Opinion
F087716
10-01-2024
In re E.B. et al., Persons Coming Under the Juvenile Court Law. v. F.B. et al., Defendants and Appellants. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Neale Gold, under appointment by the Court of Appeal, for Defendant and Appellant F.B. Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant J.B. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County. Nos. JD143009-00, JD143010-00 Christie Canales Norris, Judge.
Neale Gold, under appointment by the Court of Appeal, for Defendant and Appellant F.B.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant J.B.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Parents, F.B. (mother) and J.B. (father), appeal the termination of their parental rights following a Welfare and Institutions Code section 366.26 hearing and the juvenile court order finding clear and convincing evidence their children E.B. and B.B. were likely to be adopted. Following our review, we affirm the orders entered by the court.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL SUMMARY
This procedural and factual summary is largely taken from the opinion issued by this court on February 1, 2024, in case No. F087159, in response to separate writ petitions brought by mother and father challenging the findings of the juvenile court at the end of a contested jurisdiction/disposition hearing. That contested hearing resulted in minors E.B. and B.B. being declared dependents of the court, denying mother and father further reunification services, and setting a section 366.26 hearing to consider a permanent plan for the children. (J.B. and F.B. v. Superior Court (Feb. 1, 2024, F087159) [nonpub. opn.].)
On our own motion, case Nos. F087168 and F087159 were ordered consolidated under case No. F087159 and all documents were filed in that case. We now take judicial notice of the opinion in F087159 pursuant to Evidence Code sections 452, subdivision (d) and 459.
"In February of 2022, the Kern County Department of Human Services (department) filed a section 300 petition alleging [E.B.] and [B.B.] were at risk of harm in mother and father's care due to their failure to appropriately meet their needs, as well as the medical needs of an older child, half sibling [D.S.] The petition alleged the children were living in an 'uninhabitable' residence, with smeared feces on the walls and 'clumps of feces' in various areas on the floors, along with rotting food, trash, toys, and dirty clothing. The petition further alleged mother had not gotten medical treatment for [D.S.], who has Down Syndrome, and had sent him to school with symptoms of vomiting, fever, tiredness, a stomachache, and an infected and leaking eye. He had been diagnosed with COVID-19 in January and now suffered from severe pneumonia. [D.S.] exhibited extremely poor hygiene.
"[D.S.'s status was] not at issue in [the] writ; he is mother's child by another father and turned 18 prior to the setting of the section 366.26 hearing."
"Detention
"At the detention hearing [on] February 16, 2022, mother and father were appointed counsel. Father was elevated to presumed father status. The children were detained and supervised visits ordered. The jurisdiction and disposition hearing was set for April 1, 2022.
"Jurisdiction/Disposition
"At the hearing [on] April 1, 2022, mother and father submitted on the matter and the allegations of the petition were found true. The matter was continued to May 6, 2022, then to June 24, 2022, and then to July 26, 2022, on motion of county counsel due to Indian Child Welfare Act (ICWA) issues.
"On July 26, 2022, the juvenile court found the ICWA did not apply, found the children to be dependents, and out-of-home placement appropriate. Mother and father were both ordered to participate in counseling for parent/child neglect and to obtain a medical health evaluation and follow through on recommendations. Twice weekly supervised visits were ordered.
"A six-month review hearing was scheduled for January 26, 2023.
"Mother S Section 388 Petition
"On October 10, 2022, mother filed a section 388 petition, asking for return of the children to her care under the provisions of family maintenance services as she had completed the components of her reunification plan, cleaned her home, was actively working to find different housing, and the children's placement in school and residence were 'destabilized' in foster care. A hearing was scheduled for November 17, 2022, and subsequently combined with the six-month review [on] January 26, 2023.
"Six-Month Review Hearing
"The report prepared for the six-month review stated mother had completed 20 of 26 child neglect classes, was enrolled in therapy (although her attendance lacked consistency), was seeking housing, and was looking for work. Mother stated she had not been to the career services center at the department, but instead wanted to work at a theme park in Los Angeles County. Mother stated she was not separated from father, but would prefer 'he leave [her] first.'
"Father completed his 26-week parenting and neglect class at the end of August 2022; he completed a mental health assessment in May of 2022, but did not follow through and his case was closed. Father relayed instances of mother's anger toward him, due to his 'female friends,' including mother smashing the television with a baseball bat. He did not know if he would continue in the marriage, as he wants to have an open relationship with another woman, and mother did not approve. Father completed a mental health assessment in November of 2022, and it was recommended that he receive individual counseling and couples counseling, if he intended to stay with mother, although he had not yet started.
"The caregiver reported that mother and father did not put much effort into keeping in contact with the children and, when they are together, did not set appropriate boundaries for the children and discussed 'adult issues,' such as divorce, with them. Mother and father visited the children regularly, but were observed sharing 'personal problems' with the children. Father was overheard calling [E.B.] 'ugly girl' and 'fat' and talking about his 'lady friend' during visits.
"At a home visit on November 15, 2022, the social worker reported that another family, consisting of a mother, father, four children, and a dog, were living in one of the bedrooms of mother and father's home. Mother and father were informed that no children were allowed in their home as long as mother and father had an active CPS case. Mother stated she knew that, but that it was father's idea as he just wanted to 'help people.' The family had been there three or four weeks.
"The department recommended reunification services for mother and father be continued.
"At the six-month review hearing, the juvenile court found mother's progress had been moderate and father's progress minimal. Reunification services were continued and a 12-month review hearing set for March 30, 2023. The section 388 petition was denied.
"12-Month Review
"The report prepared for the 12-month review stated mother was now partially meeting her mental health assessment and complying with the recommendation, as she was consistent in attending sessions. She did complete the child neglect parenting classes and visited the children regularly. Father was not attending counseling services, but he did complete his parenting classes and he was visiting the children. It was recommended that reunification services be continued.
"At the 12-month review hearing [on] March 30, 2023, the juvenile court found mother had made acceptable efforts and availed herself of the services provided; father had not as he had not yet completed his mental health assessment and recommended treatment. Reunification services were continued and an 18-month review hearing set for September 27, 2023.
"Additional Section 388 Petitions
"On July 25, 2023, father filed a section 388 petition, requesting that the children be returned to him under the provisions of family maintenance services as he had completed his case plan. The juvenile court ruled that a hearing on the petition be heard August 31, 2023. A continuance was granted to September 27, 2023.
"On September 12, 2023, mother filed a second section 388 petition, requesting that the children be returned to her ... with family maintenance services. Attached to the petition were photographs showing, inter alia, neat and tidy bedrooms. The juvenile court ruled that a hearing on the petition would take place on September 27, 2023, at the time of the 18-month review.
"18-Month Review
"A supplemental social study to provide an update on [B.B.] was filed by the department on September 14, 2023. The report stated [B.B.], who recently began weekly counseling sessions, was diagnosed with ADHD, conduct disorder, and anxiety disorder in June of 2023. The most recent psychotropic medication order for him was dated July 13, 2023. [B.B.] had earlier been diagnosed with autism and behavioral issues in 2016 and was receiving regional services. He had an individualized education plan for speech delay and autism and his speech had improved. The caregiver had been actively working with [B.B.] on his temper tantrums and reminders to use the restroom to avoid accidents and help with his tendencies to get easily frustrated. The caregiver was working with [B.B.] on being able to verbalize his feelings.
"The report prepared for the 18-month review hearing stated that both mother and father completed a 26-week parenting course; mother was consistent with her mental health appointments, and father had met his mental health services goals and treatment. Visits with the children were going well. However, recent home inspections revealed the home to be cluttered with dirty dishes and food everywhere, as well as prescription pill bottles in the kitchen and living room. Mother was not aware that [B.B.] had been diagnosed with ADHD and autism, and she was not aware of the medications he took. The department was concerned about mother and father's ability to care for [B.B.'s] special needs, as well as [E.B.'s] concerns that she would have to parent [B.B.] due to mother and father's inability to do so, as she had had to do prior to dependency proceedings. The children both expressed a desire not to return home, but to remain with their caregivers.
"[E.B.] was interviewed and described visits with mother and father as 'so-so,' as they repeatedly asked her if she wanted to come back home. [E.B.] disclosed that she did not want to return to mother and father's home as she did not want to continue to parent [B.B.]. The caregiver stated that [E.B.] had voiced similar concerns to her, including that mother and father made [E.B.] chase [B.B.] around and take care of him during supervised visits. The caregiver also reported that [B.B.] verbally expressed his desire not to return home.
"The department recommended that services be terminated for both mother and father[.] Although mother and father had participated in the case plan, the department opined that they were not able to care for [B.B.'s] special needs and were concerned about [E.B.'s] fears that she would again be forced to parent [B.B.]. The report noted the children's desire not to return home.
"The combined hearings were continued to November 8, 2023. At that time, the department filed a supplemental report chronicling several supervised visits in September of 2023. Visits on September 6, 7, and 13, 2023, went well. Mother and father canceled the visit on September 15, 2023, due to illness. On September 16, 2023, [E.B.] informed her caregiver that she did not want to go to visits with mother and father as they were telling her she needed to tell her attorney that she wanted to go home; [E.B.] refused to attend the scheduled September 21 and 27, and October 4, 2023, visits.
"Father expressed at one point that he did not know why [B.B.] was taking medication, as he seemed fine without it. The caregiver reported that [B.B.'s] medications helped him focus and helped with his behavior. He was wetting the bed after visits.
"At the November 8, 2023, hearing, [E.B.] testified outside the presence of mother and father that she would not feel safe living with them and, if she returned home, she would have to resume caring for [B.B.], as she had to do at visits. While [E.B.] testified that she loved her mother and father, she did not feel safe with them and, 'somethings that they say ... seems, like, it's fake and a lie.' Prior to being removed from mother and father's home, [E.B.] stated she cared for both [D.S.] and [B.B.]. At the caregiver's home, she felt like she could live as a 'kid.'
"While mother and father's counsels both requested that the children be returned to their care, counsel for the children stated there was 'clearly no evidence that it's in the best interest of the minor[s] to return home.' Counsel noted [E.B.'s] insistence that she did not want to return home as she had not seen a change in her parents, as well as [B.B.'s] health and behavioral issues. Counsel for the children also noted that father had wanted to leave visits early or change the time of the visits, and had to be reminded that the goal was to increase not decrease visits.
"The record indicates this occurred in late May of 2023."
"The department concurred with children's counsel. The department argued that, while mother and father completed components of their reunification plans, 'after 18 months [they] don't quite have the insight that they need to maintain a safe home and to actually understand and provide for the needs of the children.'
"In its ruling, the trial court stated:
'This is probably one of the more difficult cases because the parents have participated in their case plan, the visits generally have been going well although we know that [E.B.] has not been going to the visits. And we did hear from [E.B.] today, and that was helpful to the Court. What is hard-what is hard for me to get pas[t] at this point is that September 12th conversation. It wasn't a CFTM/ I think that is w[h]ere I was a little confused. It was a face-to-face conversation between the social worker and [mother]. And the fact that she was unaware that [B.B.] was diagnos[ed] with ADHD and Autism, was not aware of what medication he was taking. Also this was not a dirty home case, but really a failure to provide medical care to [D.S.], and so I did give that contact a lot of weight on that September 12th. And the [d]epartment does have to show by a preponderance of the evidence that a return of the children to the physical custody of the parents would create a substantial risk of detriment to the children's safety, protection or physical or emotional well-being. I think for [E.B.], the detriment would be for her emotional well-being. She has articulated why she doesn't want to go home. She doesn't believe that her parents are sincere .. And when [mother] says that she learned from her parenting class that she needs to rely-or to the make the kids responsible to help cleaning the home, it is this-this difficult dynamic now because they have relied on [E.B.] for so long to provide care. And one of the main things [mother] got out of her participating class was to make the children more responsible. And I think that kind of addresses [E.B.'s] concern and fears of going home is having that responsibility again.... And for [E.B.] it is her emotional well-being that is the cru[x] for her. It is also the cru[x] for [B.B.], but also for [B.B.] I also think it's his physical well-being as well because of his diagnosis and the medication that the parents don't seem to be aware of, and I wish we would have heard a little bit more. That is really the last thing that I heard from [mother] regarding [B.B.]. I do believe the [d]epartment has met their burden by a preponderance of the evidence that a return of the children to the care would create a substantial risk of the detriment to the safety, protection and the well-being of the children. .. There is really not that insight as to what the particular needs are of each [child] regarding for [E.B.] and regarding for [B.B.]. And [father] saying he didn't remember really what he learned from parenting .. as of today it does not seem that the parents really have that insight. '
The juvenile court went on to state that it was concerned that mother and father would not be able to follow through with counseling for [E.B.] and address [B.B.'s] autism and ADHD, due to their lack of understanding.
"The juvenile court then denied the section 388 petitions, terminated reunification services, and set the section 366.26 hearing for March 7, 2024." (J.B. and F.B. v. Superior Court, supra, F087159, at pp. 2-9.)
E. The Writ Petition
After mother and father filed the appropriate notices challenging the juvenile court's rulings terminating reunifications, writ petitions were filed by each with this court on December 11, 2023. Mother and father argued that the court committed reversible error when it found it would be detrimental to the children if they were returned to their care at the 18-month review hearing. Mother and father believed the court should have returned the children to their care while continuing to provide family maintenance services.
The record also contains additional filings made before the writ petitions were resolved. These filings include a request for an ex parte hearing to clarify the parents' educational rights, to seek the approval for medication for one of the minors, and to correct the names of the minors in the record. These matters do not impact the appeal we resolve today.
On February 1, 2024, this court issued its opinion concluding the juvenile court did not err when it found there was a substantial risk of detriment if the children were returned to the care and custody of mother and father, and that sufficient evidence supported the court's finding. As a result, both petitions submitted by mother and father were denied on the merits, and their requests for a stay were denied as moot. A remittitur was then issued on March 5, 2024.
F. The Section 366.26 Hearing
On March 7, 2024, the section 366.26 contested hearing was held. No additional evidence was presented in the juvenile court other than the updated report from the department and one question posed to E.B., who stated she preferred to move forward with an adoption. Instead, the bulk of the hearing was devoted to the oral arguments presented by the various attorneys involved in the case, mostly focusing on whether or not the beneficial parent exception applied.
Toward the end of the hearing, after noting it had read the February 26, 2024 report submitted by the department, the juvenile court stated:
"Notice has been provided as required by law. The status of the children is reviewed pursuant to [s]ection 366.26. The children's placement is necessary and appropriate.
"The department has complied with the case plan by making reasonable efforts including whatever steps are necessary to finalize the permanent placement of the children. The court previously made a finding terminating reunification services under ... [s]ection 366.22 for the parents.
"There is clear and convincing evidence the children are likely to be adopted. Parental rights of [mother] and father are ordered terminated, and the children are declared free from parental care and control. The children are referred to the county adoption agency for adoptive placement of the children by that agency."
Both mother and father filed timely notices appealing this decision.
DISCUSSION
In her opening brief, mother argues the evidence does not support the findings made by the juvenile court resulting in the termination of her parental rights. Mother contends this is especially true with respect to B.B., who she believes will be harmed by the complete severance of their relationship. Father emphasizes the fact that he and mother "maintained consistent and largely positive visits with the children following their removal" and that the strong bond they shared should have been accommodated. Both believe the facts supported the existence of the beneficial parent exception preventing the termination of their parental rights.
I. The Applicable Law
Pursuant to section 366.26, subdivision (b), once a child has been declared a dependent of the juvenile court, the court's next obligation is to establish a permanent plan through a selection and implementation hearing, which will lead to a stable and permanent home for the child. While addressing this responsibility, our Supreme Court explained:
"At the section 366.26 hearing, the question before the court is decidedly not whether the parent may resume custody of the child. [Citations.] In fact, it is not permissible to order reunification at the section 366.26 hearing. [Citations.] Indeed, when the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved." (In re Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.).)
While there are a number of statutory choices for a permanency plan, "the preferred choice is adoption, coupled with an order terminating parental rights." (In re A.L. (2022) 73 Cal.App.5th 1131, 1149, addressing § 366.26, subd. (b).)
To terminate parental rights, a court need only find "(1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there [was] a previous determination that reunification services shall be terminated." (In re A.L., supra, 73 Cal.App.5th at pp. 1149-1150.) Therefore, because the termination of reunification services occurs at the prior dependency hearing, the focus during the section 366.26 hearing is on whether the evidence supports the adoptability of the child under the clear and convincing standard. If the court determines the child is adoptable, it is then required to terminate parental rights, unless an exception stated in section 366.26, subdivision (c)(1) applies. (Caden C., supra, 11 Cal.5th at p. 630.) It must be emphasized, however, that the six specified circumstances in section 366.26, subdivision (c)(1)(B) are "actually, exceptions to the general rule that the court must choose adoption where possible ._" (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Mother and father ask this court to focus on the section 366.26 exception that states parental rights might not be terminated if "[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), emphasis added.) Again, this exception merely permits the court, "in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (In re Celine R., supra, 31 Cal.4th at p. 53.)
A. The Beneficial Parent Exception
Our Supreme Court in Caden C. stated the beneficial parent exception has three elements that must be established before it is available to prevent the termination of parental rights. (Caden C., supra, 11 Cal.5th at p. 631.) Specifically, "the parent asserting the parental benefit exception must show, by a preponderance of the evidence, three things. [(1)] The parent must show regular visitation and contact with the child, taking into account the extent of visitation permitted. Moreover, [(2)] the parent must show 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)] the parent must show that terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home. When the parent has met that burden, the parental-benefit exception applies such that it would not be in the best interest of the child to terminate parental rights, and the court should select a permanent plan other than adoption." (Id. at pp. 636637.)
On appeal, the first two elements are reviewed for substantial evidence, because they involve factual determinations. (Id. at pp. 639-640.) The final element, however, involves a consideration of the relative harms and benefits of terminating parental rights, which reflects "a delicate balancing of these [factual] determinations." (Ibid.) For this reason, the final element is reviewed for an abuse of discretion. (Ibid.)
II. Application
As noted above, the juvenile court found the children were adoptable by clear and convincing evidence. Based on our review of the record in this case, we agree the evidence supports this conclusion. The only way to avoid the termination of their parental rights, therefore, was for mother and father to prove that the beneficial parent exception applied in their case.
When addressing the Caden C. elements, the juvenile court agreed there was evidence supporting the conclusion mother and father "regularly and consistently visited the children." On the second element, the court reminded the parties that the existence of a substantial, positive, and emotional attachment was from the viewpoint of the children, not from the viewpoint of the parents. The court reviewed the history of the case, the evidence in the complete record before it, and the feelings of the children on the question of their placement. The court then concluded that on the second element of the Caden C. test, the parents did not meet their burden of proof.
The juvenile court then turned its attention to the third element of the Caden C. test, asking whether terminating the parental attachment would be detrimental to the children even when balanced against the benefit of a new, adoptive home. Initially, the court acknowledged there would be some detriment to the children, primarily to B.B. However, the court concluded:
"[W]hen looking at the benefits of adoption of what that has to offer, I do believe the evidence shows at this point based on the quality of the visits, how much time has gone since they've been in out-of-home care of the parents, and really how the relationship has devolved over time due to that, that the benefits of adoption outweigh the detriment that the children will experience. I will follow the recommendations in the report."
The court then terminated the parental rights of mother and father.
The final report submitted by social services to the court for the section 366.26 hearing summarized observations of three visitations occurring after reunification services were terminated, but before the section 366.26 hearing. The report further noted that E.B. had stopped participating in the visits toward the end and that B.B. would spend the majority of his time during visits playing games on mother's phone. There was also evidence in the record that both E.B. and B.B. wanted to be adopted by their current caregivers. E.B., in fact, noted that visitations with her parents had become "awkward" because they encouraged her to tell others that she did not want to be adopted, which was not the case. E.B. also stated she felt safe in her current home.
Again, the burden to prove each of the Caden C. elements belonged to mother and father. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Neither mother nor father, who were both present at the section 366.26 hearing, offered any evidence or testimony in an effort to meet their burden of proof, especially with respect to the second and third elements. Relying only on the fact that they both maintained their visits with the children as ordered was not enough, by itself, to avoid the termination of their parental rights under the Caden C. test.
We believe substantial evidence supports the juvenile court's findings on the first and second elements of the Caden C. test. With respect to the third element, considering the detriment to the children of terminating parental rights when balanced against the benefits of being adopted into a new home, we conclude the court did not abuse its discretion when it found the benefits of adoption outweighed any detriment the children would experience from the termination of parental rights.
DISPOSITION
The orders entered by the juvenile court in this case on March 7, 2024, are affirmed.
[*] Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.