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Kern Cnty. Dep't of Human Servs. v. David J. (In re N.J.)

California Court of Appeals, Fifth District
Aug 11, 2023
No. F085541 (Cal. Ct. App. Aug. 11, 2023)

Opinion

F085541

08-11-2023

In re N.J., a Person Coming Under the Juvenile Court Law. v. DAVID J., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Alexandria Ottoman, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Kern County No. JD142163-00. Christie Canales Norris, Judge.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Alexandria Ottoman, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

THE COURT [*]

David J., father of minor, N.J., appeals from the juvenile court's order terminating his parental rights (Welf. &Inst. Code, § 366.26). Father's sole claim on appeal is that the court erred by declining to apply the beneficial parent-child relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)). Finding no error, we affirm the order.

All further undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

The Kern County Department of Human Services (department) filed a petition on behalf of then two-year-old N.J., on June 24, 2021. The petition alleged N.J. came within the juvenile court's jurisdiction under section 300, subdivision (b) (failure to protect) due to mother's failure to provide adequate food or shelter and risk resulting from her untreated mental health issues and substance abuse, as well as under section 300, subdivision (j) (sibling abuse) due to a previous dependency case involving N.J.'s older half siblings.

N.J.'s siblings-J.C. and B.J.-were also subjects of the underlying dependency proceedings but no issue on appeal pertains to them. We include facts pertaining to them only to the extent they are relevant to the issue on appeal.

During the department's initial investigation, mother reported she had previously lived in Washington with father but moved to California with the children due to several domestic violence incidents. She reported father was violent toward her and the children, and she and the children had a restraining order against him. The department discovered two prior child welfare referrals alleging domestic violence perpetrated by father from 2017 and 2018. Father had prior drug-related misdemeanor convictions from 2014. The department was unable to make contact with father prior to the detention hearing.

At the detention hearing conducted on June 25, 2021, mother was examined as to paternity; she testified father was at the hospital when N.J. was born, and they lived together with N.J. for about a year. During that time, father provided financial support for N.J. N.J. had not seen or talked to his father since March 2021. The juvenile court named father presumed father of N.J., as well as his older sibling B.J. The matter was trailed so father could be appointed counsel.

On June 28, 2021, the trailed detention hearing, father was appointed counsel. N.J. and his siblings were ordered detained from mother. Father, who still resided in Washington confirmed there was a no contact restraining order with mother and the children listed as the protected parties. Father was not ordered visitation at that time.

At the jurisdiction hearing conducted on October 6, 2021, the juvenile court found N.J. and his siblings were described by section 300, subdivisions (b) and (j). Father's attorney requested the court order supervised visits for father. The department did not object, and the court set a status review hearing to address visitation, so that it would have time to review the matter as there were previous domestic violence allegations.

On October 27, 2021, at a status review hearing on father's request for visitation, the juvenile court ordered supervised visits for father.

Father, who still resided in Washington, began having virtual visits with N.J. and B.J. Father called for the visits on time and attempted to engage with the children by reading to them or playing videos for them. N.J. frequently left the virtual visits early.

In December 2021, father moved to California and began having in person visits with the children.

The disposition hearing was conducted on January 7, 2022. Father testified that he had moved to California in order to reunify with the children. He was working on enrolling in voluntary parenting classes and had almost completed a domestic violence for perpetrators course "through the Washington Court." He was living in a motel and working on fixing up a home that belonged to his father where he hoped to live with the children. He had arrived in California on December 21, and had had his first in-person visit with the children. He stated the visit went well; it was "hard" for the children but he "get[s] that is just the age probably not being around [him] for a while" as he "didn't have them in Washington with" him. He was requesting his children to be returned to him.

At the conclusion of the hearing, the juvenile court ordered the children removed from mother and bypassed her for reunification services. The court ordered reunification services for father, including counseling for parent/child neglect and domestic violence as a perpetrator services. The court also ordered father to submit to random drug testing and enroll in substance abuse counseling upon receipt of a positive test.

In the department's six-month status review report dated June 24, 2022, it was reported father had 33 opportunities for visitation and only missed three visits, which he cancelled in advance. It was further reported, "The visitation quality is consistently positive and [father] demonstrates patience and restraint if any behavioral issues arise during visits." Summaries of visits that took place following the disposition hearing were mostly positive. Father would bring food and activities for the children, and the children appeared happy to see father.

Father began having unsupervised visits in July 2022, and the children were observed to excitedly greet father and reported having fun at visits.

On July 15, 2022, mother made an allegation of physical abuse against father. A police report was prepared and forwarded to the district attorney's office for review. Due to the allegation, the department suspended unsupervised visits and implemented "loosely monitored" visits for approximately three weeks. Once the police report was subsequently provided to the department, the department re-implemented supervised visits. Supervised visits were reported to go well, with the father bringing food and activities to enjoy with the children and the children being happy to see father. On August 23, 2022, the domestic violence case was rejected by the district attorney's office "as there was no evidence a crime was committed and the evidence suggested that the victim should instead be charged with ... [f]iling a [f]alse [p]olice [r]eport."

At the end of August 2022, father had an encounter with law enforcement during which he was found to be in possession of methamphetamine. The police report was forwarded to the district attorney's office for review for charges of possession of a controlled substance. Father denied drug use. In a supplemental report dated September 8, 2022, the department reported that since the disposition hearing, father had provided six negative drug test results, five presumptive positive test results, one excused test, one positive test for methamphetamine, one pending test, and he refused to test on one occasion.

At the six-month review hearing conducted on September 13, 2022, father's attorney made an offer of proof that if father were to testify he would testify he acknowledged and took ownership of his lapse in judgment that resulted in his positive methamphetamine test. Father had attended a screening for substance abuse treatment the day before the hearing and would enroll in treatment that day.

In ruling, the juvenile court expressed concern that father had a history of presumptive positive tests in addition to the positive test and recent arrest, while noting it was not putting much weight on the domestic violence restraining order. The court found there was not a substantial probability that the children would be returned to father within six months, ordered father's reunification services terminated, and set a section 366.26 hearing.

On October 26, 2022, minor's counsel filed a section 388 petition requesting the juvenile court terminate visitation with father. The petition alleged N.J. "is suffering emotional detriment and behavioral issues following visits[.] He has been acting out at school and at home following visits. He is scared to attend visits with father and begs not to go. The therapist believes the visits are harmful and is prepared to testify. He suffers night terrors and negative behaviors." The court set an evidentiary hearing on the petition.

The department filed a supplemental report addressing the minor's petition, recommending the petition be denied as to father's visits. The report indicated that the foster family agency social worker involved in the case reported that N.J. and his sibling's behaviors increase when they have visits with father, including having nightmares and becoming more defiant. The foster family agency social worker further reported that N.J. refused to attend a visit with father in October 2022.

The supplemental report further indicated N.J.'s care provider noted concerns with N.J. having night terrors and other behavioral issues after visits. The care provider stated that after visits with father, N.J. began having outbursts at school and home. According to the care provider, N.J. was good at expressing his wants, needs, and feelings, but after N.J. began having unsupervised visits with father, he began stuttering. Further, N.J. would often say he did not want to go to his visit but would nonetheless comply with the social worker who transported him to the visit. The care provider further reported that when they asked N.J. why he did not want to go he "w[ould] 'literally stop talking and shuts down, his eyes glaze over' and won't say why he does not want to have visits or if he is scared." According to the care provider, N.J. never exhibited that type of behavior in any other scenario. The care provider believed that N.J. was suffering emotional detriment and behavioral issues following visits. On one occasion, N.J. begged not to be taken to a visit.

The department's report set forth that the department social worker had observed father's visits with the children to be mostly positive. When the children displayed behaviors, father responded appropriately. The department social worker who regularly transported N.J. to his visits reported N.J. always stated he wanted to visit with father and since September 2022, when the social worker began transporting him, he had never resisted being transported. According to the social worker, N.J. had not shown fear or hesitation to go to father and had been observed to enjoy visits with father, and father had appropriately parented N.J. during the visits. The quality of the visits appeared to be "very good."

The report further indicated that N.J.'s therapist was present at a recent child and family team meeting but did not raise any concerns with visits. The therapist noted improvement in N.J.'s ability to converse with others, advocate for himself, and interact with his peers and that he was doing well in his placement. The department social worker later contacted N.J.'s therapist, who disclosed due to professional ethics she was unable to share whether N.J. was negatively affected by contact with the parents. Though N.J.'s therapist received a subpoena to testify, she had not received approval from her supervisor to testify and share information about N.J.'s case.

The department's section 366.26 report dated December 21, 2022, recommended that adoption be selected as N.J.'s permanent plan and that parental rights be terminated. The report indicated father had consistently visited by attending 78 out of 104 possible visits. The report further indicated father was attentive and interacted appropriately with the children during visits. N.J. would react to father with a friendly greeting and enjoyed the visits with father. The social worker authoring the report ultimately opined, however, "the security and permanency of adoption do outweigh any detriment caused by termination of the father's parental rights. However, it is obvious that there is a significant relationship between [N.J.] and ... father, which is apparent during the visits."

N.J.'s care providers wished to adopt him. N.J. had been placed with them since July 2021, and he looked to them as his own parents. The care providers wished to provide N.J. with a permanent, safe, secure, and stable home, and stated they loved N.J. and that he fits into their family. They were willing to maintain contact between N.J. and his siblings. When N.J. asked who he would like to live with, he said his "mom and dad," referring to his care providers.

The section 366.26 hearing was conducted on January 11, 2023, with the juvenile court to consider the minor's section 388 petition at the same time. Father testified that prior to N.J.'s detention at two years old, he and N.J. "were really close." Father explained he would comfort N.J., and they would go to the park together. When father lived with N.J., he provided emotional support to him by comforting him when he cried, preparing food for him and feeding him, reading to him, and saying "I love you" before bed. Father stated N.J. was "everything" to him. He lived with N.J. until mother left Washington for California in March 2021. Father maintained mother "just kind of up and left" and that she claimed there was a domestic violence incident which resulted in a restraining order. Father remained in Washington until he was able to move to California to be there for N.J. and visit with him during the dependency proceedings. The only reason father did not have contact with N.J. was because N.J. was a protected party on the restraining order. Before N.J.'s detention, father's relationship with N.J. was "really good" despite not seeing him for the period of time between mother bringing him to California and visits beginning.

Father testified he had attended almost every visit except a few that he notified the social worker ahead of time he could not attend. At visits, he and N.J. would put together puzzles, color, and read. Father brought food to the visits and made sure the children used the bathroom and that he had changes of training pants for potty training. N.J. referred to father as "dad." N.J. smiled at visits and never appeared to be afraid of father. N.J. seemed upset to leave visits. Father has observed N.J. hide toward the end of visits, which father perceived as N.J. trying to make them last longer. Father felt he and N.J.'s bond was strong and that his parental rights should not be terminated.

Following father's testimony, his counsel requested the court apply the beneficial parent-child relationship exception to termination of parental rights and implement a legal guardianship as N.J.'s permanent plan.

The court declined to apply the exception. In ruling, the court acknowledged that the department and father's counsel had asserted there was a bond between father and N.J. As to the first prong of the beneficial parent-child relationship exception analysis- whether father regularly and consistently visited-the court indicated that the department was "generous" by asserting that father had regularly and consistently visited and that "[e]ven if for some reason [the court] were to find [father] visited regularly and consistently," it nonetheless did not find the second prong of the analysis-that N.J. had a substantial, positive, emotional attachment to father. The court noted father loved N.J. and had a strong bond with him, but the court was "struggling" with whether N.J.'s attachment to father was positive. The court noted, "[N.J.]'s struggling in several areas. He's struggling at school with behaviors. He's shown regression with potty training. He struggles with behaviors in the caregiver's home after visits. And he's demonstrated night terrors that the caregiver has described. I think this is a very confusing time for [N.J.] But I don't think that [father's counsel] and her client have met their burden to show that it is a substantial, positive, emotional attachment." Finally, the court turned to the third prong of the analysis-whether termination of parental rights would be detrimental to N.J. The court noted it had to "almost engage in some type of speculation of what the future would look like for [N.J.]" The court explained that "what's happening right now" with N.J. "isn't a long-term solution." The court added that N.J. was "struggling in school with potty training, with behaviors in the home and with his nightmares" and "[i]f we continue the course that we're on, the court is very afraid of how life would look like for [N.J.]" The court opined that if parental rights were not terminated "the struggles would continue" and N.J.'s "behaviors would worsen." The court concluded that father had not met his burden to show any detriment of severance of the relationship would outweigh the benefits of adoption.

The court terminated parental rights and ordered adoption as N.J.'s permanent plan. In light of the court's ruling, minor's counsel withdrew the section 388 petition.

DISCUSSION

At a section 366.26 hearing, when the juvenile court finds by clear and convincing evidence the child is adoptable, it is generally required to terminate parental rights and order the child be placed for adoption unless a statutory exception applies. (§ 366.26, subd. (c)(1).) One of the statutory exceptions is the beneficial parent-child relationship exception, which applies when "[t]he court finds a compelling reason for determining that termination would be detrimental to the child" where "[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 California Supreme Court has clarified in In re Caden C. (2021) 11 Cal.5th 614 (Caden C.) that there are three elements a parent has the burden to prove by a preponderance of the evidence to justify the application of the beneficial parent-child relationship exception: (1) "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "that the child has a substantial, positive, emotional attachment to the parent-the kind of attachment implying that the child would benefit from continuing the relationship"; and (3) "that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Id. at pp. 632-633, 636-637.)

We review the first two elements-whether the parents regularly and consistently visited and whether a beneficial relationship exists-for substantial evidence and the third element-whether "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home"-for abuse of discretion. (Caden C., supra, 11 Cal.5th at pp. 636, 639-641.) Under the substantial evidence standard of review, "a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' [Citation.] The determinations should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (Id. at p. 640.) "Review for abuse of discretion is subtly different, focused not primarily on the evidence but the application of a legal standard. A court abuses its discretion only when '" 'the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'" '" (Id. at p. 641.)

The Caden C. court explained" 'there likely will be no practical difference in application of the two standards,'" but "[a]t its core, the hybrid standard we now endorse simply embodies the principle that '[t]he statutory scheme does not authorize a reviewing court to substitute its own judgment as to what is in the child's best interests for the trial court's determination in that regard, reached pursuant to the statutory scheme's comprehensive and controlling provisions.'" (Caden C., supra, 11 Cal.5th at p. 641.)

In determining the second element-whether the children would benefit from continuing the relationship-the court may consider factors such as" '[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs,'" as well as "how children feel about, interact with, look to, or talk about their parents." (Caden C., supra, 11 Cal.5th at p. 632.) In determining the third element, courts look at "whether it would be harmful to the child to sever the relationship and choose adoption." (Id. at p. 633.) Courts must "determine ... how the child would be affected by losing the parental relationship-in effect, what life would be like for the child in an adoptive home without the parent in the child's life.... [¶] _ That subtle, case-specific inquiry is what the statute asks courts to perform: does the benefit of placement in a new, adoptive home outweigh 'the harm [the child] would experience from the loss of [a] significant, positive, emotional relationship with [the parent?]'" (Ibid.) Courts may consider whether the child will experience effects such as "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression," as well as how a "new, stable home may alleviate the emotional instability and preoccupation leading to such problems, providing a new source of stability that could make the loss of a parent not, at least on balance, detrimental." (Ibid.)

Here, the juvenile court found that father had not met his burden to prove that any of the three elements had been met. We conclude the court's factual findings were supported by substantial evidence, and its ultimate conclusion was not an abuse of discretion. N.J. was very young at the time of removal and had not seen father for several months preceding removal. While visits between N.J. and father were reported as being generally positive, and there was some evidence N.J. enjoyed them, this evidence was not so overwhelming as to compel the juvenile court to find N.J. had a substantial, positive, emotional attachment to father. Rather, there was conflicting evidence as to whether N.J. emotionally benefitted from spending time with father. The social worker who transported N.J. to visits with father reported he always appeared willing to go, though N.J.'s caregivers had reported he did not like visiting with father, had asked not to go, and had developed behavioral issues resulting from the visits. In its ruling, the juvenile court appeared to give the most credence to statements by the care providers presented in the department's reports; this was reasonable as the care providers were likely the people spending the most time with N.J. Further, N.J. generally appeared able to leave visits without incident and expressed that he wanted to live with his care providers, an indication that he did not substantially suffer due to being away from father. Based on the totality of the evidence, the juvenile court could reasonably conclude that any detriment N.J. would have suffered from the severance of his relationship with father was not outweighed by the benefits of adoption.

We note there was a no contact restraining order in place protecting N.J. from father at the outset of the dependency proceedings and some evidence that N.J.'s time living with father was scored with incidents of domestic violence. However, during the dependency proceedings, mother made what was deemed a potential false accusation against father, and the juvenile court did not appear to give any weight to the accusations of domestic violence or the existence of the restraining order at the outset of the proceedings.

In his briefing, father highlights many of the positive aspects of his and N.J.'s visits, and at one point, notes: "While it was reported ... that [N.J.] had behavioral issues after visits with [father] and experienced night terrors . . ., no expert testimony, either by [N.J.'s] therapist or by a competent expert psychologist, was ever presented to the juvenile court as to the cause of this" and speculates that "[i]t could as easily have been due to [N.J.'s] strong bond with [father] being interrupted by his return to placement and the threat of permanence with the caretake[r]s as anything else." Father adds, "But no competent inquiry was conducted, whether by sua sponte bonding study or testimony of [N.J.'s] therapist, or otherwise." This line of reasoning by father ignores that the party requesting the court to apply the beneficial parent-child relationship exception bears the burden to prove the exception applies, including that the severance of the relationship would cause detriment to N.J., and father's argument unintentionally demonstrates why the court's ruling was correct.

Here, we find no deficiencies in the department's reporting; they provided several summaries of visits, discussed N.J.'s relationship with father, and presented their conclusion to the juvenile court that N.J. would not suffer significant detriment from the severance of the relationship. Father provides no authority that the department was required to provide expert testimony to prove the exception should not apply. To the contrary, if father had evidence that N.J. would suffer significant detriment, or evidence of an alternative explanation for N.J.'s behaviors after visits, he was the party responsible for presenting it. Notably, father did not subpoena any party to speak of the effect of the potential termination on N.J.'s well-being. Father's only evidence was his testimony that showed the court his perspective. While his testimony was certainly relevant to the court's determination, he offered no third-party perspective of how the termination would affect N.J. to contrast the department's recommendation. As such, the court reasonably relied primarily on the information provided by the department to determine what N.J.'s life would be like without his relationship with father, who, again, opined any detriment N.J. would suffer did not outweigh the benefit of adoption.

Father's suggestion that the juvenile court was required to order a bonding study sua sponte is unsupported by any authority. In support of his contention, he cites a portion of Caden C. where our Supreme Court advised trial courts to" 'seriously consider, where requested and appropriate, allowing for a bonding study....'" Expressly in the quote cited by father is the condition that the bonding study be "requested" and there was no such request made in the present case, nor does father assert there was.

Father also relies on In re M.G. (2022) 80 Cal.App.5th 836 (M.G.) to support his contention that this court should direct the juvenile court to order a bonding study, but M.G. is inapposite and does not assist father. In M.G., the appellate court reversed an order terminating parental rights and remanded the matter for a new hearing where the parents had requested a bonding study, which the court relied on to determine whether the beneficial parent-child relationship exception applied. The appellate court concluded the bonding study was "inexplicably terse and analytically uninformative," given some of the particular circumstances of the case and that it engaged in improper comparison between the parents and the child's current caregivers and failed to evaluate the emotional bond between the parents and the child. (Id. at pp. 845, 849-851.) M.G. in no way stands for the proposition that father suggests it does-that we must direct the juvenile court to order a bonding study where none was requested below.

Father also makes a number of generic arguments that do not appear to have any application to the present case. First, father asserts that "the juvenile court is not to compare the parent's attributes as a custodial caregiver relative to those of the prospective adoptive parents or the suitability of a prospective adoptive home." Father cites no portion of the record where the juvenile court did such a thing, nor can we find any.

Next, father contends, "Citing to In re Autumn H. (1994) 27 Cal.App.4th 567, the juvenile court attempted below to relegate father to a mere 'friendly visitor' to attempt to justify termination of parental rights." The page number of the record father cites to support this assertion does not do so and does not even contain any part of the juvenile court's ruling. We can locate no reference made by the juvenile court to father being a "friendly visitor."

Father also contends "[m]issed drug tests or even positive drug tests were not relevant," but cites to no portion of the record where the juvenile court relied on father's drug testing as a basis to decline to apply the beneficial parent-child relationship exception, nor can we find one.

Finally, father contends the juvenile court failed to apply Caden C., despite the fact that the court explicitly cited to the case in its ruling. To support his contention that the matter must be remanded for consideration of the issues in light of Caden C., father relies only on cases where parents appealed from orders terminating parental rights made before Caden C. was decided, which are inapposite. (In re J.D. (2021) 70 Cal.App.5th 833; In re B.D. (2021) 66 Cal.App.5th 1218.) We reject father's contention. The juvenile court in the present case was well aware of Caden C., demonstrated by the fact that it cited the case accurately and thoroughly in its ruling, and father has provided no basis to remand the matter for the court to conduct further analysis.

In conclusion, for the reasons we have set forth, the juvenile court's findings and decision to decline to apply the beneficial parent-child relationship to termination of parental rights were supported by the evidence and not an abuse of discretion, and the court did not err.

DISPOSITION

The juvenile court's January 11, 2023 order terminating parental rights is affirmed.

[*] Before Levy, Acting P. J., Meehan, J. and DeSantos, J.


Summaries of

Kern Cnty. Dep't of Human Servs. v. David J. (In re N.J.)

California Court of Appeals, Fifth District
Aug 11, 2023
No. F085541 (Cal. Ct. App. Aug. 11, 2023)
Case details for

Kern Cnty. Dep't of Human Servs. v. David J. (In re N.J.)

Case Details

Full title:In re N.J., a Person Coming Under the Juvenile Court Law. v. DAVID J.…

Court:California Court of Appeals, Fifth District

Date published: Aug 11, 2023

Citations

No. F085541 (Cal. Ct. App. Aug. 11, 2023)