Opinion
A157090
01-27-2020
In re R.B., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. P.B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV130045)
This is an appeal from the juvenile court's findings and orders terminating the parental rights of defendant P.B. (father) to his daughter R.B., born in 2013, and adopting a permanent plan of adoption. Father challenges these findings on the ground that the court erred by declining to apply two statutory exceptions to termination to his case—the beneficial parent relationship exception and the sibling relationship exception (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), (v)). We affirm.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In March of 2013, R.B. was detained by plaintiff Humboldt County Department of Social Services (department) after testing positive for methamphetamine shortly after her premature birth. Jurisdiction was taken on R.B. pursuant to section 300, subdivision (b), failure to protect, based on mother's unaddressed substance abuse problem and father's inability or unwillingness to protect R.B. adequately from mother's harmful behavior. Father received reunification services from the department, and R.B. was eventually returned to his care under a family maintenance plan. Father successfully completed his case plan, was granted sole physical and legal custody of R.B. (mother was no longer in the home), and R.B.'s first dependency was terminated on August 14, 2014.
Mother is not party to this appeal and is discussed only when relevant to father's appeal.
Once the case was closed, father immediately reunited with mother and allowed her back into the home. On March 27, 2015, the department filed a nondetained petition under section 300, subdivision (j), abuse of sibling, alleging R.B. was at substantial risk of harm because her younger sister, C.B., was recently born premature and her birth records reflected mother had used methamphetamine and alcohol during her pregnancy. In addition, C.B. was hospitalized two weeks after her birth for failure to thrive, bronchiolitis, pneumonia and a heart murmur. On June 2, 2015, the juvenile court sustained the allegations in the petition and assumed jurisdiction over R.B. a second time.
On July 6, 2015, the department filed a supplemental petition pursuant to section 387 alleging that R.B. came within the court's jurisdiction under section 300, subdivisions (b) (failure to protect) and (j) (abuse of a sibling). This supplemental petition alleged mother and father had been involved in two recent incidents of domestic violence, both of which involved mother punching father in front of one or both of their children while under the influence of alcohol. While father was visibly injured after the second incident, he denied to law enforcement knowing the identity of his attacker. R.B. was removed from her parents' care following a detention hearing on July 7, 2015.
The report prepared by the department contained additional information about these incidents as well as mother's longstanding and substantial abuse of methamphetamine and alcohol. Father admitted to a social worker that mother was drinking and had punched him on multiple occasions, causing visible injuries. However, he did not want mother to be arrested. Father also admitted R.B.'s half brother, J.B., was scared of mother and had reported that she often pinches him. Mother, in turn, reported that father had physically harmed her, putting his knee on her neck. Mother denied alcohol use but refused the social worker's request to take a test that day. The department, concerned about father's ability to protect R.B. from mother's substance abuse and abusive behavior, recommended services for both parents, including substance abuse and mental health programs, anger management services and domestic violence counseling.
On July 27, 2015, the juvenile court sustained the allegations in the supplemental petition, finding that remaining under father's care was contrary to R.B.'s welfare. A dispositional hearing was then held on August 20, September 8 and September 29, 2015, after which the court declared R.B. a dependent, found out-of-home placement necessary and appropriate, and ordered reunification services for father but not mother. In doing so, the court found that father had made minimal progress on his case plan objectives and that minor remained at risk of continued physical and emotional harm in his care.
Father began participating in counseling and parenting classes, completed 12 weeks of a 52-week domestic violence program, and consistently attended semiweekly two-hour visits with R.B. that were described as positive and engaging. In the winter of 2016, his visitation was increased to thrice-weekly for three hours each, unsupervised at the paternal grandparents' home. During these visits, father sometimes cooked meals for the family and R.B. spent time with her older half brother, J.B.
Although father reported his relationship with mother had ended, in April 2016 mother was pregnant with twins that the department suspected were his. She later gave birth prematurely and the twins died. Father ultimately admitted he was the father of the twins but insisted he had since discontinued his relationship with mother.
In June 2016, father began having overnight visits with R.B. and J.B. and no problems were initially reported. Also in June 2016, the maternal great aunt reported J.B. had inappropriately touched R.B. The department noted that the maternal great aunt had not personally observed this touching and had given somewhat conflicting information about it. Nonetheless, a report was made to the sheriff's office which directed that R.B. and J.B. were not to stay together at father's house or at the maternal great aunt's house.
At the 12-month review hearing on August 13, 2016, the court ordered six more months of services for father. Father was having twice-monthly overnight visits with R.B., which she enjoyed. R.B. also had supervised visitations with both J.B. and father, and video-chatted with J.B. during her solo overnight visits with father.
On February 8, 2017, following the 18-month review hearing, R.B. was returned to father's care under a family maintenance program. They resided together at Betty's House, a transitional housing program. The paternal grandmother cared for R.B. during the day while father worked. Initially, father complied with the program requirements at Betty's House.
However, in mid-July 2017, he began violating its curfew, and, on July 18, he was arrested on an outstanding warrant, at which time methamphetamine was found in a backpack on the back seat of his car while J.B. (then 10 years old) was seated in the front passenger seat. He was arrested for possession of a controlled substance. The next day, he left Betty's House with the children without signing out and did not return for five days. Father denied drug use but tested positive for amphetamine (which he blamed on his use of cold medicine).
Following a September 20, 2017 review hearing, father's family maintenance services were continued and he was ordered to take a hair follicle test. The court found father had made only minimal progress on his case plan.
Father's test came back negative; however, the results only measured 30 days instead of 90 days because he shaved his head in August 2017.
In December 2017, the department reported that father and R.B. had left Betty's House and moved into an apartment with J.B. The family went trick-or-treating on Halloween with mother.
In February 2018, the department received a new referral, alleging J.B. had sexually abused R.B. and caused her private parts to become sore and irritated. In addition, the department received a report that mother was residing with the family in violation of a court order.
These allegations were never substantiated.
On May 3, 2018, a review hearing was held, after which father's family maintenance services were again continued, although the court found he had made only minimal progress on his case plan. He retained custody of R.B.
Father took another hair follicle test on May 7, 2018, that reflected amphetamine and methamphetamine use at "extremely high" levels indicating substantial and chronic drug use, prompting the department to request a protective custody warrant.
On May 15, 2018, the department presented a protective custody warrant to the juvenile court. It summed up the situation by reporting: "[R.B.] and [J.B.] have been involved in a dependency case for the past three years. The father is in denial of his serious substance abuse issues and has shown a pattern of failing to protect the children from the conduct of [R.B.'s] mother. [R.B.'s] dental needs are not being met, and [J.B.] is exhibiting signs of emotional distress and dysregulation. Despite having completed [a drug treatment] program in January 2018, the father has continued abusing methamphetamine. The Department is respectfully requesting a protective custody warrant to remove [J.B.] and [R.B.] from the home." The court signed the warrant. The following day, R.B. was taken from the paternal grandparents' home.
On May 18, 2018, the department filed a supplemental petition under section 387 alleging R.B.'s prior disposition had not been effective because: (1) she had four cavities discovered in June 2017 that remained untreated; (2) father was arrested in J.B.'s presence for possession of a controlled substance; (3) R.B. at least twice reported that mother was living in their home; and (4) father's hair follicle test in May 2018 indicated amphetamine and methamphetamine use at very high levels.
On May 22, 2018, the juvenile court held a detention hearing and found that leaving R.B. in father's care would be contrary to her welfare; there would be substantial danger to her physical and emotional health.
In June 2018, father was referred to an intensive outpatient treatment program. In mid-June, he completed another hair follicle test, again testing positive for amphetamine and methamphetamine use at very high levels (albeit slightly lower than in May 2018).
A jurisdiction hearing was held on June 25, 2018, after which the juvenile court sustained the section 387 petition. On October 17, 2018, the disposition hearing took place, and the court placed R.B. in foster care and declined to order further reunification services for father because the statutory time period for services had expired. The matter was set for a section 366.26 hearing.
On February 20, 2019, father filed a section 388 request asking that R.B. be returned to his care under a family maintenance program. Father contended his circumstances had changed because he had completed substance abuse and 52-week domestic violence programs, had a negative hair follicle test, and was regularly attending Alcoholics and Narcotics Anonymous. His request attached supporting evidence. The juvenile court ordered his request to be heard on February 27, 2019, the same date as the section 366.26 hearing.
On the day of these hearings, the department filed a report describing R.B. as a healthy, happy, imaginative kindergartner who was on track developmentally. She was comfortable and happy in her placement with her foster parents, who had also adopted her younger sister, formerly known as C.B. R.B. had bonded with this family and missed them when away on weekends visiting her maternal great aunt. R.B. called her foster mother " 'mommy.' "
J.B. had also been placed with this foster family for a brief period of time; however, he was removed due to his significant mental health and behavioral issues. Nonetheless, this foster family was committed to supporting R.B. and J.B.'s relationship. According to an earlier report, the family had also established relationships with other of R.B.'s biological relatives and had shown their commitment to maintaining connections with family.
The department noted R.B. had important relationships with father, mother, her maternal great aunt, and her older half brother and younger sister. While father was determined to reunify with R.B., he had a good relationship with her foster family and, should the court refuse his request to return R.B. to his care, supported the permanent plan of adoption with this family. Father continued to have regular, positive weekly visitation with R.B. As of July 31, 2018, the state of his relationship with mother was unknown, and the department noted he had credibility issues in this regard.
The department summed up father's history, writing: "The family has been in an open Dependency case for nearly four years. [Father] continues to struggle with the issues, which led his family to the attention of the Court. At times, [father] has maintained sobriety, maintained appropriate boundaries with persons known to engage in violent behavior, and met his children's physical and emotional needs. At other times, [father] has clearly not followed Court orders, maintained his sobriety or appropriate boundaries, nor has he consistently managed to meet his children's physical and emotional needs for longer than six months at a time. It is unlikely that the changes that [father] has made this time around are going to be permanent ones."
The combined section 366.26 and section 388 hearing began February 27, 2019, and continued on March 11, 2019. Father argued for R.B.'s placement with him. He further argued for a permanent plan of guardianship instead of adoption. The juvenile court rejected father's arguments, denied the section 388 request, found by clear and convincing evidence that R.B. would be adopted, and terminated his parental rights. Father filed a timely notice of appeal.
DISCUSSION
Father contends the juvenile court erred in terminating his parental rights to R.B. and selecting adoption as the permanent plan rather than legal guardianship. The governing law is not in dispute.
"At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.]" (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.)
" 'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).' " (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) The fact that the juvenile court has continued a child's removal from parental custody and has terminated reunification services is a sufficient basis for terminating parental rights absent a compelling reason for determining such termination would be detrimental to the child due to the existence of one of the circumstances specified in section 366.26, subdivision (c)(1). (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351-1352 (Jasmine D.).) "Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., at p. 1350, italics added.)
"Appellate courts are divided over the appropriate standard of review for an order concerning the applicability of [one of the statutory] exception[s] to termination of parental rights. Indeed, in our own First District, we have variously found a juvenile court's decision in this regard reviewable for abuse of discretion ([Jasmine D., supra,] 78 Cal.App.4th [at p.] 1351 [citation] . . . ), for substantial evidence ([In re] G.B., supra, 227 Cal.App.4th at p. 1166), and, most recently, by a combination of the two. (In re E.T. (2018) 31 Cal.App.5th 68, 76 [citation] (E.T.) [applying substantial evidence standard to 'the factual issue of the existence of a beneficial parental relationship'; applying abuse of discretion standard to whether that relationship provides 'a compelling reason for finding that termination would be detrimental to the child'].) We join those appellate courts that have taken a hybrid approach. Underlying factual determinations—such as whether a parent has maintained regular visitation or whether a beneficial parental relationship exists—are properly reviewable for substantial evidence. (E.T., at p. 76; [citations].) In contrast, a juvenile court's determination whether such a relationship provides a compelling justification for forgoing adoption 'is based on the facts but is not primarily a factual issue.' [Citation.] Rather, it is 'a "quintessentially" discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption.' (Ibid.; see Jasmine D., at p. 1351.) Intrinsic to a balancing of these interests is the exercise of the court's discretion, properly reviewable for abuse." (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.)
Thus, applying our colleagues' pragmatic hybrid approach to our case, " '[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record in favor of the juvenile court's order and affirm the order even if other evidence supports a contrary finding.' [Citation.]" (In re Caden C., supra, 34 Cal.App.5th at p. 106, rev.gr.) Further, in reviewing the court's decisions for an abuse of discretion, the " 'appropriate test . . . is whether the trial court exceeded the bounds of reason. 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.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Here, father does not dispute the trial court's determination that R.B. is adoptable and likely to be adopted. Rather, he contends the court's termination of his parental rights was erroneous because both the beneficial parent relationship exception (§ 366.26, subd. (c)(1)(B)(i)) and the sibling relationship exception (id., subd. (c)(1)(B)(v)) apply to his case. We address each of these statutory exceptions and their applicability on this record below.
A. Beneficial Parent Relationship Exception.
The beneficial parent relationship exception applies where the evidence establishes that, one, the parent has "maintained regular visitation and contact with the child" and, two, "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).)
With respect to the first requirement, the department "readily acknowledges that [father] maintained regular visitation and contact with [R.B.], and that [R.B.] enjoyed spending time with him." We thus focus on the second requirement—whether the juvenile court properly found R.B. would not benefit from continuing her relationship with father. (§ 366.26, subd. (c)(1)(B)(i).) Case law has adopted the following standard: "When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental relationship would deprive the child of 'a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)
While " '[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child[,] . . . [t]he exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.' (In re Autumn H. [(1994)] 27 Cal.App.4th [567,] 575.)" (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)
Here, the juvenile court found the permanent plan for R.B. should be adoption because "[her] life has been in limbo long enough" and she "does need permanence." The record supports this finding under both the substantial evidence and the abuse of discretion standards.
As documented in the department's reports, father had been unable to successfully reunify with R.B. during her nearly four years of dependency. R.B. had become quite attached to her prospective adoptive family, which was undisputedly capable and prepared to care for her along with her younger sister, whom they had already adopted. And of particular significance, father's history of substance abuse—a key factor behind R.B.'s dependency—had not been fully overcome, and although father has been sober for several months, his history of relapses permitted only guarded optimism at best.
This evidence fully supports the court's selection of adoption by R.B.'s foster/prospective adoptive family rather than legal guardianship. It also reflects that the juvenile court was appropriately focused at this juncture on R.B.'s best interests, particularly her present need for permanency and stability after several years of turmoil. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Simply put, father has not been able to provide R.B. the stable relationship to which she is entitled. He has a well-documented history of drug use, followed by sobriety, followed by relapse that has caused R.B. to be shuffled from one placement to another, numerous times in her young life. His "on again-off again" relationship with mother has exposed R.B. to mother's substance abuse, volatile behavior, and domestic violence by both parents. The parents have rarely, if ever, had their three children together in one home for any extended period of time. The siblings' relationship has been subject to significant periods of separation. There is also evidence that father unreasonably delayed procuring dental care for R.B., causing her to suffer blackened teeth, untreated cavities and pain.
We acknowledge father's persistent efforts to reunify with R.B and his unquestionable love for her. Unfortunately, the record also reflects his ongoing struggles with the very issues that led to R.B.'s dependency in the first place. At this point, R.B. needs and deserves the stability and permanence that her prospective adoptive parents can provide. Accordingly, the juvenile court's rejection of the beneficial parent relationship exception as a basis for maintaining parental rights is supported by substantial evidence and a reasonable exercise of its discretion. (See In re Noah G. (2016) 247 Cal.App.4th 1292, 1302, 1304 [juvenile court properly declined to apply the beneficial relationship exception where mother's continuing drug abuse was "evidence continuing the parent-child relationship would not be beneficial"]; cf. In re S.B., supra, 164 Cal.App.4th at p. 300 [court erred in declining to apply the beneficial parental relationship exception where the record established "[father's] devotion to S.B. was constant, as evinced by his full compliance with his case plan and continued efforts to regain his physical and psychological health" (italics added)].)
B. Sibling Relationship Exception.
Section 366.26, subdivision (c)(1)(B)(v), the sibling relationship exception, precludes termination of parental rights where it would be detrimental to the child because "[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).)
"Reflecting the Legislature's preference for adoption when possible, the 'sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953 [citation].)" (In re Celine R. (2003) 31 Cal.4th 45, 61.) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
Here, the juvenile court declined to apply the sibling relationship exception, implicitly finding the benefits of adoption outweighed the benefit of continuing R.B.'s sibling relationship with J.B. (§ 366.26, subd. (c)(1)(B)(v).) As before, the court's factual conclusions were supported by substantial evidence, and its weighing of the competing factors based on this evidence was a proper exercise of discretion.
Undoubtedly R.B. and J.B. love each other, have had many shared experiences, and have provided comfort to each other in times of distress. However, it is also true R.B. and J.B. have spent significant portions of their lives apart. After being removed from father's home in 2015, R.B. and J.B. were placed in separate foster homes. The siblings then went to live together at the maternal great aunt's house, but "due to worries about boundary issues with [J.B.], they ha[d] not been in the home at the same time since 07/12/2016." From August 18, 2016, to April 19, 2017, J.B. went to live with his biological mother. Both children were then returned to father's care. However, they were removed again on May 16, 2018, at which time they first went to live in separate foster homes before being placed together in the home of R.B.'s prospective adoptive parents on July 5, 2018. J.B. was removed from this home in January 2019 due to his mental health and behavioral issues, and the children have since then lived separately. At the time of the disposition hearing, J.B. remained a dependent with services being provided to father with the goal of their reunification.
This evidence supports the court's finding that discontinuing the sibling relationship would not be detrimental to R.B., because she had spent a significant portion of her life living apart from J.B. In addition, even assuming their relationship was sufficiently significant to cause detriment on its termination, the court properly concluded that R.B.'s interest in the permanency and stability of adoption far outweighed her interest in continuing the relationship. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) In In re L.Y.L., for example, the siblings (a four-year-old and her younger brother) had spent most of their lives together, were quite close and had many shared experiences having been through dependency together. (Id. at pp. 946, 952.) The trial court's decision not to apply the sibling relationship exception was affirmed after the reviewing court concluded "there was no evidence [the child], other than being sad, would suffer detriment if the relationship ended" and that the benefits of adoption outweighed the child's interest in continuing the relationship. (Id. at pp. 952-953.) We reach the same conclusion here on an a fortiori record.
Accordingly, we affirm the court's refusal to apply the sibling relationship exception in this case. As other courts have concluded: "Waiting would not bring stability to [R.B.] and, to the contrary, could leave her within the dependency system in perpetuity. She is entitled to stability now, not at some hypothetical point in the future." (In re Megan S. (2002) 104 Cal.App.4th 247, 254; see In re C.B. (2010) 190 Cal.App.4th 102, 131.)
DISPOSITION
The juvenile court's findings and orders of February 27, 2019, and March 11, 2019, are affirmed.
/s/_________
Goode, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Fujisaki, J.
Retired Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------