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In re Cole R.

California Court of Appeals, Second District, Seventh Division
Jul 15, 2008
No. B203670 (Cal. Ct. App. Jul. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. CK 65018, Steven Berman, Referee.

Sharon S. Rollo, under appointment by the Court of Appeal for Appellant T.R.

Niccol Kording, under appointment by the Court of Appeal for Appellant William R.

Raymond G. Fortner, County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Senior Associate County Counsel for Los Angeles County Department of Children and Family Services.


ZELON, J.

Mother T.R. and Father William R. appeal the dependency court’s order terminating their parental rights to their son Cole R. and selecting his foster home as his prospective adoptive home. They contend that the trial court erred in failing to apply the relative placement preference of Welfare & Institutions Code section 361.3 at the section 366.26 hearing by selecting Cole’s maternal grandparents as his prospective adoptive parents and in failing to continue the hearing pending receipt of the written home study on Cole’s grandparents. Father separately argues that the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) applies due to his visitation with Cole. We affirm.

All references herein, unless otherwise noted, are to the Welfare & Institutions Code.

The substantive provisions of Welfare & Institutions Code section 366. 26, subdivision (c)(1)(A) are now found at section 366.26, subdivision (c)(1)(B)(i), effective January 1, 2008. (Stats. 2007, c. 583 (S.B.703), § 28.5.)

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cole was born in July 2006 with marijuana and opiates in his system. Mother claimed to have been using medication provided during childbirth, but Mother’s prenatal records showed a February 2006 positive screen for marijuana. At the time, Mother agreed to voluntary services, but avoided contact with the Department.

1. Cole’s Detention, September 11, 2006.

Mother was arrested for misdemeanor intoxication on September 11, 2006 with a blood alcohol content of .018 percent. Mother’s landlord had called the police and informed them that Mother had come home extremely intoxicated. Mother went into her apartment, sat on the sofa, passed out, and when Cole began to cry, woke up long enough to vomit on him. Mother got up, left the apartment, and passed out on the back walkway, where the police found her when they arrived. Cole was taken into protective custody. The landlord advised police that Mother and Father had engaged in a physical altercation the day before while Mother was holding Cole.

When the Department interviewed her on September 12, 2006, Mother denied substance abuse and physical violence. Father denied knowing that Mother abused drugs, although he admitted that she drank and used marijuana during her pregnancy; he claimed Mother used only because she did not know she was pregnant. Father denied violence towards Mother. The Department filed a Section 300 petition on September 14, 2006, alleging domestic violence and failure to protect. (§ 300, subds. (a) (b).) Cole was placed in a foster home.

At the detention hearing, the dependency court found that Father was Cole’s presumed father, and ordered that Cole receive a Regional Center assessment due to prenatal exposure to alcohol and drugs. The court ordered Mother and Father to complete 10 consecutive weekly clean random drug tests, and ordered drug and alcohol rehabilitation, parenting classes, and domestic violence and individual counseling.

2. Jurisdiction and Disposition, October 17, 2006.

The Department’s jurisdictional/disposition report prepared for the October 17, 2006 hearing stated that both parents had criminal histories. Mother advised the Department that just prior to her arrest, Father had taken Cole to Jamaica to meet Mother’s parents. The Department stated that both parents had unresolved substance abuse problems, and had exposed Cole to a violent home environment involving verbal and physical altercations. Neither parent had appeared for a scheduled interview with the Department on September 29, 2006. On October 5, 2006, Mother called the foster home several times and left rude messages, and Mother threatened the foster mother and said she would have her killed. The Department filed a last-minute informational report for the continued October 20, 2006 hearing that disclosed Mother was arrested on October 10, 2006 in connection with a prior conviction in Texas.

At the October 17, 2006 hearing, after receiving the parents’ waivers, the court advised the parents it would only give them six months of reunification services. For Mother, the court ordered parent education, drug abuse rehabilitation with random weekly testing, a 52-week domestic violence course, and individual counseling to address substance abuse and anger management. For Father, the court ordered parent education, a 52-week domestic violence course, random weekly drug testing, and individual counseling. The court ordered that if Father missed a drug test or submitted a dirty drug test, he would be ordered into a full drug rehabilitation program. Both parents were given monitored visitation, and ordered not to visit at the same time. The court ordered an expedited ICPC for a paternal aunt and uncle in Missouri, and a psychological evaluation for Mother. The court sustained the allegations of the petition.

The Interstate Compact on the Placement of Children (Fam. Code, §§ 7900-7912) facilitates cooperation between participating states in the placement and monitoring of dependent children. (See In re Johnny S. (1995) 40 Cal.App.4th 969, 974-975.)

On November 20, 2006, the Department advised the court that the paternal aunt and uncle were not interested in having Cole placed with them due to Father’s alcoholism and Mother’s behavior, which they described as “totally insane, totally off the wall.” The court vacated the expedited ICPC order.

3. Section 342 Petition, March 10, 2007.

On March 10, 2007, the Department filed a section 342 petition. The Department’s report in support of the petition stated that on December 18, 2006, during a monitored visitation, Father and Mother had abducted Cole. An Amber alert was issued, and Mother and Father were arrested the next day. Both parents were jailed briefly, and sentenced to five years probation.

The Department also reported that Mother had been repeatedly harassing the foster mother, had threatened the foster mother with death or bodily harm, and had demeaned the foster mother’s behavior. In February 2007, Mother had threatened to blow up the Department’s offices with a bomb. As of February 27, 2007, Cole had been placed in a new confidential placement.

The Department reported that Mother had not enrolled in parenting classes, domestic violence, or individual counseling, and she had not drug-tested. Father had enrolled in parenting classes, and was drug testing for his probation officer. Father had not enrolled in any other court-ordered courses. The Department had spoken to the maternal grandparents, who lived in Jamaica. They wanted to have Cole placed with them.

4. Restraining Order Against Mother, March 28, 2007.

On March 28, 2007, the court granted the Department’s request for a restraining order due to Mother’s threats to bomb the Department’s offices. The court ordered an international ICPC on the home of the maternal grandparents in Jamaica, and continued the hearing on the section 342 petition to April 20, 2007.

5. Six-Month Review Hearing, Section 342 Petition, April 20, 2007.

The Department’s status review report prepared for the April 20, 2007 hearing reported that Father had told the social worker he and Mother were “still together.” Father had completed six of nine classes in a 20-week parenting course; when he returned to class on January 31, 2007, his attendance improved, and he attended eight out of the next nine scheduled classes. Mother had been participating in her ordered services, but had not completed any of them. Mother had not visited Cole since the mid-December abduction, Father had visited in February and March 2007. Mother had told the social worker that “I am going to kill someone before the baby goes to adoption.” The Department had initiated an adoption assessment, and noted that Cole was considered highly adoptable. The Department recommended termination of reunification services.

On April 20, 2007, the court ordered an international home study on Cole’s maternal grandparents, Herman and Valerie D., and continued the review hearing and section 342 hearing to May 17, 2007.

A last minute information report filed for the six-month review hearing stated that the Department had not been able to serve Mother with a copy of the restraining order because Mother was whereabouts unknown. Father had met with the social worker to discuss his case on April 30, 2007, and advised the social worker that he needed one more class to complete his parenting classes and he was in the process of enrolling in individual counseling. However, the Department had not received any documentation verifying Father’s enrollment. Father had been visiting Cole on a regular basis and was attentive and affectionate. Cole was happy to see Father and was often heard saying “Dada.” Nonetheless, the Department was concerned that Father lacked the ability to protect Cole. Although Father claimed he was not seeing Mother, the social worker learned that Mother and Father were in regular contact.

6. Continued Section 342 Petition, Termination of Reunification Services, and Restraining Order Hearing, May 17, 2007.

At the May 17, 2007 hearing, Father advised the court he had, in the past two weeks, enrolled in his required programs, and that he need only one more class to complete his parenting classes. Although the court had ordered weekly testing, Father had been drug testing once a month. Father claimed not to know where Mother was, although he had been in contact with her. Mother was whereabouts unknown, had not been visiting Cole, and had placed disparaging comments about the Department on Craigslist. The Department requested that reunification services be terminated.

Father testified that although Mother had threatened to kill him, he was not afraid of her. He admitted visiting with her. The court expressed concern that Father had not completed his domestic violence courses, had not enrolled in individual counseling, and was meeting with Mother. The court found Mother and Father were not in compliance with their case plans and terminated reunification services, and set the section 366.26 hearing for September 13, 2007. The court sustained the allegations of the Department’s section 342 petition, and issued an order to show cause regarding the Department’s failure to set up weekly drug testing for Father.

Mother submitted a letter dated May 18, 2007 to the court, stating that she had not appeared at the hearing because of her relationship with the Department. She expressed her desire that her parents care for Cole. Maternal grandfather Herman D. submitted a letter on his own behalf from the Jamaica Defense Force stating that he had four other children, including a medical doctor, an accountant, an attorney, and a computer engineer. Herman D. had served as Lieutenant Commander in the Defense Force and was now retired, but operated a small boat repair shop and marine engineering consultancy firm.

The Department’s last minute information report for May 31, 2007 stated that Mother remained whereabouts unknown and the Department had been unable to serve her with the restraining order. The Department had initiated an adoptive home study on the maternal grandparents. The social worker contacted the Child Development Agency in Jamaica and confirmed that it had received all of the necessary paperwork from the Department. However, the Department would need to provide $800 for an administrative fee, and was applying for funding to cover this expense to complete the home study. Maternal grandmother Valerie D. informed the Department she did not “want her only grandson raised by strangers,” and advised the Department she was aware of Mother’s substance abuse problems and would protect the child.

The court’s last minute information report stated that on May 31, 2007, Mother had been arrested in front of Father’s house on charges of drug possession and outstanding warrants for threats of assault. The social worker personally served Mother with the restraining order, and Mother assured the social worker she understood the restraining order and would make no further harassing calls to the Department, the foster agency, or their employees. On June 7, 2007, the Department received approval for the payment of $800 to the children’s services agency in Jamaica for the home study. Mother indicated that she supported Cole’s adoption by her own mother, and Father stated he would rather have Cole raised by his maternal grandparents than continue in foster care.

At the June 14, 2007 hearing on the order to show cause, the court continued the matter and ordered the Department to complete the home study on Mother’s parents if the maternal grandparents were interested in adoption. At the continued June 22, 2007 hearing, the court issued the restraining order.

7. Section 366.26 Hearing, September 13, 2007.

The Department’s last minute information prepared for the September 13, 2007 hearing stated that Mother remained incarcerated and would not be eligible for parole until 2011. The Jamaican Child Development Agency had advised the Department that the home study on the maternal grandparents would be ready within two weeks.

The section 366.26 report stated that Cole remained placed in his foster home, where he had been residing since February 2007. Cole’s foster parent had expressed interest in adopting him, and the adoptive home study had been approved. Cole’s maternal grandmother had visited with Cole prior to his detention in September 2006 at the time Father had taken Cole to Jamaica when Cole was approximately one month old. The Department also reported that Father had been visiting weekly at Edelman Children’s Court, while Mother had not visited due to her incarceration.

At the continued hearing on September 21, 2007, the court granted Mother’s Marsden motion and appointed new counsel for Mother; the matter was continued to October 24, 2007.

On October 24, 2007, Mother filed a section 388 petition, alleging that she had obtained pre-screening approval from the California Department of Corrections’ Family Foundation Program, which would provide placement and support for Mother and Cole. Mother was enrolled and participating in drug counseling, parenting education, computer classes, and alcoholics anonymous. Mother sought reinstitution of reunification services.

The Department’s Information Report stated that the Department had contacted the Jamaican Child Development Agency to get an update on the home study, and had been informed that it had been completed and the paperwork mailed to the Department that morning. The Jamaican agency had found no problems with the home, and recommended that Cole be placed with his maternal grandparents. However, the Department had not received the study. The Information report further stated that the social worker had spoken to Cole’s maternal grandfather, who stated that had he known of the danger to Cole, he would not have permitted Father to return with Cole to the United States. Cole’s grandfather stated that he would be very strict in protecting Cole from his parents. Mother did not object to Cole’s placement with her parents, although she wanted him returned to her.

The Department reported it had visited Cole in his foster home, where Cole had a good relationship with his caregivers. Cole’s caregivers were interested in adopting Cole if he were not placed with his grandparents. The Department’s report acknowledged that without receipt of the Jamaican home study, it could make no recommendation for Cole’s placement. The Department requested a continuance of the section 366.26 hearing in order to make a specific recommendation pending receipt of the Jamaican home study.

At the October 24, 2007 hearing, the court summarily denied Mother’s section 388 petition. The court noted that the relative placement preference did not apply because no new placement was at issue.

Father testified in connection with the section 366.26 hearing that at the time Cole was born, Father did not reside with Mother but visited Cole daily. In September 2006, Father took Cole to visit his maternal grandparents. Since Cole’s detention, Father had been visiting weekly with Cole. Cole called him “dada.” Father did not want his parental rights to be terminated because he had a bond with Cole. Father had submitted a dirty drug test for marijuana, but claimed he had not smoked in two years. If he were awarded custody of Cole, Father promised he would not have any contact with Mother.

Mother testified that she had a very close bond with Cole, although she currently did not have any contact with him. She believed Cole would be harmed if he was not returned to her.

The court found that two adoptive home studies had been completed, one for Cole’s foster home and one for his Jamaican grandparents. The court terminated parental rights and identified adoption as the permanent plan, and found “nothing close” to a section 366.26 (c)(1)(B)(i) exception because Mother was incarcerated and Father was still “at monitored visitation.” The court ordered the Department to obtain the Jamaican home study, and “if and when there is a choice between the maternal grandparents and the current placement, the department is to make whatever motions are necessary.” Over the Department’s objection under section 366.26, subdivision (j), the court named the current caretakers the prospective adoptive parents pursuant to section 366.26, subdivision (n). The court denied a request to authorize a passport application for Cole.

Section 366.26, subdivision (j), provides in relevant part: “If the court, by order or judgment, declares the child free from the custody and control of both parents, or one parent if the other does not have custody and control, the court shall at the same time order the child referred to the State Department of Social Services or a licensed adoption agency for adoptive placement by the agency. . . . The State Department of Social Services or licensed adoption agency shall be responsible for the custody and supervision of the child and shall be entitled to the exclusive care and control of the child at all times until a petition for adoption is granted, except as specified in subdivision (n).”

Section 366.26, subdivision (n) provides in relevant part: “(1) Notwithstanding Section 8704 of the Family Code or any other provision of law, the court, at a hearing held pursuant to this section or anytime thereafter, may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process.”

DISCUSSION

I. MOTHER AND FATHER LACK STANDING TO RAISE THE RELATIVE PLACEMENT PREFERENCE.

Mother and Father argue that the dependency court erred in failing to consider the relative placement preference before designating Cole’s current caretaker as his prospective adoptive placement. They further contend the trial court erred in applying section 366.26, subdivision (n), and erred in failing to continue the section 366.26 hearing pending receipt of the Jamaican home study. The Department contends the parents lack standing to raise the issue, and forfeited the issue by failing to raise it either at the disposition hearing or when Cole was moved in February 2007, and that in any event, even if the court were required to consider the relative placement preference after reunification services were terminated, Cole’s best interests required placement with his current caregivers.

We find the parents do not have standing to raise the relative placement preference issue. Whether a party has standing in a particular case focuses on whether the person has “a legally cognizable immediate and substantial interest which is injuriously affected by the court’s decision.” (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) Here, after their parental rights were terminated, the parents were not aggrieved by the dependency court’s selection of Cole’s foster home as his prospective adoptive home. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1193 [no standing where parent’s interest limited to continuation or termination of parental rights].) Furthermore, the proper time to raise the relative placement preference issue was at disposition, or upon Cole’s new placement in February 2007. (§ 361.3, subds. (a), (d); cf. In re Joseph T., Jr. (2008) 163 Cal.App.4th 787, 797-798 [relative placement issue not limited to disposition and new placements, but may be raised at any time prior to termination of reunification].)

On that basis, In re H.G. (2006) 146 Cal.App.4th 1, upon which Mother relies in her reply brief, is distinguishable. In H.G., the parents challenged the removal of their child from the grandparents’ custody prior to the termination of parental rights. (Id. at p. 9.)

II. THE DEPENDENCY COURT DID NOT ERR IN CONCLUDING THAT THE BENEFICIAL RELATIONSHIP EXCEPTION OF SECTION 366.26, (C)(1)(B)(i) DID NOT APPLY.

Father contends the exception of section 366.26, subdivision (c)(1)(B)(i) should govern, because he regularly visited Cole and was bonded with him, as evidenced by the fact Cole addressed him as “dada” and Father played a parental role in Cole’s life. Further, he asserts Cole would benefit from continuing the relationship because Father has a loving and nurturing relationship with Cole.

Subdivision (c)(1)(B)(i) of section 366.26 creates an exception to the preferred permanent plan of adoption where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” To invoke the exception, a parent has the burden to show that he or she has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, and the termination of parental rights would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)

Courts have interpreted the exception to require a relationship that promotes the child’s well-being to a degree that outweighs the benefits the child would gain from a permanent home with new adoptive parents, such that severing the natural parent/child relationship would deprive the child of such a substantial, positive emotional attachment and the child would be greatly harmed. Thus, in evaluating whether to apply the beneficial relationship exception, the court must balance the parent’s regular visitation with the child against the benefits to be obtained if the child were to be placed in a permanent, adoptive home. (In re Helen W. (2007) 150 Cal.App.4th 71, 81 [applying two-prong balancing test]; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 450 [same].) The court must balance “the strength and quality of the natural parent/child relationship” against “security and sense of belonging a new family would confer.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Helen W., supra, 150 Cal.App.4th at p. 81.)

Some appellate courts apply the deferential substantial evidence standard in reviewing such determinations. (See, e.g., Autumn H., supra, 27 Cal.App.4th at pp. 576-577; In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) Under this standard, we must accept as true the evidence most favorable to the order, and we may not reweigh the evidence or substitute our judgment for that of the dependency court. (See In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Others apply the abuse of discretion standard, under which we will not disturb the dependency court’s decision unless the dependency court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In this case, we need not decide whether the dependency court’s ruling on the section 366.26 (c)(1)(B)(i) exception is reviewed for abuse of discretion or substantial evidence, because, under either standard we affirm the dependency court’s decision.

Here, although Father had a friendly relationship with Cole, the record does not support his assertion that he occupied a parental role in Cole’s life, nor does it support the conclusion that terminating parental rights would be detrimental to Cole. Father’s relationship with Cole was minimal, and never progressed past monitored visitation. Although the visits were friendly and the social workers noted no problems during the visits, Father’s contact with Cole was necessarily limited by the dependency proceedings that had been instituted when Cole was two months old; given the limitations of the visitation, Father did not have the opportunity to occupy a parental role in Cole’s life. On the other hand, nothing in the record suggests Cole would suffer detriment from the termination of parental rights. Father had not completed his case plan; Father continued to have contact with Mother even after being ordered not to do so, raising concerns about his ability to protect Cole from Mother; and Cole had a prospective adoptive home where he was thriving.

DISPOSITION

The order of the superior court is affirmed.

We concur: PERLUSS, P. J., WOODS, J.


Summaries of

In re Cole R.

California Court of Appeals, Second District, Seventh Division
Jul 15, 2008
No. B203670 (Cal. Ct. App. Jul. 15, 2008)
Case details for

In re Cole R.

Case Details

Full title:In re COLE R., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 15, 2008

Citations

No. B203670 (Cal. Ct. App. Jul. 15, 2008)