021, the San Bernardino County Juvenile Court adopted CFS's recommendations and continued reunification services for another six months.
Second Reunification Period: October 2021 - June 2022
In December 2021, the case was transferred to Orange County. As of April 2022, the Orange County Social Services Agency (SSA) reported Mother and Father's cooperation with their case plans was minimal.
Mother participated in a "Personal Empowerment Program" and completed five out of 10 classes. She also completed an anger management intake but missed the first class. With respect to a drug treatment program, Mother did not consistently attend and was terminated from the program in April 2022 due to lack of participation. She was required to drug test 25 times during this reporting period and had 18 "no shows," two positive tests for alcohol, two positive tests for amphetamines/methamphetamines, two negative tests, and one test where she was unable to produce.
Father participated in a "Personal Empowerment Program" and missed one class. He also enrolled in anger management counseling and completed one class. While Father was required to drug test 26 times during this reporting period, he had 20 "no shows," one positive test for alcohol, one positive test for amphetamines/methamphetamines, one negative test, and three tests where he was unable to produce.
Regarding visitation, Mother and Father had eight hours per week of supervised visitation during this reporting period. SSA reported Mother and Father visited with Minor alternating between Lompoc and Orange County. They were often late to their visits in Lompoc and missed some of those visits. Mother and Father brought necessary supplies and toys for the visits, attentively engaged with Minor, read books to him, fed him, soothed him, and changed diapers. The visits typically went well, but one visit ended early because Mother was yelling and arguing. They also video chatted with Minor daily and missed some calls. At an April 2022 visit in the parents' hotel room, the caregiver found an empty alcoholic beverage can in the sink. Mother and Father complained the caregiver treated Mother unfairly, did not return all of Mother's calls, cut some visits short, and brought her own children to the visits.
Overall, SSA reported it was concerned Mother and Father would make "unhealthy relationship choices" and continue to engage in domestic violence in Minor's presence. SSA reported the police responded to a family disturbance at the parents' home in December 2021. Mother called the police and reported that Father pushed her and broke her headphones. Mother and Father also were heard arguing and using profanity on telephone calls with the caregiver in February 2022. In a message Father left for SSA, the social worker could hear Mother and Father arguing. Mother claimed to have moved out of her shared apartment with Father in February 2022. SSA further reported it was concerned Mother and Father's unresolved substance abuse issues would place Minor at risk of physical harm or emotional abuse.
As to the caregivers, SSA reported Minor remained in the care of the paternal aunt and uncle who cared for Minor's needs on a consistent basis and were willing to adopt Minor if Mother and Father could not reunify with him. Minor appeared comfortable in the caregivers' home and called them "mama" and "dada."
The court scheduled a 12-month review hearing for June 2022. According to SSA's addendum report, Mother and Father were on track to complete anger management classes. Father also completed a "Personal Empowerment Program" while Mother was on track to complete the program. But they both missed several drug tests. With respect to visitation, they continued to visit with Minor alternating weekends in Lompoc and Orange County. The supervising staff in Orange County praised Mother and Father for coming prepared and spending time with Minor. But Mother and Father continued to have issues with maintaining the visitation schedule set by the caregiver in Lompoc. The caregiver reported they were often late or tried to change the schedule without timely notice. SSA recommended terminating reunification services and scheduling a .26 hearing.
At the 12-month review hearing, the court continued to authorize reunification services and scheduled an 18-month review hearing.
Third Reunification Period: June 2022 - December 2022
SSA's report for the 18-month review hearing again recommended terminating Father and Mother's reunification services and scheduling a .26 hearing. Mother and Father were homeless during this reporting period and slept most nights in their car since June 2022. In July 2022, SSA received a video message from Mother where Father is seen lunging at Mother with his hand "outstretched toward the recording phone." Mother later reported they were arguing, and Father hit her and dragged her out of the car. Father denied these accusations. A few days later, Mother and Father reported they were back together again.
In September 2022, Mother and Father were involved in another domestic violence incident. They had received motel vouchers and were staying in various motels at the time. A motel employee called the police after seeing Mother and Father arguing and throwing items out of a motel room. Mother told the police Father had pushed her but later recanted her statement. Father denied any physical altercation. In November 2022, Mother and Father argued with each other during a phone call with SSA.
Mother had five negative drug tests but missed all other drug tests during this reporting period. Father likewise had negative tests but missed many others. He also tested positive on two occasions, including one when he was prescribed pain medication.
Regarding visitation, Mother and Father were provided gas cards to help them travel to Lompoc for visits. But they missed some visits or were late due to car trouble, illness, and work. In October 2022, Father reported he and Mother were living in their car.
In December 2022, the court terminated Mother and Father's reunification services and set a .26 hearing. The court later noted Mother and Father could participate in "soft .26 programs," meaning that although the court terminated reunification services and set a .26 hearing, SSA was authorized to continue funding services. The hope was that Mother and Father would participate in the services in an attempt to reunify with Minor.
Post Reunification Period: December 2022 - June 2023
In its section 366.26 reports, SSA noted it continued to provide referrals for services, including substance abuse treatment and counseling. Mother and Father did not participate in substance abuse treatment and generally refused to complete drug testing. Father also had one positive drug test along with a few negative tests, and Mother had two positive and one negative drug test. Mother refused any referrals, but Father signed a referral for individual therapy.
With respect to visits, Mother and Father continued to visit with Minor, alternating between Lompoc and Orange County. Although they were given gas cards to help with the travel, they missed some visits. But they had no issues with their visits in Orange County, which were generally positive. During one visit in April 2023, the caregiver ended a visit early because Mother and Father were arguing.
SSA further noted Mother and Father could not provide a stable environment for Minor. They lived in their vehicle, various shelters, or motels, and they continued to engage in arguments and fights. In March 2023, Father was asked to leave the homeless shelter where they were staying due to a domestic violence incident.
Finally, SSA reported Minor was comfortable with his prospective adoptive parents (the paternal aunt and her husband). Minor sought their attention and affection, and the prospective adoptive parents showed "great affection and care" for Minor. Minor seemed happy living with them.
.26 Hearing
At the .26 hearing, Mother's counsel requested Mother be given more time and asked the court to consider legal guardianship. Mother's counsel also noted Mother believed Minor was doing well with the caregivers and wanted him to remain there "as he is bonded to them." Father's counsel argued the court should apply the "parental bond exception" to termination of parental rights and order legal guardianship.
The court found Minor adoptable and terminated parental rights. The court also found the parental-benefit exception did not apply. In reaching this conclusion, the court relied on In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) and discussed the three elements a parent must prove to establish the parental-benefit exception. First, the court acknowledged Mother and Father maintained regular visitation and contact with Minor. Second, the court found Mother and Father had not shown Minor would benefit from continuing a relationship with them based on his attachment to them. The court emphasized it had to consider Minor's age when he was placed in foster care and the portion of his life spent outside of the parents' custody, which was all of his life. Finally, the court held there was no evidence "that shows that severing this relationship would harm [Minor]." The court added it did not find "there [was] a substantial, positive, emotional attachment to either parent." Mother and Father timely appealed.
DISCUSSION
Father contends the court should have applied the parental-benefit exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) Mother joins in and adopts Father's arguments. For the reasons discussed infra, the court did not err. Mother and Father failed to meet their burden of establishing the exception.
Applicable Law and Standard of Review
Once reunification services have ended, the juvenile court is required to terminate parental rights unless an exception to adoption applies. (§ 366.26, subd. (c)(1).) One of those exceptions is the parental-benefit exception. (Id., subd. (c)(1)(B)(i).) Under the statutory exception, the court must terminate parental rights unless it "finds a compelling reason for determining that termination would be detrimental to the child" because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Ibid.)
In Caden C., supra, 11 Cal.5th 614, our Supreme Court identified three elements a parent must prove to establish the parental-benefit exception: "(1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Id. at p. 631.) The first two elements are reviewed for substantial evidence. (Id. at p. 639.) The third element is reviewed for abuse of discretion. (Id. at p. 640.) To the extent Father challenges the court's findings regarding his failure of proof, we determine whether the evidence compels a finding in his favor as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) We address each of the three elements in turn below.
The Parental Benefit Exception Does Not Apply
A. Regular Visitation and Contact
As the Caden C. court observed, the "regular visitation and contact" element is "straightforward." (Caden C., supra, 11 Cal.5th at p. 632.) "The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.'" (Ibid.) Courts accordingly should consider whether parents "'maintained regular visitation and contact with the child.'" (Ibid.)
Here, the SSA reports suggest Father and Mother had positive visits with Minor, especially when the visits occurred in Orange County. They brought necessary supplies and toys for the visits, actively engaged with Minor, soothed him, and changed diapers. They missed some visits in Lompoc due to various issues, and a few visits ended early because Mother and Father were arguing. Given these facts, substantial evidence supports the court's finding that Father and Mother maintained regular visitation and contact with Minor. SSA also does not appear to dispute this finding.
B. Beneficial Relationship
As to the benefit element, the Caden C. court noted "courts assess whether 'the child would benefit from continuing the relationship.'" (Caden C., supra, 11 Cal.5th at p. 632.) The benefit showing requires proof of "a substantial, positive, emotional attachment to the parent." (Id. at p. 636.) "[T]he relationship may be shaped by a slew of factors, such as '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'" (Id. at p. 632.) Courts "consider how children feel about, interact with, look to, or talk about their parents." (Ibid.)
In this case, Minor had been out of Mother and Father's care for most of his life. He was taken into protective custody when he was only two months old. At the time of the .26 hearing, Minor was two years old and had spent most of his life with his paternal aunt and her husband, who he called "mama" and "dada." While Mother and Father undoubtedly had positive interactions with Minor during their visits and we do not discount that they cared for Minor's needs, a beneficial relationship requires "more than the incidental benefit a child gains from any amount of positive contact with" the parent in visits. (In re Katherine J. (2022) 75 Cal.App.5th 303, 318.)
C. Detriment Resulting from Termination of Relationship
With respect to the third element, a court "must decide whether the harm from severing the child's relationship with the parent outweighs the benefit to the child of placement in a new adoptive home." (Caden C., supra, 11 Cal.5th at p. 632.) "By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Ibid.)
Because Mother and Father failed to carry their burden to establish a substantial, positive emotional attachment, it appears there would be minimal harm from severing Minor's relationship with them. (In re A.L. (2022) 73 Cal.App.5th 1131, 1158 [considering the strength and quality of the parent's relationship with the child].) Father's sister cared for Minor for most of his life, and Minor was happy, healthy, and thriving with her. Indeed, Minor considered the paternal aunt and uncle to be parental figures. Minor also had no difficulty separating from Mother and Father after visits. Counsel for SSA and Minor further opined that the benefit Minor received from Mother and Father was outweighed by being in a home with the adoptive family. While Father suggests legal guardianship may have been the most appropriate plan for Minor, a court may choose a permanent plan "'other than the norm, which remains adoption'" only "'in exceptional circumstances.'" (Caden C., supra, 11 Cal.5th at p. 631.) Considering the record as a whole, the evidence supports a finding that Minor would be best served by adoption. We cannot find the court abused its discretion.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR GOETHALS, ACTING P. J., MOTOIKE, J.