Opinion
B331395
04-16-2024
In re BROOKLYN A., a Person Coming Under the Juvenile Court Law. v. OMAR A., 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 Navid Nakhjavani, 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NOT TO BE PUBLISHED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. 20CCJP04958A, Linda L. Sun, Judge.
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 Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, Acting P. J.
Defendant and appellant Omar A. (father) appeals from the juvenile court's order terminating his parental rights to Brooklyn A. (minor, born Sept. 2014). He contends that the court erred in declining to apply the parental-benefit exception to adoption set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm.
BACKGROUND
I. Minor Becomes a Dependent of the Court
In September 2020, the Los Angeles County Department of Children and Family Services (DCFS) filed a juvenile dependency petition regarding minor. On December 1, 2020, the juvenile court sustained two counts in the petition under section 300, subdivision (b)(1) (failure to protect), alleging past and present alcohol abuse by father and minor's mother, Melissa A. (mother).The court declared minor a dependent of the court and removed her from parental custody. The court ordered family reunification services and monitored visitation for the parents.
Mother is not a party to this appeal.
II. Family Reunification Period
Throughout the family reunification period, minor remained in the care of her paternal grandparents, J.A. (paternal grandmother) and E.A. (paternal grandfather). The paternal grandparents provided a "loving and stable placement[.]" Paternal grandmother "ensure[d] that minor's medical, dental, education[al], emotional and mental health needs [were] addressed." Minor frequently hugged paternal grandmother and smiled and laughed with her. Minor enjoyed living with paternal grandmother and wanted to remain in her care instead of returning to father's custody.
Father only minimally complied with his court-ordered case plan. His visitation with minor was consistent. Father and minor liked to build with blocks, play together at the park, and play with a large dollhouse that father had purchased for minor. Although minor enjoyed her visits with father, she was afraid when he became angry and yelled.
In March 2022, father called paternal grandmother and asked to speak with minor. Paternal grandmother observed minor's expression change during the conversation and when paternal grandmother took the phone back, she heard father yelling at minor and using profanity. When asked why he was angry, father said he had gone to the paternal grandparents' home and minor was not there. Father later went to a police station to request a welfare check on minor. He caused a commotion at the station; he yelled and was argumentative with the dispatch officers. Officers conducted a welfare check and concluded that minor was fine.
Later that month, paternal grandmother reported that father had been calling her, yelling, and using profanity. When asked by a social worker how she felt about living with father, minor stated, "'I just don't want to live with my dad, I love living with my grandmother.'" Minor reported that she felt afraid sometimes because father would become angry and would yell and scream. Minor stated that father had hit her in the past so hard that her teeth had hurt.
III. Termination of Family Reunification Services
On April 27, 2022, the juvenile court found that father was not in substantial compliance with his case plan and terminated his reunification services. Although father "ha[d] maintained contact with" minor, the court explained that "during his visits he had explosive outbursts that upset the child" and caused her to be "afraid of visiting with . . . father."
The juvenile court had previously terminated reunification services for mother in January 2022.
IV. Permanency Planning Period
During a visit with minor on May 17, 2022, father asked to speak with her alone. When the social worker denied the request, father became visibly upset and stated that he wanted "to terminate total visitation." Minor also became visibly upset and stated, "'don't do that daddy[.]'" After the visit was terminated and the social worker explained appropriate visitation guidelines, father stood up and began to yell and use profanity. Father stated, "'I'm not going to take it in the ass. I don't want to suck the department's dick.'" The social worker interpreted father's statement that "'If I wasn't a man of God'" to mean that father would otherwise have physically attacked the social worker for writing an unfavorable report. Father continued to make statements such as, "'If I wasn't a man of God, I would blow this place up,'" "'You don't know what kind of mental state I'm in[,]'" and "'You don't know what I can do.'" Father was escorted out of the building.
Father had two subsequent visits with minor in June 2022 that were appropriate. Minor expressed a desire to visit with father but wanted to continue living with paternal grandmother.
According to an October 2022 status review report, minor remained in the care of the paternal grandparents, who provided "a loving and stable placement[.]" Minor appeared to be comfortable, happy, and content with them.
Father had apologized to the social worker "for his previous negative behavior during his visits and interactions with DCFS." Father participated in monitored visits with minor once a week for two to three hours at the DCFS office. Father's visits were appropriate and, starting in September 2022, were moved to the paternal grandparents' home. The social worker noted that father and minor were bonded. They played and laughed with each other, and father had "establish[ed] good structure during the visits."
In November 2022, DCFS continued to report that a bond existed between father and minor. Father's visits were "regular and appropriate most of the time."
On November 30, 2022, father filed a section 388 petition seeking reinstatement of his family reunification services. Following a hearing on January 26, 2023, the juvenile court denied the petition. The court found that father had failed to establish changed circumstances or that the requested modification was in minor's best interests. The court explained that "the best interest of" minor was "to retain her stability and permanency and not to uproot her from the place that she ha[d] been placed since September 17th of 2020," which "ha[d] been her single placement."
Paternal grandmother reported that father became aggressive toward paternal grandfather during a February 2023 visit with minor. Father "verbally attack[ed]" minor, saying, "'why did you tell the social worker that you don't want to live with me'" and "'why did you say that you want to live with your grandmother and grandpa.'"
The social worker monitored father's next visit on February 14, 2023. Father brought a McDonald's Happy Meal for minor, along with a flower basket filled with candy and a Valentine's Day balloon. Father and minor played a card game and a board game. Minor appeared cautious and did not discuss her family situation when father asked about how the paternal grandparents were doing.
The social worker reported that minor would get excited for father's visits and, at the conclusion, would usually give father a hug and not react negatively.
Another social worker observed several visits between father and minor in March 2023. The visits were positive and appropriate. Minor appeared comfortable and playful with father; they shared hugs and kisses and father brought lunch, toys, and clothes for minor. During visits, father engaged with minor by reading storybooks and playing board games.
Paternal grandmother informed the social worker that minor "recognizes [f]ather as a parental/father figure[]" and that "'[s]he knows he's her dad.'" Father gave minor gifts for her birthday and on holidays. Paternal grandmother thought that minor "would be a little sad but she would understand" if she were not to have visits with father. Paternal grandfather commented that minor would be sad to not have visits with father and her older sister, Faith A.
Minor told the social worker that she wanted to be adopted by the paternal grandparents. She wanted to continue visits with father following the adoption and said that the paternal grandparents had agreed. Minor wanted father to "'stop getting mad quick.'" Minor stated she would be "'sad, but kind of happy'" if, hypothetically, she could no longer have visits with father, because paternal grandmother became sad following arguments with father. Minor knew that father "'needs to change'" so that he could have a better relationship with her and the paternal grandparents.
According to minor's therapist, minor had expressed, on multiple occasions, that she wanted to remain with paternal grandmother with a plan of adoption and to maintain a relationship with father through visitation. Minor was "'accepting' of the fact that" father still needed to work on managing his anger and emotions. Minor had been "'back and forth'" regarding her feelings about father. She sometimes stated that he would change and improve and other times stated that he would never change.
A social worker explained to minor the difference between adoption and legal guardianship. Minor was able to articulate the difference and indicated that she wanted to be adopted by the paternal grandparents.
In its final report prior to the permanency planning hearing, DCFS noted that father maintained regular visitation with minor in March through early June 2023. There had been some disruption to in-person visitation due to father injuring his knee. DCFS assessed that adoption was the appropriate permanent plan for minor and would give her the best sense of permanency and stability. Minor had thrived due to the paternal grandparents' "consistent care[.]"
V. Termination of Parental Rights
The permanency planning hearing was held on July 6, 2023.
Father's counsel argued that this case "is one of the rare cases where the court must find that the parent-child bond exception [to adoption] does apply." Father had consistently visited with minor and there was a close bond between them. Father's counsel urged the juvenile court to "use caution in relying on [minor]'s wishes in this case" and questioned whether minor "fully grasp[ed] the permanency of termination of parental rights ...."
Counsel for DCFS argued in favor of termination of parental rights, noting that any harm from terminating the parent-child relationship did not outweigh the benefits provided by permanency.
The juvenile court found that father had "clearly" established "that his visits ha[d] been consistent and very engaging." But as to whether the relationship between father and minor would benefit minor, the court did "not find that there [was] a substantial and positive emotional attachment between" minor and father. Although there was "incidental benefit to" minor because she enjoyed her visits with father, the court found "no unique and strong bond." The court noted that minor had been placed with the paternal grandparents for three years and that she had reiterated numerous times that she wanted to be adopted. "Father's temper, quantity and lack of impulse control and anger outbursts ha[d] affected and bothered" minor to such an extent that it negatively impacted their relationship.
The juvenile court went on to "weigh[] the detriment of severance versus the benefits of adoption[.]" The court noted that minor was "thriving in her current placement" and was "closely bonded with her" paternal grandparents. The court found that adoption was in minor's best interest because "any benefit accruing to [minor's] relationship with . . . father . . . [wa]s significantly outweighed by the physical and emotional benefit that [minor] w[ould] receive through permanency and stability of adoption[.]"
Finding that no exception to adoption applied, the juvenile court terminated parental rights. VI. Appeal Father's timely appeal ensued.
DISCUSSION
Father's sole contention on appeal is that the juvenile court erred in finding that the parental-benefit exception to adoption did not apply.
I. Relevant Law
If the juvenile court finds by clear and convincing evidence at the section 366.26 hearing that a child is likely to be adopted, "the court shall terminate parental rights and order the child placed for adoption" unless, as relevant here, it "finds a compelling reason for determining that termination would be detrimental to the child due to one or more" enumerated exceptions. (§ 366.26, subds. (c)(1) &(c)(1)(B); see also In re Caden C. (2021) 11 Cal.5th 614, 630-631 (Caden C.).) "'[T]he statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.'" (In re Celine R. (2003) 31 Cal.4th 45, 53; see also In re I.E. (2023) 91 Cal.App.5th 683, 690 ["'"[B]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement[]''"].)
The exception at issue here-the parental-benefit exception-applies if "termination would be detrimental to the child" because 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).)
A parent asserting the parental-benefit exception must show, by a preponderance of the evidence, that (1) the parent had "regular visitation and contact with the child, taking into account the extent of visitation permitted"; (2) "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) "terminating that attachment would be detrimental to the child even when balanced against the countervailing benefit of a new, adoptive home." (Caden C., supra, 11 Cal.5th at p. 636.)
II. Standards of Review
The substantial evidence standard of review applies to the first two elements of the parental-benefit exception-whether the parent has maintained regular visitation and contact with the child and whether the relationship is such that the child would benefit from continuing it. (Caden C., supra, 11 Cal.5th at pp. 639-640.)
The third element of the parental-benefit exception- "whether termination of parental rights would be detrimental to the child due to the child's relationship with his [or her] parent- is discretionary and properly reviewed for abuse of discretion." (Caden C., supra, 11 Cal.5th at p. 640.) "Under the abuse of discretion standard of review, we determine whether the juvenile court's decision exceeded the bounds of reason and, in so doing, we cannot substitute our view for that of the juvenile court. [Citations.]" (In re I.E., supra, 91 Cal.App.5th at p. 691.)
III. Analysis
The juvenile court did not abuse its discretion in concluding, as to the third element of the parental-benefit exception, that any detriment that minor would suffer from terminating her relationship with father was "significantly outweighed" by the stability and permanency that would come from adoption by the paternal grandparents.
This conclusion renders it unnecessary to address the first and second elements of the parental-benefit exception. (See In re Jason J. (2009) 175 Cal.App.4th 922, 938.)
Although minor often enjoyed her visits with father, she also repeatedly reported her fear of his angry behavior. On numerous occasions, minor expressed an adamant desire to be adopted by the paternal grandparents and not to return to father's custody. By the time of the permanency planning hearing, she had been in the stable and loving care of the paternal grandparents for approximately three years and was thriving. When presented with the possibility that her visits with father would no longer occur, minor stated that she would be "'sad, but kind of happy[.]'"
Although "[t]he child's wishes are not necessarily determinative of whether termination of parental rights will be in the child's best interest[,]" those "wishes may be highly relevant evidence when determining whether termination of parental rights will be detrimental to the child. [Citations.]" (In re I.E., supra, 91 Cal.App.5th at p. 694.) Here, minor's unequivocal desire to be adopted, coupled with her expressed fear of father during his frequent angry and erratic outbursts, provided a strong and abundantly rational basis for the juvenile court to conclude that termination of parental rights would not be detrimental to minor and would, instead, serve her best interests. Contrary to father's argument, the juvenile court did not inappropriately compare father's attributes to those of the paternal grandparents.
Accordingly, we find no error in the juvenile court's refusal to apply the parental-benefit exception to adoption.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CHAVEZ, J., HOFFSTADT, J.