Opinion
F086564
10-27-2023
In re D.C., a Person Coming Under the Juvenile Court Law. v. M.C., Defendant and Appellant. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County Super. Ct. No. 22CEJ300008-1 Mary Dolas, Judge.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P. J., Pena, J. and Snauffer, J.
OPINION
THE COURT [*]
A.B. (mother) and M.C. (father) are the parents of daughter D.C. (born January 2022). Father appeals the termination of his parental rights pursuant to Welfare and Institutions Code section 366.26. He argues the juvenile court erred in failing to apply the parental-benefit exception to adoption. We affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Referral, Petition, and Detention
In January 2022, the Fresno County Department of Social Services (department) received a referral on behalf of D.C. shortly after she was born, alleging general neglect by mother and father. Mother had two children in foster care and her reunification services were due to terminate the following week. She reported she had unsuccessfully completed three rounds of drug treatment.
On January 10, 2022, the department filed a petition on behalf of D.C. pursuant to section 300, subdivision (b)(1) (failure to protect), alleging mother had a substance abuse problem with methamphetamine that negatively affected her ability to care for her. The petition alleged father also had a substance abuse problem. Although he denied substance abuse, he had an extensive criminal history related to possession of controlled substances. Additionally, father had failed to provide proof he had baby supplies and an appropriate home for D.C. On January 19, 2022, D.C. was detained and placed in a licensed foster home.
On January 24, 2022, the juvenile court held a detention hearing and found a prima facie case had been established and ordered D.C. detained. The court ordered the department to offer mother and father reunification services and ordered they participate in supervised visits twice a week for one hour.
B. Jurisdiction and Disposition
In its jurisdiction and disposition report, the department recommended the allegations in an amended petition be found true, father be ordered to participate in reunification services, and mother be bypassed for reunification services. D.C. was still in the same foster home. The department identified father's substance abuse as the problem requiring intervention. The department stated father had an extensive criminal history and upcoming court dates related to the possession of a controlled substance device. The department concluded D.C.'s safety would be at substantial risk if returned to father's care; however, it noted father ultimately acknowledged his substance abuse history and expressed a desire to reunify with D.C.
In regard to father's compliance with services, the department stated he had only completed the domestic violence inventory and the recommendation for treatment was still pending. Father had been put on a waiting list for a parenting class, had not completed substance abuse or mental health assessments, and was dropped from random drug testing for having more than five no shows. As for visits, father had begun supervised visits at a visitation facility. Although father had not made substantial progress in services, the department opined the prognosis for successful reunification was good if father participated in services and engaged in his case plan.
On June 21, 2022, the juvenile court held a contested jurisdiction and disposition hearing. The allegations in an amended petition were found true, D.C. was adjudged a dependent of the court and removed from parental custody, and mother and father were ordered to participate in reunification services and supervised visitation twice a week for one hour. Reunification services were to include parenting classes, a substance abuse evaluation and recommended treatment, a mental health evaluation and recommended treatment, a domestic violence inventory and recommended treatment, and random drug testing. The court set a six-month status review hearing.
C. Six-Month Status Review
In its six-month status review report, the department recommended mother and father's reunification services be terminated and that a section 366.26 hearing be set. D.C. was still in the same foster home. Father had not been participating in services. He was dropped from his parenting class due to lack of attendance and had not begun the recommended treatment for domestic violence, which consisted of a child abuse intervention program. He participated in a substance abuse assessment and was recommended to participate in an outpatient program, but he had not started treatment. Additionally, he had not completed a mental health assessment and had not begun random drug testing. Accordingly, the department opined it was unlikely he would make significant progress if granted more time to participate in services.
In regard to visitation, father had been participating in supervised visits. Both he and mother had been inconsistent at times, but had maintained visits throughout the proceedings. Father and the care provider stated the visits went well and there had not been major concerns as to D.C.'s behavior after the visits.
On December 5, 2022, the juvenile court held a six-month status review hearing and found both mother and father had made minimal progress in alleviating and mitigating the causes of D.C.'s removal and terminated their reunification services. The court set a section 366.26 hearing.
In its section 366.26 report, the department recommended mother and father's parental rights be terminated and selecting a permanent plan of adoption for D.C. D.C. was still in the same foster home. The care provider was meeting all of her physical, social, and emotional needs, and she appeared to be thriving. During home visits, she presented happy, safe, and comfortable around the care provider. Father had still been participating in supervised visits. He had attended a total of 45 out of 70 visits. A social worker supervised three visits. D.C. enjoyed her visits with father. Father attempted to comfort and play with D.C., and he demonstrated he could nurture her. He was attentive to her during visits. However, D.C. sometimes became fussy when transitioning from mother to father. At the end of visits, D.C. would transition back to the care provider without hesitation and did not cry or exhibit any signs of distress after leaving father's presence.
The report indicated D.C. was generally adoptable due to her age, good health, and minor developmental concerns. She was also specifically adoptable because her care provider wished to adopt her. D.C. had been in the care provider's care since she was 13 days old, and she was now one year old. The department stated it would not be detrimental to D.C. to terminate parental rights. The care provider reported D.C. would experience an upset stomach and diarrhea after visits and would struggle with sleep.
On May 10, 2023, the juvenile court held a contested section 366.26 hearing. Father testified that his last visit with D.C. was in April 2022. She was excited to see him. They dyed eggs, dressed up for Easter, and ate snacks. He said he and mother would provide D.C. with food, clothing, and anything else she might need. Generally, at the end of visits she appeared confused as to why they were separating. During many of the visits, either he or mother would hold her and she would fall asleep in their arms.
Father's attorney argued the juvenile court should find the parental-benefit exception applicable. The court found D.C. to be generally and specifically adoptable. The court then addressed the parental-benefit exception. The court found that father had shown he had regular and consistent visits with D.C., but did not find that there was a substantial positive emotional attachment between father and D.C. The court stated, "And I find that the parents have identified a friendly, familiar relationship with the child but they've not been able to provide sufficient evidence for the [c]ourt to find a substantial positive emotional attachment and/or that detriment of severing that whatever relationship does exist would somehow outweigh the benefits of adoption." Finding the exception inapplicable, the court ordered adoption as the permanent plan.
On July 7, 2023, father filed a notice of appeal.
DISCUSSION
I. Parental-Benefit Exception
A. Legal Principles
"If the court cannot safely return a dependent child to a parent's custody within statutory time limits, the court must set a hearing under section 366.26." (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).) "[T]he goal at the section 366.26 hearing is 'specifically ... to select and implement a permanent plan for the child.'" (Ibid.) "At [the] . . . hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care." (In re S.B. (2008) 164 Cal.App.4th 289, 296.) "According to [the] procedure [under section 366.26], the court must first determine by clear and convincing evidence whether the child is likely to be adopted. [Citation.] If so, and if the court finds that there has been a previous determination that reunification services be terminated, then the court shall terminate parental rights to allow for adoption. [Citation.] But if the parent shows that termination would be detrimental to the child for at least one specifically enumerated reason, the court should decline to terminate parental rights and select another permanent plan." (Caden C., at pp. 630-631.) One exception to adoption is the parental-benefit exception, which requires the parent to establish, by a preponderance of the evidence, "that the parent has regularly visited with the child, that the child would benefit from continuing the relationship, and that terminating the relationship would be detrimental to the child." (Id. at p. 629; § 366.26, subd. (c)(1)(B)(i).)
"The first element-regular visitation and contact-is straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.' [Citation.] Visits and contact 'continue[] or develop[] a significant, positive, emotional attachment from child to parent.' [Citation.] Courts should consider in that light whether parents 'maintained regular visitation and contact with the child' (§ 366.26, subd. (c)(1)(B)(i)) but certainly not to punish parents or reward them for good behavior in visiting or maintaining contact-here, as throughout, the focus is on the best interests of the child." (Caden C., supra, 11 Cal.5th at p. 632.)
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).) Again here, the focus is the child. And the 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.'" (Caden C., supra, 11 Cal.5th at p. 632.) "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents. [Citations.] Doing so properly focuses the inquiry on the child . . .." (Ibid.)
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.) The court must determine "how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life." (Ibid.) "[T]he effects [on the child] might include emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. Yet . . . a new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Ibid.)
"When the relationship with a parent is so important to the child that the security and stability of a new home wouldn't outweigh its loss, termination would be 'detrimental to the child due to' the child's beneficial relationship with a parent." (Caden C., supra, 11 Cal.5th at pp. 633-634.) "When it weighs whether termination would be detrimental, the court is not comparing the parent's attributes as custodial caregiver relative to those of any potential adoptive parent(s)," and it "should not look to whether the parent can provide a home for the child." (Id. at p. 634.) "Even where it may never make sense to permit the child to live with the parent, termination may be detrimental." (Ibid.) "[T]he section 366.26 hearing is decidedly not a contest of who would be the better custodial caregiver." (Ibid.)
Moreover, "[a] parent's continued struggles with the issues leading to dependency are not a categorical bar to applying the exception." (Caden C., supra, 11 Cal.5th at p. 637.) "[W]hen the court holds a section 366.26 hearing, it all but presupposes that the parent has not been successful in maintaining the reunification plan meant to address the problems leading to dependency." (Ibid.) "The parental-benefit exception can therefore only apply when the parent has presumptively not made sufficient progress in addressing the problems that led to dependency." (Ibid.) Thus, "[p]arents need not show that they are 'actively involved in maintaining their sobriety or complying substantially with their case plan' [citation] to establish the exception." (Ibid.) However, lack of progress is not irrelevant. "A parent's struggles may mean that interaction between parent and child at least sometimes has a' "negative" effect' on the child." (Ibid.) "Conversely, a parent who gains greater understanding of herself and her children's needs through treatment may be in a better position to ensure that her interactions with the children have a' "positive" ... effect' on them." (Id. at pp. 637-638.) "In both scenarios, the parent's struggles speak to the benefit (or lack thereof) of continuing the relationship and are relevant to that extent." (Id. at p. 638.) They "may also be relevant to the detriment from terminating parental rights." (Ibid.)
B. Standard of Review
The first two elements are reviewed for substantial evidence. (Caden C., supra, 11 Cal.5th at p. 639.) "In reviewing factual determinations for substantial evidence, a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if ... supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Id. at p. 640.) The third element is reviewed for abuse of discretion. (Ibid.) A court abuses its discretion only when it" 'has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].'" (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
C. Analysis
In order to establish the parental-benefit exception, father was required to show, by a preponderance of the evidence, that (1) he regularly visited D.C., (2) D.C. would benefit from continuing the relationship, and (3) terminating the relationship would be detrimental to D.C. (Caden C., supra, 11 Cal.5th at p. 629; § 366.26, subd. (c)(1)(B)(i).) Here, it was undisputed father satisfied the first element-that he regularly visited D.C. Therefore, the question is whether substantial evidence supports the juvenile court's findings that D.C. would not benefit from continuing the relationship and terminating the relationship would not be detrimental to her.
To successfully show a beneficial relationship, a parent "must show that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship." (Caden C., supra, 11 Cal.5th at p. 636.) Whether continuing a relationship with the parent is in a child's best interest depends on many factors: the age of the child, the portion of the child's life spent in the parent's custody and the effect interaction with the parent has on the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Courts can "consider how children feel about, interact with, look to, or talk about their parents [citations]," and can rely on observations of others who have observed visitation to formulate conclusions. (Caden C., at pp. 632-633.) Here, D.C. was removed from parental custody when she was 13 days old. By the time of the section 366.26 hearing, she had been out of father's care for approximately 15 months. Thus, she had spent nearly her entire life out of father's care. Those who observed visits between father and D.C. described the visits as appropriate. D.C. appeared to enjoy the visits. Father demonstrated an ability to nurture her, and he would engage with her by playing and reading to her. He was attentive to her by changing her, feeding her, and ensuring she was safe. On the other hand, D.C. did not show any signs of distress when separating from father at the conclusion of visits, and she would sometimes fuss when handed over to father. Additionally, aside from the fact that D.C. had been out of father's care nearly her whole life, father never progressed past supervised visits, which prevented them from developing a substantial, positive, emotional attachment. As the juvenile court stated, father's relationship with D.C. was merely a friendly, familiar one.
Father argues that through his frequent and consistent visits with D.C., they developed a relationship that was strongly beneficial to her. We note that "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, "[e]vidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.)" 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.'" (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) We conclude, the juvenile court did not err in finding that father and D.C.'s relationship did not provide the type of benefit to D.C. necessary to establish the exception.
Next, in assessing whether termination would be detrimental to the child, a court must decide whether the harm from severing the parental relationship outweighs the benefit to the child of placement in a new adoptive home. "By making this decision, the trial court determines whether terminating parental rights serves the child's best interests." (Caden C., supra, 11 Cal.5th at p. 632.) Here, D.C.'s care provider who had cared for her nearly her entire life, was committed to adopting her. D.C. did not exhibit any distress transitioning back to the care provider after visits with father. Father does not point to any specific evidence showing it would be detrimental to D.C. to sever their relationship, and we find none.
Accordingly, the record supports the juvenile court's finding that father failed to establish the parental-benefit exception.
DISPOSITION
The juvenile court's order is affirmed.