Opinion
E033370.
7-10-2003
In re JAKE H., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. ROBERT H., Defendant and Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Alan K. Marks, County Counsel, and Donna L. Carlson, Deputy County Counsel, for Plaintiff and Respondent. Lori A. Fields, under appointment by the Court of Appeal, for Minor.
INTRODUCTION
Robert H. (the father) appeals from the juvenile courts order terminating his parental rights and placing his nine-year-old son, Jake H., for adoption. The father contends that the order is erroneous, because the evidence showed that he maintained regular contacts with Jake, and the benefits of those contacts outweighed the benefits of adoption. (Welf. & Inst. Code, § 366.26 , subdivision (c)(1)(A).) We affirm. We conclude that the juvenile court did not abuse its discretion in determining that the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTS AND PROCEDURAL HISTORY
Jake was removed from his parents custody in July 1995, when he was two years old, and placed in the care of Phyllis D. (Ms. D.), a single, licensed foster caregiver in Big River, California. The juvenile court found that Tami H. (the mother) abused drugs, which impaired her ability to provide Jake with regular care, adequate food, shelter, supervision, and protection. The father is a long-distance truck driver.
Family reunification services were terminated in February 1998. At a section 366.26 hearing in March 1998, Jake was placed in a legal guardianship with Ms. D. The parents parental rights were not terminated, however, because the juvenile court found that the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) applied. The juvenile court felt that Jake would benefit from continuing contacts with his parents, and adoption was therefore not in his best interests. Visitation was ordered in Ms. D.s discretion, and the case was dismissed.
In the fall of 2000, the parents filed a section 388 petition seeking to terminate the legal guardianship and return Jake to their care. That matter was referred to mediation, and in March 2001, it was agreed that the parents would have unsupervised weekend visits with Jake every other week.
In April 2001, Jake was removed from Ms. D.s custody, after she forced Jake to walk six miles along a road between their home and the Parker Bridge, while Ms. D. followed Jake in her car. It was cold and raining, and Jake, then seven years old, had a history of asthma. Ms. D. said she was showing Jake the consequences of misbehaving on the school bus. She did not believe she was abusing or endangering Jake. An officer with the California Highway Patrol intervened, and the matter was referred to the San Bernardino County Department of Childrens Services (DCS).
In May 2001, DCS filed a section 388 petition seeking to terminate the legal guardianship. Jake was placed in foster care in Victorville. DCS recommended that reunification services be offered to the parents, and that Jake remain in out-of-home care. DCS recommended "an extremely conservative approach to returning Jake to either his parents or guardian at this time." It noted that "the open hostility between the two families is very concerning. The pressure brought on the child from both families can and perhaps already has caused serious harm to Jake."
In June 2001, the juvenile court ordered reunification services for the father, the mother, and Ms. D. It ordered unsupervised visitation for the father and Ms. D., and supervised visitation for the mother.
From July 1995 through the spring of 2001, the father maintained regular contacts with Jake. He was very upset when he heard Jake describe how his feet were bruised after the walk to the Parker Bridge. Jake told the social worker that he wanted to visit both his parents, and Ms. D. He was afraid that if he went to live with his parents or Ms. D. he would never see the other family again. Jake told his foster family, "I just want a family."
In June and July 2001, DCS was concerned about Jakes relationship with Ms. D. The foster care social workers reported that following unsupervised visits with Ms. D., Jake would often appear depressed and sad, and withdraw from social interaction. He said negative things about his parents, and appeared confused about where he wanted to live. During unmonitored telephone conversations with Ms. D., Jake would nervously pace back and forth. The social workers concluded that Jake had been "triangled" in a conflict between Ms. D. and the parents, and recommended that future contacts with Ms. D. be monitored.
In August 2001, the juvenile court ordered that visitation between Ms. D. and Jake be supervised, because of demonstrated detriment. In September 2001, the juvenile court found that the parents had "substantially" complied with their reunification service plan, and returned Jake to the parents care. It ordered further reunification services for the parents, and monthly monitored visits between Ms. D. and Jake in a "therapeutic setting." At this point in time, Jake was saying he did not want to see Ms. D. The court trailed the hearing on DCSs section 388 petition.
By December 2001, Jakes parental placement was not working. The father and the mother had separated. Jake was living with his mother, and was not seeing his father very often. The mother and Jake were homeless, and moved to a new location nearly every night. The mother did not wash Jakes clothes and she sent him to school dirty, hungry, and unprepared. Jake was humiliated and exposed to ridicule by his peers, and often missed school. Jake told the social worker he did not want to live this way anymore.
School staff members said they felt physically intimidated by the mother. During interactions, the mother appeared nervous and agitated, and was unable to sit still. The mother refused mental health and substance abuse services.
DCS removed Jake from his parents care, and filed a section 387 petition for an alternative placement. The petition alleged that the mother had failed to provide a safe, stable home for Jake, and the father was unable to provide regular care for him. In January 2002, the juvenile court ordered Jake removed from his parents care, and returned to foster care. The mother was allowed supervised visitation, and the father and Ms. D. were allowed unsupervised visitation.
In March 2002, the juvenile court sustained the above referenced allegations of the section 387 petition. It ordered six months additional reunification services for the parents and for Ms. D. It warned all three adults that if Jake could not be placed with either family at the end of six months, it would consider a new permanent plan, including adoption. It authorized Jakes return to the parents or Ms. D. by approval packet, and set a section 366.26 hearing for September 11, 2002.
In February 2002, Ms. D. completed a 12-hour parenting class, as required by her service plan. Between April 5 and 14, 2002, Jake was on an extended visit with Ms. D. When he returned to his foster family, he cried and said he wanted to stay with Ms. D. He said he was going to "pray very hard" that he could return to Ms. D.s care. Ms. D. admitted she had exercised poor judgment in disciplining Jake. Jakes therapist recommended that he be allowed to live with Ms. D.
Meantime, the mother did not complete her required parenting class, refused to submit to drug testing, and was abusive toward the social workers. In April 2002, she tested positive for marijuana.
On April 11, 2002, a social worker spoke with the father. The father said he was angry that Jake was spending time with Ms. D. He expressed a willingness to look for a local trucking job so he could provide Jake with the necessary supervision, but only if he was assured that Jake would be placed with him. The father lived in Apache Junction, Arizona when he was not on the road driving his truck. He said he did not have time to complete any Interstate Compact on Placement of Children (ICPC) requirements. At this time, the fathers 15-year-old son, Jason (Jakes brother), was living with the fathers nephew because the father was unable to provide sufficient supervision for Jason.
ICPC (Fam. Code, § 7900 et. seq.) applies when a government agency, including the juvenile court, causes a child to be taken to another state for placement. It ensures that the appropriate authorities in a state where a child is to be placed receive complete information regarding the placement decision. (Fam. Code, § 7901.) Compliance with the ICPC is not mandatory, however, when a California court places a child with a parent residing in another state. (In re Johnny S. (1995) 40 Cal.App.4th 969, 971.)
As of August 21, 2002, the social worker had not had contact with the father since April 11, 2002. The social worker left several telephone messages for the father, but the calls were not returned. A registered letter sent to the fathers last known address on July 24, 2002, was returned, stamped addressee unknown. The foster mothers log showed that the father telephoned Jake nine times between February and August 2002, and visited three times, on March 22, March 23, and May 2, 2002.
In contrast, Jake had several extended stays with Ms. D. during the spring and summer of 2002. After the April 5 through 14, 2002, stay, Jake had two 2-day stays, two 3-day stays, another nine-day stay, a 12-day stay, and a 16-day stay. For each visit, Ms. D. drove 924 miles round trip from Big River to Victorville and back.
In a status review reported dated September 11, 2002, DCS recommended that Jake be returned to Ms. D. Jake was in good health, was doing well in school, and was seen as a "warm and friendly" child. He was, however, confused about having relationships with two families. He enjoyed visits with his father, and wanted to "continue some type of contact with [him]."
On September 11, 2001, the court ordered Jake placed in Ms. D.s home on an "extended visit." On October 28, 2002, a section 366.22 hearing was held. At this time, the father did not contest placement with Ms. D. Instead, his "real issue" was continued visitation. The court terminated reunification services for both parents, placed Jake in Ms. D.s care, and set a section 366.26 hearing. Visitation for the father was ordered to be unsupervised and arranged through Ms. D. The mother was to have no contact during the fathers visits.
The record does not indicate that the father filed a writ petition under California Rules of Court, rule 39.1B.
The section 366.26 hearing was held on March 13, 2003. An adoption assessment report described Jakes "enthusiastic" desire for adoption, and the warmth and affection between Ms. D. and Jake. A WIC report recommended termination of parental rights, no further contacts between Jake and his parents, and adoption by Ms. D. The social worker said she had not had contact with either of the parents since the October 28, 2002, hearing.
The father objected to the reports, based on his desire for continued visitation with Jake, and visitation between Jake and his three older brothers. Ms. D.s counsel pointed out that Jake had, and would continue to have, contact with his older brothers. Ms. D.s counsel also said that Ms. D. would allow Jake to visit both his parents if "amicable" arrangements could be made. Jakes counsel agreed that Jake had and should continue to visit his siblings, but noted that Jake had "expressed no desire to visit with his parents at this point." According to the WIC report, however, Jake said he "would like to continue some kind of contact" with his father and brothers. County counsel suggested that the matter of post-adoption visitation be referred to mediation.
Jakes older brothers were ages 21, 18 and 15. Jake had never lived with his older brothers.
The court responded to the visitation issue by noting that the focus was now on the minors needs, "And so the burden I think in those seeking visitation is to make it a positive experience for the child and something that the child wishes and enjoys and is consistent with his schedule and needs and not the needs of the parents in these matters." The court referred the matter of post-adoption visitation to mediation, terminated all parental rights, and ordered Jake placed for adoption. An adoption review hearing was set for June 11, 2003, and a post-permanency planning review hearing for September 15, 2003. This appeal followed.
DISCUSSION
"At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child." (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) "If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [five] specified exceptions [set forth in section 366.26, subdivision (c)(1)(A)-(E)]. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826 (Derek W.).)
The father contends that the juvenile court erred in failing to find that the exception set forth in section 366.26, subdivision (c)(1)(A) applied to his relationship with Jake. This is the "beneficial relationship" exception. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206 (Jerome D.).) It applies where termination of parental rights would be detrimental to the child because "the parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship." (§ 366.26, subd., (c)(1)(A); Derek W., supra, 73 Cal.App.4th at p. 826.)
The parent has the burden of proving that the beneficial relationship exception applies. (Derek W., supra, 73 Cal.App.4th at p. 826.) To do so, "the 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 childs life." (Id. at p. 827.)
The parent must also show that his or her 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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 parents rights are not terminated." (Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
"The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the "positive" or "negative" effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350 (Jasmine D.).)
"Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the childs need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.)
There must be a "compelling reason" for applying the beneficial relationship exception. (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a "quintessentially discretionary determination." Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) "Evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only "if [it] finds that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . ." [Citations.]" (Ibid.)
Here, the father did not meet his burden of proving that the beneficial relationship exception applied. The father and Jake have exhibited "a deep bond," and their relationship has been important and beneficial to Jake. But the relationship "bears no resemblance to the sort of consistent, daily nurturing that marks a parental relationship." (Derek W., supra, 73 Cal.App.4th at p. 827.)
Jake was removed from the fathers home in 1995 when Jake was two years old. The father has since remained unable or unwilling to provide a stable home for Jake. He was unwilling to cooperate with an ICPC investigation if it was going to take any of his time. His contacts with Jake, while somewhat consistent since 1995, had waned during the months preceding the March 13, 2003, section 366.26 hearing, when Jake was nine years old. The record shows only three visits and nine telephone contacts between February and August 2002. He visited Jake only once between September 2002 and March 13, 2003. He also failed to stay in contact with the social worker, or return any of her many telephone messages.
On the other hand, adoption would provide Jake with a stable, secure home, and the sense of belonging that he needs. Ms. D. has exhibited a strong commitment to Jake, and the two enjoy a strong, parent-child bond. Jake expressed his wish to be adopted by Ms. D., and has done very well in Ms. D.s care.
The father argues that the present case is substantially similar to Jerome D., supra, 84 Cal.App.4th 1200, 1207, where Division One of this court found insufficient evidence to support the juvenile courts determination that the mother did not meet her burden of proving a beneficial relationship. We disagree. Jerome D. is distinguishable on its facts.
In Jerome D., the child had lived with his mother for six and one-half of his nine years, and had expressed his wish to live with her again. For at least two months, the child had unsupervised visits in the mothers home. He called her "mom" or "mommy," and there was no woman in the childs life other than the mother. (Jerome D., supra, 84 Cal.App.4th at p. 1207.) The child had been placed with and was likely to be adopted by Mr. E., the mothers former boyfriend. The child was "the odd child out" in Mr. E.s home. (Id . at pp. 1205-1206.)
In reversing the juvenile court, the Jerome D. court reasoned that there was "no evidence that the security and stability of [the childs] placement with Mr. E. would have been jeopardized if Mothers parental rights had remained intact. A permanent plan of guardianship or long-term foster care would have allowed Jerome to remain in that home yet maintain his relationship with Mother. It would have prevented his position as the odd child out in Mr. E.s home from becoming entrenched by a cessation of visits and the loss of his mother . . . . Additionally, the courts finding that Jerome would not benefit from a continued relationship with Mother is inconsistent with its immediately ensuing order allowing unsupervised visits between Mother and Jerome." (Jerome D., supra, 84 Cal.App.4th at p. 1208.)
There are indeed similarities between the present case and Jerome D. The father is the only father figure in Jakes life and has had unsupervised visits with Jake since 1995. And arguably, the security and stability of Jakes placement with Ms. D. would not be jeopardized if Ms. D. were to continue as Jakes legal guardian, and the father did not lose his visitation rights. Indeed, these arrangements remained in place from July 1997 through April 2001.
But the evidence developed during the instant dependency proceedings showed that the former, legal guardianship arrangement was not working for Jake. Ms. D. and Jakes parents often argued about visitation. One social worker said Jake was "triangled" between Ms. D. and his parents. Jake told his foster family he "just wanted a family."
The WIC report states that "it is detrimental to Jakes mental well being to continue being pulled back and forth between these two families." Adoption will end this problem, and provide Jake with a single, stable family. Additionally, there is no evidence that Jake is the "odd child out" in Ms. D.s home. Instead, the WIC report states that Jake "showed excellent bonding and attachment to [Ms. D.]."
Thus here, in contrast to Jerome D., the juvenile court reasonably determined that the benefits to Jake of the fathers relationship did not outweigh the benefits to Jake of being adopted.
DISPOSITION
The juvenile courts order terminating the fathers and the mothers parental rights and placing Jake for adoption is affirmed.
We concur: McKinster Acting P.J. and Gaut J.