Opinion
B329072
03-26-2024
In re N.C., a Person Coming Under the Juvenile Court Law. v. JOSEPH C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 20CCJP05921A, Nancy Ramirez, Judge. Affirmed.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
MORI, J.
Joseph C. challenges the juvenile court's order terminating his parental rights over his child, N.C., under Welfare and Institution Code section 366.26. He contends the juvenile court erred in declining to apply the parental-benefit exception to adoption. (§ 366.26, subd. (c)(1)(B).) We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
At the time dependency proceedings commenced, Joseph C. (father), Sheila B. (mother), and their child, N.C. (born July 2018), were living together. Father is the sole appellant in this action.
A. Events Leading to Permanency Planning
We limit our recitation of facts to those needed for resolving this appeal and to provide relevant context.
In September 2020, the Los Angeles County Department of Children and Family Services (DCFS) received a five-day referral based on a domestic violence incident in which mother, a reported abuser of marijuana and methamphetamine, threw objects at father in the child's presence. The reporting party noted an ongoing restraining order protecting father from mother. Mother denied the report and accused father of drinking alcohol excessively in the child's presence. In one incident, father was taken to the hospital after throwing up blood in the child's presence. Mother said she believed the court order protecting father had been dismissed.
Law enforcement responded to two incidents of domestic violence between 2019 and 2020 in which parents fought over child custody of N.C. Father was also arrested in 2020 for possessing a methamphetamine pipe and open container of alcohol in his car.
In November 2020, DCFS filed a petition under section 300, subdivisions (a) and (b)(1), alleging N.C. 's need for juvenile court protection due to parents' history of engaging in violent altercations in the child's presence and father's abuse of alcohol and marijuana. The juvenile court detained N.C. and released the child to mother on the condition she live with maternal great-aunts (N.B. and B.B.) and have no contact with father. Father was granted monitored visitation.
In January 2021, the juvenile court detained N.C. from mother after paternal grandmother (Claudia B.) reported parents and N.C. were living together in Claudia B.'s home. According to Claudia B., mother had screamed at father and threatened to kill him in the child's presence. Mother and father denied the allegations. When attempting to serve mother with a removal order, N.B. and B.B. informed DCFS mother fled their home and left N.C. under the care of another maternal aunt (Y.B.).
The following month, the court declared N.C. a dependent of the court under section 300, subdivisions (a) and (b)(1), and ordered the child suitably placed with B.B. and N.B. The court ordered father to participate in several programs, including a six- month drug and alcohol program, a parenting program, random drug testing, and monitored visitation.
The court held a six-month review hearing in August 2021. In a status review report, B.B. and N.B. reported father was regularly attending scheduled visits with N.C., which were generally of good quality. Caregivers were concerned about "father's appropriateness during these visits," as he would bring along male adults and suggested caregivers give him unmonitored visits with the child. Father was twice admonished for attending visits with unapproved people. Nevertheless, the court liberalized father's visitation to include three hours of unmonitored visitation on the condition DCFS preapprove visitation with others. The court clarified "mother [was] specifically not to be present during those visits." The court continued reunification services.
The court held a 12-month review hearing in February 2022. Another status review report indicated father consistently visited the child but at times returned N.C. late. Father completed programs for drugs, alcohol, and parenting, but was inconsistent in alcohol and drug testing. The court found father's absences from testing "very concerning." Finding father had not made substantial progress under his case plan, the court reverted father's visitation to monitored and continued reunification services for three months.
The court held a progress hearing in May 2022. According to an interim review report, DCFS removed N.C. from N.B. and B.B. and placed the child in the care of maternal aunt and uncle (Y.B. and D.R.), who would become the child's prospective adoptive parents. DCFS placed N.C. with Y.B. and D.R. after the child's former caregivers allowed the child to spend an "extended amount" of unmonitored time with parents, who continued to engage in verbal and physical altercations. In April 2022, father returned N.C. from a scheduled visit without an approved monitor and with unknown female occupants in his car. Father's car did not have an appropriate child seat. When asked about the visit by her caregiver, N.C. stated father had directed her not to say anything about being in a "car accident." DCFS removed the monitor for failing to report the matter and agreed to have father's ex-partner (Edna G.) monitor father's visits. The court admonished father to comply with all court orders.
At a status review hearing in September 2022, the court found father consistently visited N.C. but had not made substantial progress under his case plan. The court terminated father's reunification services and ordered permanency planning services.
B. Permanency Planning
The court conducted several permanency planning hearings between January and April 2023. Around December 2022, N.C. was diagnosed with post-traumatic stress disorder (PTSD), anxiety, and depression. The child exhibited bedwetting and had difficulty regulating her emotions. N.C. was enrolled in mental health services.
DCFS reported several concerning incidents during father's visitation between October 2022 and February 2023. On several occasions, N.C. returned from visits wearing different clothing and a diaper. When asked why she was wearing a diaper, N.C. said her father put it on her because she was a baby. Asked about visits with father in February 2023, N.C. reported, "[M]ommy and daddy were fighting in [the] car. My mommy was crying. Daddy didn't cry" but "was screaming. I think is [sic] bad words." N.C. stated, "I felt sad," "I didn't say anything," and "I didn't have a seatbelt" during the incident. At the end of the interview, N.C. urinated on herself.
In October 2022, father and N.C. attended a surprise baby shower for Y.B. As N.C. began to tell Y.B. she had just spent time with mother during father's scheduled visit, father told the child "shhh" as if to quiet her. Mother and father were seen together later at the event.
A social worker interviewed N.C. 's former therapist in February 2023. The therapist, who had treated N.C. between May and October 2022, reported she had not observed N.C. 's relationship with father "due to father's resistance and lack of inquiry in [ N.C. ]'s mental health." N.C. self-reported that she cried after visits with father. According to her caregivers, N.C. threw "temper tantrum episodes" lasting several days, "each time stemming from visiting father." During a single phone conversation, the therapist informed father of the child's "risky behaviors-sexualized [acts] such as inappropriate knowledge of anatomy, temper tantrums, outbursts, emotional dysregulation, hitting, biting others, and hating everyone." The therapist suggested "refined parenting skills" to better support N.C., but father refused, remaining "adamant that child [ N.C. ] was fine."
Father did not make himself available to N.C. 's current therapist, who began treating the child in October 2022. As of March 2023, N.C. continued to have "lengthy temper tantrums lasting 1-2 days" and had "difficulty adjusting after visiting father." To meet the child's developmental potential, the child's current therapist recommended providing N.C. "predictable, consistent, responsive and nurturing caregiving in a highly structured and stable environment."
Between February and March 2023, N.C. continued to exhibit troubling symptoms in connection with scheduled visits with father. Before several visits, N.C. cried, appeared anxious, and on one occasion urinated on herself. N.C. displayed a limited ability to be expressive during her visits, and in several visits, the child threw tantrums and cried uncontrollably. When responding to N.C., father raised his voice, told the child not to cry, and avoided soothing or otherwise comforting N.C. At the end of the visits, N.C. stated she wanted to go home to her caregivers. DCFS believed father's visits caused N.C. confusion and emotional damage and conflicted with lessons the child learned in therapy.
Despite these issues, N.C. appeared to be "thriving" in her prospective adoptive parents' home and viewed them as her primary caregivers. DCFS found no impediment to adoption and recommended terminating parental rights.
C. Contested Section 366.26 Hearing
The court held a two-day contested section 366.26 hearing in April 2023. The court admitted all previous reports and father called various witnesses to testify.
Edna G. testified she was the approved monitor for father's visits between 2021 and 2022. During that period, father was attentive to N.C. 's needs and tried to "correct" N.C. whenever she threw a tantrum. N.C. asked to stay with father at the end of visits.
Father's mother, Claudia B., testified she was an approved monitor for the past nine months. She believed father acted as a parent to N.C. and the two had a "very close relationship; a very tight bond." Claudia B. denied leaving the child with father unmonitored and allowing mother to attend father's visits.
Father also testified. In his view, N.C. always appeared happy and excited to see him. When questioned about reports of N.C. visiting with both parents, father testified, "sometimes she mentions things that are not true."
Father subsequently admitted visiting the child with mother in October 2023 in spite of the court's order prohibiting visitation together.
At the close of evidence, father requested guardianship in place of terminating parental rights based on the parental-benefit exception to adoption. Counsel for DCFS and N.C. argued the exception did not apply and requested terminating parental rights.
The court terminated father's parental rights. In so ruling, the court found the testimony of Edna G. related to visits occurring a year prior, before N.C. started to exhibit behavioral concerns in connection with her visits with father. The court found the testimony of father and Claudia B. not credible.
In finding the parental-benefit exception did not apply, the court acknowledged father's consistent visitation and positive interactions with N.C. It also found N.C. developed a negative relationship with father while out of parental custody for "approximately three of her almost five years" of age. Among the various facts considered, the court noted father failed to ensure N.C. 's safety when he visited the child with mother and without an approved monitor. The court recounted the car accident, N.C. 's uncontrolled urination, and multiple occasions in which father and mother fought in front of N.C., "causing her further trauma." When N.C. had a temper tantrum, father "was unable to manage it. When the child was crying uncontrollably he walked away without trying to sooth or comfort her."
The court also recognized N.C. 's compromised emotional functioning and troubling behaviors, all of which required a safe, predictable, and nurturing environment. Father had not addressed N.C. 's particular needs and instead maintained nothing was wrong. N.C. 's prospective adoptive parents provided the child stability and consistency and could continue to do so.
The court found N.C. adoptable by clear and convincing evidence. The court designated Y.B. and D.R. the child's prospective adoptive parents, ordered permanent placement services, and set a permanency planning review hearing. Father timely appealed.
DISCUSSION
Father contends the juvenile court erred in finding the parental-benefit exception to adoption did not apply. We disagree.
A. Governing Law and Standards of Review
Once the juvenile court terminates reunification services and determines a dependent child is adoptable (a finding not in dispute here), it must select adoption as the permanent plan and terminate parental rights unless it finds doing so would be detrimental to the child under one of several statutory exceptions. (§ 366.26, subd. (c)(1); In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).)
One such exception is the "parental-benefit exception," which applies whenever the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "From the statute, [our Supreme Court has] readily discern[ed] three elements the parent must prove to establish the exception: (1) regular visitation and contact, and (2) a relationship, the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." (Caden C., supra, 11 Cal.5th at p. 631., original italics.)
When considering a juvenile court's "decision[ ] about whether to apply the beneficial relationship exception" codified in section 366.26, subdivision (c)(1)(B)(i), several standards of review apply. (Caden C., supra, 11 Cal.5th at p. 639.) "A substantial evidence standard of review applies to the first two elements" of the parental-benefit exception. (Id., at pp. 639-640.) "The third element . . . is somewhat different." (Id. at p. 640.) The factual bases on which the juvenile court determines detriment under the third element are subject to substantial evidence; the ultimate weighing of facts and determination of detriment is subject to abuse of discretion. (Ibid.)
When reviewing factual determinations for substantial evidence, "a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts.' (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)" (Caden C., supra, 11 Cal.5th 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 "'"'[it] has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"' [Citation.]" (Ibid.) At core, this "hybrid standard . . . 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.' [Citation.]" (Id. at p. 641.)
B. Analysis
1. Father's Visitation and Contact
The first element under the parental-benefit exception is relatively "straightforward. The question is just whether 'parents visit consistently,' taking into account 'the extent permitted by court orders.' (In re I.R. (2014) 226 Cal.App.4th 201, 212, 171 Cal.Rptr.3d 469.)" (Caden C., supra, 11 Cal.5th at p. 632.)
The parties agree with the juvenile court's finding of consistent visitation by father to the extent permitted by court order. Substantial evidence supports this finding.
2. Continuing the Parent-Child Relationship
"As to the second element, courts assess whether 'the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (Caden C., supra, 11 Cal.5th at p. 632.) The focus is the child and their relationship with the parent, which "may be shaped by a slew of 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.'" (Ibid., citing In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) "[C]ourts often consider how children feel about, interact with, look to, or talk about their parents." (Caden C., 11 Cal.5th at p. 632.) "As in this case, often expert psychologists who have observed the child and parent and can synthesize others' observations will be an important source of information about the psychological importance of the relationship for the child." (Id. at pp. 632-633.)
Substantial evidence supports the juvenile court's finding that continuing N.C. 's relationship with father would not benefit the child. At the time of the contested 366.26 hearing, N.C. was about five years old and spent three of those years out of father's custody. At various times throughout reunification and permanency planning, father visited N.C. with mother and without approved monitors. During this time, the child continued to witness a continued pattern of domestic violence between parents and was directed by father to not report the incidents or her involvement in a car accident. These issues, which do bear on father's ability to be an appropriate custodial caregiver, are also relevant to determining whether N.C. had a substantial, positive, emotional attachment to father. (See Caden C., supra, 11 Cal.5th at pp. 637-638 [a parent's struggles with issues leading to dependency "may mean that interaction between parent and child at least sometimes has a '"negative effect"' on the child"].)
Father contends N.C. enjoyed her visits with father and appeared well bonded to him. That may have been true at times. But father must do more than exhibit "frequent and loving contact" with N.C. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.) "A child . . . should not be deprived of an adoptive parent [where] the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B. (2002) 91 Cal.App.4th 454, 466.)
The record supports the juvenile court's finding that father's visits had a negative effect on N.C. 's particular needs. To reduce the child's symptoms for PTSD, anxiety, and depression, and to meet her developmental potential, N.C. needed a predictable, consistent, and nurturing environment. Rather than supporting N.C. 's needs, father's visits conflicted with lessons the child learned in therapy. As the visits progressed, they appeared to confuse the child and resulted in troubling behaviors. During visits, N.C. threw tantrums and cried uncontrollably. Father did not comfort the child, who stated she wanted to go home to her caregivers. After the visits, N.C. would urinate on herself when recounting visitation, throw temper tantrums, and hit and bite others. The child also possessed inappropriate knowledge of human anatomy and sexualized acts.
On this record, father has failed to show N.C. had a "substantial, positive, emotional attachment" to him, one "implying that the child would benefit from continuing [that] relationship." (Caden C., supra, 11 Cal.5th at p. 636.)
3. Effect of Terminating the Parent-Child Relationship
"Concerning the third element-whether 'termination would be detrimental to the child due to' the relationship-the court must decide whether it would be harmful to the child to sever the relationship and choose adoption." (Caden C., supra, 11 Cal.5th at p. 633.) In other words, the court 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." (Ibid.)
In determining the effect of severing a parent-child relationship, the court should not look to whether the parent can provide a home for the child. Instead, the court must look to the effects on the child from severing the relationship, which might include "emotional instability and preoccupation leading to acting out, difficulties in school, insomnia, anxiety, or depression. [On the other hand,] 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." (Caden C., supra, 11 Cal.5th 614 at p. 633.)
Substantial evidence supports the findings on which the juvenile court concluded N.C. would not be harmed by severing the parent-child relationship. As discussed, there were "tangled benefits and burdens" in father's relationship with N.C. (Caden C., supra, 11 Cal.5th at p. 634.) N.C. shared a bond with father and enjoyed her visits. However, father also created unstable and dangerous environments for N.C. by visiting the child with mother without approved monitors. N.C. continued to suffer emotionally in response.
The juvenile court properly exercised its discretion when "disentangling the consequences of removing those burdens along with the benefits of the relationship." (Caden C., supra, 11 Cal.5th at p. 634.) In doing so, the court weighed the benefits and burdens of father's relationship against the safety, predictability, and nurturing environment N.C. 's prospective adoptive parents could provide. N.C. was "thriving" in their home and viewed her prospective adoptive parents as her primary caregivers. We find no abuse in the juvenile court's discretion finding severance of the parent-child relationship would not deprive N.C. of a substantial, positive emotional attachment. (Caden C., supra, 11 Cal.5th at pp. 636-637; see also In re Celine R. (2003) 31 Cal.4th 45, 53 ["'Adoption is the Legislature's first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker'"].)
DISPOSITION
The order terminating father's parental rights is affirmed.
We concur: COLLINS, Acting P.J., ZUKIN, J.