Opinion
E075235
12-09-2020
In re J.M. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
Jacques A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. David R. Guardado and Michelle D. Blakemore, County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J270317, J270318, J270319) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Jacques A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. David R. Guardado and Michelle D. Blakemore, County Counsel, for Plaintiff and Respondent.
Defendant and appellant D.M. (father) appeals from an order terminating his parental rights over three of his children, arguing the juvenile court should have instead applied the beneficial parental relationship exception and selected legal guardianship as the permanent plan. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2017, plaintiff and respondent San Bernardino County Children and Family Services (CFS) received an immediate response referral regarding A.M., then nine months old, when her doctor noted suspicious bruising during an emergency room examination. A.M. had a two centimeter bruise on her right cheek and two bruises on her neck and upper left chin. A.M.'s mother (mother) stated that the bruises were caused by a new medication, but the doctor reported that bruising was not a common side effect of the medication. A social worker noted that the bruises were yellow, green, and purple in color. Mother denied that the bruises were caused by anyone hurting A.M. A.M. and her older siblings U.M. (age 7), H.M. (age 7), and J.M. (age 3) were detained.
Although the current appeal pertains only to the older siblings U.M., H.M., and J.M.—not A.M.—we describe the allegations regarding A.M. in detail to show why the juvenile court ultimately denied reunification services for all four children.
A doctor recommended that A.M. be taken to an emergency room for screening due to the suspicious bruising. While at the hospital, A.M. was discovered to have multiple, recent rib fractures. Also while at the hospital, A.M. suffered multiple seizures, was at one point "critically ill," and had to have fluid drained from her brain. A doctor reported that A.M. had "basically a stroke" in her frontal lobe and a stroke on her right occipital lobe. The doctor reported that he believed A.M. would have future disabilities from the "extensive" brain damage. The doctor also "found the injuries to be consistent with non-accidental trauma."
CFS filed a petition for A.M. pursuant to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (e) (severe physical abuse for child under five). For each of the older siblings, CFS filed petitions pursuant to section 300, subdivisions (b)(1) and (j) (abuse of sibling).
At a combined jurisdiction and disposition hearing on September 6, 2017, the juvenile court found by clear and convincing evidence that the section 300, subdivision (e) allegations regarding severe physical abuse of A.M. were true, noting that "the information given by the parents [for the injuries] has been inconsistent." The juvenile court also found true all other allegations regarding all four children. Because of the findings on the subdivision (e) allegations, the juvenile court denied reunification services to the parents for all four children. (See § 361.5, subd. (b)(5)-(b)(7).)
Although the juvenile court scheduled a hearing pursuant to section 366.26 at the September 6, 2017 jurisdiction and disposition hearing, a section 366.26 hearing was not held until June 22, 2020. This was primarily due to the search for prospective adoptive homes. A.M. was placed in a different foster home than her three siblings J.M., H.M. and U.M (hereinafter, children). The record indicates that in December 2018, the juvenile court set a section 366.26 hearing for A.M. only. The record does not reveal anything further about A.M.
At the September 2017 jurisdiction and disposition hearing, the juvenile court ordered weekly, two-hour visits with the children, supervised by CFS. In a January 2018 report, CFS stated that father had supervised visits with the children once a week and that he (along with mother) would redirect the children when necessary but "not follow through with their prompts." The juvenile court subsequently reduced visits to twice a month for two hours each. The parents continued to visit regularly, but after they began to argue in front of the children about father's new girlfriend, the juvenile court ordered in July 2018 that mother and father visit the children separately. The visits otherwise remained twice a month for two hours, supervised by CFS. A December 2018 report stated that father visited the children every other week and was appropriate with the children during the visits. A June 2019 report noted much the same: it stated that father "participate[d] in age appropriate activities with the children," "appear[ed] to show love and affection toward[] the children," and that "[t]he children report[ed] no concerns during visits with father."
CFS had a more critical evaluation of father's behavior with the children the following month. In July 2019, CFS informed the juvenile court that father requested to bring four relatives to a visit. CFS allowed father to bring the four relatives for the last 45 minutes of the next visit. Father, however, brought more than four people, including a "friend" the CFS worker did not recognize, and spent the entire visit discussing the case with one another in front of the children. Additionally, CFS informed the court that father "continue[d] to have inappropriate conversation in front of the children which negatively impact[ed] the children's emotional well-being causing them to feel sad, anxious and worried." CFS stated that the children "do not always want to attend the visits with either parent due to their constant discussions concerning sensitive topics and their lack of consideration towards the children's feelings." The juvenile court ordered weekly, two-hour supervised visits, prohibited third parties from joining future parental visits, and ordered CFS to terminate specific visits going forward if there was inappropriate conversation with the children.
In October 2019, the children were placed in a home in Ohio. Visits were reduced to once a month, and for a time the children were flown from Ohio to California for the supervised, two-hour visits. In a January 2020 report, CFS stated that, according to the prospective adoptive parents in Ohio, "the children tend to act out after having a visit" with the parents. The juvenile court subsequently continued the monthly, two-hour, supervised visits; it made clear, however, that CFS was under no obligation to fly the children to California for in-person visits, and it authorized visits to take place over video call as well.
As noted, the section 366.26 hearing took place on June 22, 2020. CFS's section 366.26 report stated that the prospective adoptive parents allowed the children to communicate with father (and mother) on a weekly basis. The prospective adoptive mother also reported, however, that the "weekly contact ha[d] been difficult on the family because of the frequency and the children not having a lot to talk about with their parents." The prospective adoptive mother stated that she would "likely reduce the frequency of the phone calls" given that the court had only ordered monthly visitation.
When asked about adoption, U.M. stated, "'I feel good about the adoption, I think it's going to work.'" H.M. stated, "'I think it's going to work because everybody gets along good.'" J.M. stated, "'I think it's going to be good because this is a really good family.'"
At the section 366.26 hearing, the juvenile court terminated father and mother's parental rights over the children and ordered that the children be placed for adoption. Father did not specifically request that the court apply the beneficial parental relationship exception in lieu of terminating parental rights. Instead, father sought to "make it very clear that he is against the termination of his parental rights" and that "he wants the Court to know that he very much still loves his children and if given the chance he would nonetheless still continue to seek to with [sic] them to try to reunify with them." The court nevertheless found that "there are no exceptions that apply."
II. ANALYSIS
At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for a dependent child. (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) "In order of preference the choices are: (1) terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a legal guardian; or (4) order long-term foster care." (Id. at p. 53.) "Whenever the court finds 'that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.'" (Ibid.)
To avoid termination of parental rights, a parent must prove that one or more statutory exceptions apply. (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i), which may apply 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).) "This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Anthony B., supra, 239 Cal.App.4th at p. 395.) These are sometimes referred to as the first two prongs of the exception's test. Even after a parent proves the existence of a beneficial parental relationship, however, the juvenile court must also find that such relationship constitutes "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) That is sometimes referred to as the third prong of the test.
In determining the applicability of the parental relationship exception, the court considers "'"[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."'" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) "A showing the child derives some benefit from the relationship is not sufficient ground to depart from the statutory preference for adoption." (In re Breanna S. (2017) 8 Cal.App.5th 636, 646 (Breanna S.).) Furthermore, evidence of frequent and loving contact is not enough. (Ibid.) The parent must also show he or she occupies "'a parental role'" in the child's life. (Ibid.) "The relationship that gives rise to this exception to the statutory preference for adoption 'characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621.)
Our review of the juvenile court's ruling is deferential, incorporating both the substantial evidence and abuse of discretion standards. We generally review the juvenile court's finding as to the existence of a beneficial parental relationship for substantial evidence. (See Breanna S., supra, 8 Cal.App.5th at p. 647.) But where the juvenile court found the parent failed to carry his or her burden of proof, the question is more properly stated not in terms of substantial evidence, but rather "whether the [appellant parent's] evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) We apply the abuse of discretion standard to the third prong of the test, i.e., the juvenile court's determination of whether the benefit to the child from preserving parental rights is sufficiently compelling to outweigh the termination of those rights. (See Breanna S., supra, 8 Cal.App.5th at p. 647.) We will not reverse the juvenile court's order as an abuse of discretion unless the court made an arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Our Supreme Court has taken up the issue of whether this hybrid standard of review is correct in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. Our conclusions would be the same under any of the potentially applicable standards, all of which are deferential to the conclusions of the juvenile court. --------
We begin by addressing CFS's claim that father forfeited the ability to raise the applicability of the exception on appeal due to his failure to raise the issue in juvenile court. It is true that father did not raise the beneficial parental relationship exception at the section 366.26 hearing. However, the juvenile court nevertheless found that "there are no exceptions that apply," which presumably refers to the beneficial parental relationship exception as well as other possible ones. Moreover, this court has discretion to consider forfeited claims (see In re S.B. (2004) 32 Cal.4th 1287, 1293), and we may additionally consider the claim to forestall a later claim of ineffective assistance of counsel (see In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250). For each of these reasons, we address the merits of father's claim.
Father has not demonstrated that the trial court erred under any deferential standard of review. Although father "maintained regular visitation" with all three children (In re Anthony B., supra, 239 Cal.App.4th at p. 395), the record does not show that father occupies "'a parental role'" in their lives (Breanna S., supra, 8 Cal.App.5th at p. 646). To the contrary, it discloses that the children do not have "a lot to talk about" with father, and that they would sometimes "feel sad, anxious and worried" after visits. The children would also sometimes not want to attend visits with father due to both parents' "constant discussions concerning sensitive topics and their lack of consideration towards the children's feelings." Most telling here is that although nearly three years passed between the September 2017 jurisdiction and disposition hearing and the June 2020 section 366.26 hearing, at no point during that extended period did the relationship between father and the children progress to a point where the court believed that unsupervised or extended visits were appropriate. Rather, visits consistently ranged from monthly to weekly, for two hours each, supervised. None of these indications show that, under the third prong of the exception's test, the benefit to the children from preserving father's parental rights is sufficiently compelling to outweigh terminating them, even if we were to presume that a beneficial parental relationship exists.
There is little reason to doubt from this record that father seeks to maintain a positive and loving relationship with the children. His regular visits over nearly three years suggest a strong desire to reunify. However, given the grave allegations surrounding A.M. and the resulting consequence that father was denied reunification services, we must consider his appeal not by prioritizing his interest in reunifying with the children, but by prioritizing the children's interest in a stable home. This is because "[b]y the time of a section 366.26 hearing, the parent's interest in reunification is no longer an issue and the child's interest in a stable and permanent placement is paramount. [Citations.] 'In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.' [Citation.] The child has a compelling right 'to [have] a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child.'" (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
Here, the prospective adoptive parents are fulfilling the children's developmental and emotional needs, as shown in part by the children's unanimous view in favor of adoption. Father's actions from September 2017 to June 2020, positive though they might be, did not foster or develop a relationship with the children that justifies disrupting the stability the prospective adoptive parents can offer the children. Particularly when the court's decision is reviewed deferentially, we agree with the juvenile court and conclude that the beneficial parental relationship exception to the termination of parental rights does not apply.
III. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.