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In re D.C.

California Court of Appeals, First District, Third Division
Sep 29, 2008
No. A121041 (Cal. Ct. App. Sep. 29, 2008)

Opinion


In re D.C., Jr., et al., Persons Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. D.C., Sr., Defendant and Appellant. A121041 California Court of Appeal, First District, Third Division September 29, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Contra Costa County Super. Ct. Nos. J06-00487 & J06-00488.

McGuiness, P.J.

Appellant D.C., Sr., the presumed father of N.C. and D.C., Jr., appeals from juvenile court orders terminating his parental rights. He contends the juvenile court abused its discretion by terminating his parental rights despite evidence the children would benefit from continuing their relationship with him. We affirm.

For the sake of clarity and convenience, we refer to D.C., Sr., as appellant and D.C., Jr., as D.C.

FACTUAL AND PROCEDURAL HISTORY

On March 8, 2006, the Contra Costa County Children & Family Services Bureau (Bureau) detained D.C. and N.C. (also referred to as T.C.) along with their half-siblings, T.G. and M.G. Appellant is the presumed father of D.C. and N.C. , and he is the stepfather of T.G. and M.G. At the time of their detention, D.C. was two years seven months old, and N.C. was 18 months old.

On April 17, 2006, the Bureau filed amended petitions alleging D.C. and N.C. came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300 based on the following allegations: appellant had sexually molested N.C. and her half-sister, T.G.; appellant had physically assaulted and injured the children’s mother on more than one occasion; the mother failed to protect the children and their half-siblings from appellant’s sexual abuse; and appellant and the mother had used inappropriate physical discipline on the children. The petitions described the sexual molestation as partial penile penetration of T.G. and genital to genital contact with N.C. The Bureau alleged that N.C. came within the jurisdiction of the juvenile court under section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling). The Bureau alleged that D.C. came within the jurisdiction of the juvenile court under section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).

All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

At the jurisdiction hearing on August 10, 2006, the juvenile court sustained allegations under section 300, subdivisions (b) and (j) that appellant had sexually molested his stepdaughter, T.G., that he had physically assaulted the mother, and that he had used inappropriate physical discipline on T.G. The court dismissed the allegation under section 300, subdivision (d), that appellant had molested N.C.

According to the Bureau, appellant continued to adamantly deny he sexually abused T.G. or any of his children as of the date of the disposition report, six months after the children were detained. The parents also denied engaging in domestic violence. Although the Bureau noted there were grounds to deny services altogether in light of the court’s findings of severe sexual abuse, the Bureau nonetheless recommended offering reunification services to appellant. The Bureau explained that because of the children’s attachment to appellant and the mother’s history of allowing inappropriate contact between appellant and the children, an argument could be made that services would benefit the children. Accordingly, the Bureau recommended offering services to appellant, albeit with “significant reluctance.” At the conclusion of the disposition hearing conducted on September 25, 2006, the juvenile court ordered reunification services for the parents. At a contested six-month review hearing on December 7, 2006, the juvenile court ordered that family reunification services continue and set the matter for a 12-month review in May 2007.

In the report prepared for the 12-month review hearing, the Bureau recommended terminating appellant’s reunification services and setting a section 366.26 hearing because “the amount of services needed well exceeds the legally allowable amount of time that these services can be granted to the parents by the Bureau.” The social worker wrote “[t]here is no indication that six more months will make a substantial difference in either parent’s readiness to safely reunify with their children.” The social worker also reported that appellant had admitted sexually molesting his step-daughter, T.G., and that he had told the social worker “he really wanted to change.”

Appellant’s counsel first informed the court at the time of the disposition hearing in September 2006 that appellant had accepted responsibility for sexually molesting T.G.

The contested 12-month review was continued repeatedly. Ultimately, the court set a contested review hearing for October 3 and 4, 2007. In light of the delay since the six-month review, the Bureau prepared an 18-month review report for the October 2007 hearing. In the report, the Bureau continued to recommend terminating reunification services and setting a section 366.26 hearing, reasoning that appellant’s actions “indicate a pathology that is not easily or quickly resolved.”

At the conclusion of the combined 12- and 18-month review hearing in October 2007, the juvenile court found that the Bureau had offered reasonable services to appellant and that “[t]he treatment provided is relevant and tailored to [appellant] under the circumstances, both the domestic violence and sex offender treatment.” The court further found no exceptional circumstances warranting an extension of services, noting that “even if I were to extend services one month or six months, there is no evidence before me that [appellant] would be ready to get the kids back at that point in time.” The court terminated reunification services and set the matter for a section 366.26 hearing.

Appellant filed a writ petition challenging the juvenile court’s orders, arguing there was insufficient evidence to support the court’s finding that the agency had provided reasonable reunification services to appellant. On December 28, 2007, this court denied appellant’s writ petition on the merits.

In the report prepared for the section 366.26 hearing, the Bureau recommended that the juvenile court terminate parental rights and find adoption to be the appropriate permanent placement for D.C. and N.C. The Bureau described both D.C. and N.C. as adoptable children. They were healthy, developmentally on target, and placed with caregivers who wished to adopt them. D.C. was living with his maternal aunt and uncle and their three children. The whole family wished to make D.C. a permanent member of the family through adoption. D.C. appeared to have made an excellent adjustment to his new family and viewed his aunt and uncle as parental figures.

N.C. was living in a foster home at the time of the section 366.26 hearing. The foster mother had applied to adopt N.C. and had nearly completed her adoptive home study, which the Bureau indicated would be approved. Although the Bureau stated that preference is ordinarily given to placement with relatives, the Bureau indicated that N.C. had developed a strong attachment to her foster mother, with whom she had been living for more than half her life. Breaking that attachment by placing her with relatives could be devastating, and in any event the relatives with whom N.C. might be placed already had “their hands full” with N.C. ’s three siblings.

Until February 2007, appellant had weekly supervised visits with the children. In February 2007, the Bureau reduced the frequency of appellant’s visits to two times per month due to transportation scheduling difficulties. In October 2007, following the combined 12- and 18-month review hearing, the Bureau reduced appellant’s visits with the children to one per month. The report described appellant as “gentle with the children,” giving hugs, laughing and joking with the children, and generally playing well with them. Appellant was late for two visits in late 2006 and early 2007 and missed one visit in January 2007. During a February 2007 visit between D.C., appellant and M.G., D.C. yelled, “I don’t like you!” at appellant following a dispute about D.C.’s use of foul language, and in March 2007, D.C. spit on appellant at the end of a visit after refusing to wear new clothes appellant had bought for him. Aside from these incidents, the section 366.26 report described appellant’s visits with the children in mostly positive terms. The Bureau reported that D.C. cried because he did not want a visit to end in May 2006, and had a hard time separating from his parents following a June 2006 visit.

At the section 366.26 hearing, the social worker testified that appellant had regularly and consistently visited the children, who recognized him as their father during visits. However, she also testified that, based on her conversations with the children’s caregivers, the children did not talk about their father outside of visits.

Appellant’s counsel objected to the permanent plan and claimed that termination of parental rights would be detrimental to the children, citing two exceptions to the statutory directive requiring the juvenile court to terminate parental rights when certain conditions are met. (See § 366.26, subd. (c)(1)(B).) First, counsel claimed the “beneficial relationship” exception of former section 366.26, subdivision (c)(1)(A) applied because appellant had maintained regular visits with the children, who would benefit from a continuing relationship with appellant. Second, appellant’s counsel asserted that the “sibling relationship” exception of former section 366.26, subdivision (c)(1)(E) applied in that the adoption of D.C. and N.C. into different families would substantially interfere with the sibling relationship. Appellant’s counsel requested that the court order long-term guardianship as the permanent plan in lieu of adoption, arguing that guardianship would be the best way to protect the sibling relationship and maintain the beneficial relationship between the children and appellant.

Former section 366.26, subdivision (c)(1)(A) was renumbered effective January 1, 2008. It is now subdivision (c)(1)(B)(i) of section 366.26. (Compare Stats. 2006, ch. 838, § 52, with Stats. 2007, chs. 565, § 4 & 583, §§ 28.5, 37.)

Former section 366.26, subdivision (c)(1)(E) was renumbered effective January 1, 2008. It is now subdivision (c)(1)(B)(v) of section 366.26. (Compare Stats. 2006, ch. 838, § 52, with Stats. 2007, chs. 565, § 4 & 583, §§ 28.5, 37.)

Counsel for the Bureau did not dispute that appellant had consistently and regularly visited the children. However, counsel argued “there’s nothing in the evidence to suggest that the relationship that [appellant] has with his children outweighs the benefits that they would gain from being in a permanent adoptive home.” Counsel described appellant’s relationship with his children as “that of a friendly visitor” and argued the children did not “appear to suffer from not being with him more regularly.” With regard to the sibling relationship, the Bureau’s attorney contended there was no substantial evidence to suggest that termination of parental rights would interfere with continued sibling visits.

The juvenile court found that appellant failed to meet his burden to establish either the beneficial relationship exception of former section 366.26, subdivision (c)(1)(A) or the sibling relationship exception of former section 366.26, subdivision (c)(1)(E). Although the court observed that appellant had satisfied the first prong of the beneficial relationship exception in that he had maintained regular visits with the children, the court concluded that he had not established the second prong of the exception regarding whether the children would benefit from a continuing relationship. Specifically, the court reasoned: “It is correct that [appellant] has maintained regular visitation with the children, but the second prong, which is the question to this Court as to whether or not the children would benefit from the continual relationship, and my analysis, really, is looking at the significance to the children. And the evidence that I have before the Court today is that [appellant] has visited with the children on a regular basis, but I have no evidence of the significance to these children. In fact, the testimony has been that when the children return from their visits, that they have not made any reference to [appellant]. They have not had any—there’s no evidence here that once a visit is over, that they’re asking to have any contact with him or saying that they miss him in any way; on the other hand, there is evidence that . . . starting with [D.C.], that he has a very strong attachment to the caregivers that he is presently placed with. He appears to have made an excellent adjustment to his new family, he relates to his aunt and uncle as the parental figures, and he especially has a very strong attachment with his aunt. [¶] And we have [ N.C. ], who’s [sic] foster mother has also applied to adopt her and has also taken a step by nearly completing the adoption home study. She’s been in the foster mother’s care for almost two years now.”

With regard to the sibling relationship exception, the court found that adoption would not substantially interfere with the sibling relationship. Taking into consideration the nature and extent of that sibling relationship, the court found the evidence was to the contrary.

At the conclusion of the section 366.26 hearing, the court terminated appellant’s and the mother’s parental rights with regard to D.C. and N.C. , and it found by clear and convincing evidence that D.C. and N.C. would be adopted. Appellant filed timely notices of appeal from the orders terminating parental rights.

DISCUSSION

Appellant’s sole contention on appeal is that the juvenile court abused its discretion by terminating parental rights despite evidence that appellant regularly visited the children and that they would benefit from continuing their relationship with him. He urges that the court should have applied the beneficial relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(B)(i).) For the reasons that follow, we disagree.

We review a juvenile court’s decision whether to apply the beneficial relationship exception of section 366.26, subdivision (c)(1)(B)(i) for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342, 1351.) Although several courts have reviewed such decisions for substantial evidence (e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576-577), a panel of this court held in Jasmine D. that abuse of discretion is the appropriate standard of review. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Under this standard, “ ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.] . . . ‘The appropriate test for abuse of discretion 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.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

As this court observed in Jasmine D., the practical differences between these two standards of review are minor, and our evaluation of the factual basis of the court’s exercise of discretion is similar to substantial evidence review. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.)

At a permanency planning hearing, the juvenile court must choose the appropriate long-term placement for a minor child. (See § 366.26, subd. (b)(1)-(5) [alternative placement options include adoption, guardianship, and long-term foster care].) Adoption is the permanent plan preferred by the Legislature because it gives the child the best chance for a stable, permanent home with a responsible caretaker. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) If the juvenile court finds a child adoptable, it must terminate parental rights and order the child placed for adoption unless the court determines that termination would be detrimental to the child due to any of six specified circumstances. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) The first of these, and the only one at issue in this case, is the beneficial relationship exception, which applies 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).) The parent has the burden of proving termination would be detrimental to the child under this exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “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.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)

In addition to demonstrating regular contact and visitation with a child, a parent seeking to rely on the beneficial relationship exception must establish that the relationship with the child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Furthermore, a parent must show that “severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . .” (Ibid.)

The relationship envisioned by the exception in section 366.26, subdivision (c)(1)(B)(i) is a “relationship characteristically arising from day-to-day interaction, companionship and shared experiences.” (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) “A parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 827; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)

In Beatrice M., the mother had “frequent and loving contact” with her daughters. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) The mother lived in an apartment below the daughters, visited them daily, and ate meals with them. (Id. at pp. 1416-1417.) The social worker testified that one of the daughters saw “a lot of [the mother] and she loves her, but she does not have a mother/child relationship with her.” (Id. at p. 1420.) The juvenile court declined to apply the beneficial relationship exception, finding that the girls’ aunt “occupied the primary parental role for the girls, and that their relationship with their mother was akin to that of an extended family member.” (Ibid.) Similarly, in In re Cliffton B. (2000) 81 Cal.App.4th 415, 424, the minor child called his father “daddy,” ran into his arms, and asked to be held. The social worker described a warm and affectionate relationship between the child and his father, and she acknowledged that terminating the relationship would involve some risk to the child. (Ibid.) Nevertheless, the court concluded the benefit of a permanent stable home outweighed the risk posed by discontinuing the parent/child relationship. (Id. at pp. 424-425.)

Here, with regard to the first prong of the beneficial relationship exception, the Bureau conceded that appellant maintained regular visitation and contact with the children. However, with respect to the second prong of the exception, appellant was unable to establish that benefits of his relationship with the children would outweigh the benefits they would gain in a permanent home, or that severing his relationship with D.C. and N.C. would be detrimental to them. While the evidence confirms that his supervised visits with the children were mostly pleasant in nature and that his behavior was appropriate when interacting with the children, appellant failed to establish that he occupied a parental role in the children’s lives. D.C. viewed his caregivers as parental figures, and N.C. had a strong attachment to her foster mother. By contrast, the children did not mention appellant outside of their visits with him, according to the social worker. Further, establishing the sort of relationship necessary to support the beneficial relationship exception is difficult when, as here, the parent has not advanced beyond supervised visitation of the children. (See In re Casey D., supra, 70 Cal.App.4th at p. 51.)

The report prepared for the combined 12- and 18-month review attached a progress report from appellant’s psychotherapist, who recommended that appellant not be allowed to babysit under any circumstances, have no unsupervised access to young children, and have no authority or supervisory role over young children.

Appellant argues the bond with his children only became stronger as time passed and he made progress in the services that were provided to him. The record, however, contains little evidence to support this assertion. Appellant relies primarily on reports of visits conducted in 2006, shortly after the children were detained, to support his contention the children had an emotional attachment to appellant. It was in May 2006 that D.C. cried when a visit was coming to an end, and it was June 2006 when the children became emotional at the conclusion of a visit. The social worker did not describe any behavior by the children in 2007 that would suggest a strong positive emotional connection to appellant. Indeed, the social worker testified that D.C. and N.C. had never mentioned missing appellant, and D.C. had never asked to see his father. Thus, the record does not support the contention that the bond between appellant and his children grew stronger over time.

The court in Autumn H. instructed that the beneficial relationship exception “must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond.” (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Consideration of the variables set forth in Autumn H. supports the juvenile court’s decision to terminate parental rights. By the time of the section 366.26 hearing, D.C. and N.C. had been removed from their father’s custody for nearly two years. They were still relatively young when they were initially detained and had spent a substantial part of their young lives in the custody of persons other than appellant. While the children’s interactions with appellant were mostly positive, the Bureau showed that both children had very close and nurturing relationships with their caregivers. Regarding the children’s “particular needs,” the evidence demonstrated that their caregivers were best suited to meet their most pressing need—the need for a permanent, stable home with people suited to care for them. Given these circumstances, the juvenile court did not abuse its discretion in terminating parental rights and choosing adoption as the permanent plan for D.C. and N.C.

DISPOSITION

The orders terminating appellant’s parental rights are affirmed.

We concur: Pollak, J., Siggins, J.


Summaries of

In re D.C.

California Court of Appeals, First District, Third Division
Sep 29, 2008
No. A121041 (Cal. Ct. App. Sep. 29, 2008)
Case details for

In re D.C.

Case Details

Full title:CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and…

Court:California Court of Appeals, First District, Third Division

Date published: Sep 29, 2008

Citations

No. A121041 (Cal. Ct. App. Sep. 29, 2008)