Opinion
B299438
02-27-2020
In re J.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DANIEL C., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK70717) APPEAL from an order of the Superior Court of Los Angeles County, Kristen Byrdsong, Juvenile Court Referee. Affirmed. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
Daniel C. (Father) appeals from the order terminating his parental rights to J.A. (born in 2015) arguing that the dependency court erred in finding the parent-child relationship exception to termination of parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)) did not apply. We disagree and affirm.
All statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL BACKGROUND
At the time of J.A.'s birth in February 2015, both the mother and J.A. tested positive for methamphetamine; the mother had admitted using drugs during her pregnancy and two days before her delivery and had a long history of abusing drugs. The hospital referred the matter to the Department of Children and Family Services (DCFS) and DCFS filed a petition pursuant to section 300, subdivision (b)(1) on behalf of J.A. The court ordered the baby detained in the maternal grandmother's home. On April 22, 2015, the court sustained the petition under section 300. In May 2015, the court declared J.A. a dependent of the court and denied the mother family reunification services under section 361.5, subdivision (b)(10) and (11) because she had failed to reunify with J.A.'s older half siblings who had been subjects of a prior dependency proceeding and set the matter for a section 366.26 hearing.
The mother is not a party to this appeal.
In July 2015, Father, who was incarcerated at the time, contacted DCFS, indicating that he might be J.A.'s father and that if a paternity test confirmed his biological connection to J.A., he wanted custody. Father admitted that he had a criminal record including parole violations and convictions for drug offenses, assault, illegal weapons possession, vandalism, and burglary. He also admitted a history of drug and alcohol abuse.
Father's paternity test results indicated he is J.A.'s biological father. In late September 2015, the court detained the child from Father's custody and ordered monitored visits for him after he was released from custody. On October 5, 2015, DCFS filed a section 342 petition alleging: (1) Father had a history of substance abuse, including cocaine; (2) he was a current abuser of marijuana and alcohol; and (3) Father had criminal convictions of possession of a controlled substance for sale and driving under the influence of alcohol. The court sustained the section 342 petition and denied Father reunification services.
After Father was released from prison, he moved in with the paternal grandmother, and in late October 2015, he began monitored two-hour visits with the baby twice a week. Father also attended parenting classes and had enrolled in an outpatient drug treatment program, scheduled to begin in January 2016.
In the fall of 2016, the maternal grandmother reported she could not care for J.A. long term. A family friend, I.M., who had been helping the maternal grandmother with the baby, indicated an interest in adopting the child. The adoption home study for I.M. was approved, and in January 2016, DCFS placed J.A. in I.M.'s home.
In February 2016, Father filed a section 388 petition for modification of the prior orders denying family reunification services and requested that the section 366.26 hearing be vacated. He also requested the baby be placed in his care.
On March 23, 2016, the court granted Father's section 388 petition in part; it ordered DCFS to provide him with family reunification services, but denied his request for placement. The court also ordered Father to participate in a full drug and alcohol program that included services after he completed the program, 12-step meetings, random weekly drug and alcohol testing, parenting classes, and individual counseling. The court vacated the section 366.26 hearing and allowed Father to continue to have monitored visits with J.A.
Initially, the social worker noted that Father progressed in the court-ordered services, his reunification efforts appeared to be genuine, and the visits, monitored by the paternal grandmother, went well. Father, however, had several positive drug tests in May and June of 2016. And in the fall of 2016, he was cited for public intoxication. The court found Father was not in compliance with the case plan and terminated family reunification services.
Father subsequently disclosed that he had been arrested in November 2016 for felony grand theft and was sentenced to 36 months of probation and ordered to complete community service, counseling, and a drug program.
On March 1, 2017, Father filed a section 388 petition for modification of the court's order terminating family reunification services, pointing out that he continued participating in his programs and continued positive weekly visits with J.A. even after the court terminated family reunification services. He claimed he was sober and could provide a safe and stable home for J.A. He attached a certificate of completion of four months of substance abuse treatment and post-treatment services. The court set a hearing on the petition.
According to the social worker's April 2017 report, Father continued to have monitored visits with J.A.; Father appeared to be bonded with the child, and she appeared to be comfortable in his presence. The social worker also reported that I.M. continued to meet all of the child's needs and "has been her parent in every respect" and remained committed to adoption. The social worker recommended the court reinstate family reunification services for Father.
On May 3, 2017, the court granted the section 388 petition in part, ordering DCFS to provide family reunification services and changed the visitation order to allow Father unmonitored visits. The court also ordered him to submit to random weekly drug tests, participate in individual therapy and 12-step meetings.
On September 27, 2017, Father admitted to the DCFS social worker that although he had enrolled in a drug rehabilitation program, he was still struggling to remain sober and would drink to the point of passing out. He claimed that he did not drink when he visited J.A., however. Father continued to visit the child weekly; the social worker stated that although the visits were unmonitored, the paternal grandmother was always present and helped Father with the child. J.A. remained in I.M.'s home and was doing well; she referred to I.M. as "mommy."
Father entered another drug treatment program in October 2017. In late January 2018, however, Father was discharged from the drug rehabilitation program because he missed drug tests, violated the program rules, engaged in disruptive behavior in group sessions, and demonstrated disrespect to the patients and staff.
On February 14, 2018, the court again ordered Father's visits to be monitored. And in March 2018, the court terminated family reunification services for a second time and set the matter for a section 366.26 hearing to select and implement a permanent plan for J.A.
During the summer and fall of 2018, Father, accompanied by the paternal grandmother, continued to have monitored visits with J.A. In June 2019, Father had been under the influence of drugs during visits. In mid June 2019, Father submitted to a drug test, the results of which were positive for amphetamine and methamphetamine.
On July 23, 2019, the court held a section 366.26 hearing. Father's counsel argued that the court should find that the child-parent relationship exception to termination of parental rights applied. DCFS's and the child's counsel argued that the evidence did not support the exception, pointing out that Father continued to struggle with substance abuse which affected his relationship with the child, and that I.M. had consistently provided J.A. with a safe and stable home. The court terminated Father's parental rights.
Father does not challenge the court's finding that J.A. was adoptable.
DISCUSSION
After the court terminates reunification services, the focus of dependency proceedings shifts to the needs of the child for permanency and stability, and specifically to determining the best interests of the child. (In re J.C. (2014) 226 Cal.App.4th 503, 527.) "[I]t is only in exceptional circumstances that a court will choose a permanent plan other than adoption." (In re Scott B. (2010) 188 Cal.App.4th 452, 469; see § 366.26, subd. (c)(1)(B) [the court "shall terminate parental rights" if the minor is likely to be adopted unless termination would be detrimental to the child under one or more statutory exceptions].)
"[A] parent seeking a less restrictive plan has the burden of showing that the termination of parental rights would be detrimental under one of the exceptions listed in section 366.26, subdivision (c)(1)(B)." (In re J.C., supra, 226 Cal.App.4th at p. 528.) This court reviews the dependency court's section 366.26 findings for sufficiency of the evidence. (In re C.F. (2011) 193 Cal.App.4th 549, 553.)
Father argues that substantial evidence does not support the court's decision that the parent-child relationship exception to adoption does not apply. We disagree.
Father relies on the section 366.26, subdivision (c)(1)(B)(i) exception to adoption when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re J.C., supra, 226 Cal.App.4th at p. 528.) Father, however, did not meet his burden to show that J.A. would benefit from continuing the relationship. Although he maintained consistent visitation with J.A., he failed to demonstrate the requisite benefit to J.A. from preserving his parental rights and foregoing an adoptive home. Despite the court giving him more than two years to deal with his substance abuse problem, he continually relapsed and never resolved his addiction, and even visited J.A. while under the influence. J.A. never lived with Father. She had lived almost her entire life with I.M., whom she viewed as her parent and who provided an appropriate home. Under these circumstances the benefit to maintaining the parent-child relationship was substantially outweighed by the benefits of adoption. Accordingly, the court did not err in terminating parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur.
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------