Opinion
B233727
12-01-2011
In re KATLYN L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DENISE C. et al., Defendants and Appellants.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Denise C. Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant Lee H. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK72113)
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn Mire Mordetzky, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Denise C.
Roland Koncan, under appointment by the Court of Appeal, for Defendant and Appellant Lee H.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Denise C. appeals from the order of the juvenile court terminating her parental rights to half-siblings Katlyn (6 years old) and Jayden (2 years old) and selecting adoption as the appropriate permanent plan. (Welf. & Inst. Code, § 366.26.) Lee H. appeals from the same order terminating his parental rights to Jayden. The parents contend the evidence does not support the court's finding that the parent-child relationship exception to the adoption preference is inapplicable. (§ 366.26, subd. (c)(1)(B)(i).) We affirm.
Katlyn's father is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence according to the rules of appellate review. (In re B.D. (2008) 159 Cal.App.4th 1218, 1235.)
1. the first petition
Jurisdiction over these children was originally based on Denise's substance abuse. The Department of Children and Family Services (the Department) filed a petition in May 2008 alleging Denise used marijuana and cocaine and tested positive for those drugs six days before giving birth to Jayden. The petition also alleged Lee failed to provide Jayden with the necessities of life including clothing, shelter, and medical care and his whereabouts were unknown. The juvenile court declared the children dependents of the court (§ 300, subd. (b)), removed them from Denise's custody, and placed Jayden with Lee. Both parents have a long history of arrest for possession of controlled substances, prostitution, and theft, among other things.
Interviewed by the Department's social worker, Katlyn described how she had seen Denise smoking marijuana and that her parents " 'leave me home alone for a long time.' " (Italics omitted.) Katlyn did not know where Denise went when she left the child.
In December 2008, the juvenile court ordered Katlyn placed with Denise and Jayden returned to the home of his parents. As the parents were in compliance with the case plan, the court ordered family maintenance services for Denise with a view to terminating jurisdiction at the 12-month review hearing. In January 2009, the juvenile court terminated jurisdiction over Jayden.
2. the second petition
Five months later, in June 2009, the Department filed a section 300 petition on behalf of Jayden and a section 342 petition on behalf of Katlyn. Denise and Lee engaged in a physical altercation in March 2009 in Jayden's presence and listing Denise's various recent positive drug-test results and Lee's positive alcohol-test results. (§ 300, subd. (b).)
In September 2009, the juvenile court sustained amended petitions on behalf of the children containing the same allegations as above, and adding more positive tests for drugs and alcohol. (§ 300, subd. (b).) The court ordered reunification services for the parents and awarded them monitored visits, a minimum of three hours per week, limited only by the availability of the monitor. The juvenile court sustained the petitions, declared the children dependents, and removed them again from their parents' custody. When it sustained the petition in June, the court ordered that Katlyn undergo individual counseling. When it sustained the amended petition in September 2009, Katlyn's attorney requested that her client be assessed for therapeutic services. The court agreed and ordered specifically that Katlyn "be assessed for therapeutic services and/or psychiatric evaluation and psychotropic medication support if necessary and shall be enrolled in mental health services based upon assessment."
Katlyn was initially placed in foster care. Unlike the previous dependency, when Katlyn cried to the point of exhaustion at the conclusion of visits with Denise, the child exhibited fewer adjustment issues this time. She was loving and affectionate with Denise, but did not cry when visits were over.
The children were placed in the home of Mr. and Mrs. M. in January 2010. Katlyn was doing well there and reported she liked living with the M.s and liked her new school "very much," having made "a lot of new friends." During the first six months of reunification, Mrs. M. reported that the children have regular visits with their parents and Katlyn stated she has a lot of fun during visits. Periodically the child had a difficult time saying goodbye to Denise when visits were over, becoming so upset she made herself vomit. Other times she had no problem at the end of visits. Katlyn had been assessed for therapy, but because of Medi-Cal related issues, she had not begun therapy by March 2010.
Meanwhile, Denise attended her visits regularly, on time, and remained for the entire visit. The monitor described Denise as "wonderful with her children" as she "plays with them the entire time."
Lee's visits were problematic. In June, he stated he could not take visiting his son in such circumstances and left only 10 or 15 minutes into the visit. The following date, Lee became upset and confrontational with the monitor and left a few minutes into the visit. The monitor smelled alcohol on father's breath and believed him to be intoxicated. In October, Lee was forceful and overpowering with Jayden, and would not let the baby play or move about freely. When told to put the baby down, Lee stalked out of the room. In another visit, Lee stated he was ill at the beginning, did not interact with the children, and left an hour early. At the next visit, Lee had alcohol on his breath.
Starting in November 2009, Denise cancelled visits ended visits early, or simply failed to appear.
3. the six-month review hearing
In advance of the six-month status review hearing (§ 366.21, subd. (e)), the Department recommended continuing reunification services because although they were having trouble commencing their treatment programs, Denise and Lee had visited the children regularly and "are very bonded" with the children.
At the hearing, counsel for the children stated to the court that Katlyn was "very bonded to her parents." The court continued reunification services while finding the parents were in partial compliance with the case plan. The court also ordered that Jayden be referred for domestic violence counseling and Katlyn be assessed for individual therapy. Finally the court ordered that the children be assessed for therapeutic services and psychiatric evaluation and psychotropic medication support if necessary, and be enrolled in mental health services based on the assessment.
Katlyn commenced weekly therapy sessions in May 2010. Her therapist reported that they were working on her "depressive symptoms" through trauma focused therapy and that she was "showing a lot of progress."
4. the 12-month review hearing
By September 2010, Denise had stopped participating in her programs and Lee cancelled a team decision making meeting. Neither parent was drug testing.
The children were doing very well in their placement. They had a wonderful summer. Katlyn stated she really liked visiting with Denise and Lee. Lee was not sober during visits. At times, Lee did not interact with his child, walked in and out of the room, and was frustrated by Jayden. At one visit Denise tried to re-pierce Katlyn's ears and so management had to be called to stop her.
Denise was pregnant with her third child. The parents were not participating in their services. The social worker concluded that the parents had "given up on trying to get their children back" because, the social worker believed, the parents knew that the maternal grandmother in Nebraska was interested in taking legal guardianship of the children. The parents' failure to undergo services "is especially hard on Katlyn" the social worker reported, because the child "misses her mother terribly, and is waiting for mommy to finish her 'classes' so that she can go home with [her mother]." The Department recommended that the juvenile court terminate family reunification services because, after a year of services, the parents had not made progress toward sobriety and the children needed permanency if they could not be safely returned to their parents' custody.
At the 12-month status review hearing (§ 366.21, subd. (f)) in September 2010, the children's attorney argued that Katlyn wanted to reunify with Denise. The juvenile court terminated reunification services effective October 18, 2010. The court also ordered the Department to report on an interstate compact to determine whether the paternal grandmother in Nebraska could take custody of the children.
5. the six month period post-reunification
Beginning on October 4, 2010, the parents cancelled visits with the children for two weeks in a row. Denise claimed she was having a C-section and would be in the hospital for 14 days. Instead, according to the social worker, the parents " 'went on the run', because they had warrants for their arrest." The parents went to the maternal grandmother's house in Nebraska where they remained. Thus, their last in-person visit with the children occurred on September 29, 2010. But even that visit was terminated early because Lee was under the influence of marijuana and alcohol and was escorted out of the building. In that last visit with Jayden, Lee "came dangerously close to 'losing his cool,' when . . . asked to leave" and the social workers no longer felt safe. The parents' conduct of cancelling visits or appearing at visits under the influence of controlled substances was "harmful to the children," the Department reported. "Katlyn especially appears to be affected by this as she is older and understands more."
The Department initiated an interstate compact to determine whether the children could move to Nebraska. The State of Nebraska denied the compact in January 2011 because "the prospective adoptive parent [the maternal grandmother], did not cooperate with completing the home study in that she allowed the children's mother to reside in the home." Additionally, Denise gave birth to a baby who had drugs in her system and so the infant was placed in foster care, not with the maternal grandmother. Likewise, an earlier home study, for a placement of Katlyn and Jayden with relatives in California found the relatives to be inappropriate under the Department's policies. Meanwhile, the current caregivers, the M.s were willing to adopt the children.
Katlyn and Jayden remained with the M.s who had cared for them for more than a year. The foster family wanted to adopt the children. Hence, the Department recommended termination of parental rights. Katlyn was making significant progress in therapy as she no longer stuttered or showed anxiety when her brother was in another room. Jayden, who was two years old at the time, was reportedly a "very happy toddler" and developing normally. There were no concerns about his emotional wellbeing.
By April 2011, Katlyn had completed her trauma-focused therapy and did not appear to require additional therapy. Her foster parents were very supportive and the therapist concluded "that is all [Katlyn] appears to need at this time." The children were well cared for and Katlyn reported "that she loves being in the [foster family's] home and calls [the M.'s] 'daddy' and 'mommy'[.]" Katlyn reported that she likes to eat dinner with the "whole family at the dining room table." Jayden was a happy child who almost always had a smile on his face, laughed easily and played well with others. Although too young to make a meaningful statement, he appeared to the social worker to be "very comfortable in the [M.s'] presence and is very affectionate with both of [the prospective adoptive parents]." The social worker did not have any concerns about the children's development. The Department concluded that the M.s would be "wonderful parents" for the children as they love Katlyn and Jayden, and had shown that they will provide for the children, and give then enriching activities so that the children will flourish.
The children had had regular visits with Denise and Lee until they moved to Nebraska in the fall of 2010. After that, the parents visited the children when they came to California for court appearances, once in February 2011 and once in April 2011 for three hours. The parents were appropriate during visits and brought gifts, snacks, and drinks, for the children. The parents played with and showed the children lots of affection. The children reportedly appeared to enjoy the visits. Katlyn cried at the end of the February 2011 visit. However, in April 2011, she said goodbye without tears. Jayden did not appear to be affected by the goodbyes, instead readily reengaging with the M.s.
6. the section 366.26 hearing
At the section 366.26 hearing held in May 2011, Lee did not testify. Denise stated she plans to live in Nebraska permanently and she understood that she was leaving the children behind and it would be very difficult to visit them. Denise claimed she needed to move to Nebraska to get sober. Since moving, Denise testified, she found a job, a house, was in school, and obtained a driver's license, and completed a 12-step program. Lee is living with Denise. Denise acknowledged she has only seen her children twice in the nine months since the beginning of October 2010. Denise also testified she telephoned the children twice a week, although sometimes she missed calls. Denise came to an agreement with the social worker and foster parents that the children would be home twice a week between 4:00 p.m. and 7:00 p.m. to answer the phone. Those conversations lasted from 20 minutes to 45 minutes. Denise testified that Lee's interaction with Jayden during those two in-person visits was "great." Jayden called Lee "dad." At the beginning of visits, Jayden ran to Lee and hugged him. He hugged Lee at the end of visits too. Lee spoke to Jayden on the telephone twice a week when Denise called, she testified.
At the close of the hearing, the juvenile court found no evidence to support an exception to the Legislative preference for adoption. The court found that the parents had only twice visited the children in six months and so "[t]here hasn't been a child-parent relationship for some time." Weighing the benefits of adoption against returning the children to their parents, the court found, in the absence of a parent-child relationship, that it would be in the best interest for the children to have the permanency that adoption provides. The court terminated parental rights. The parents separately appealed.
CONTENTIONS
Denise and Lee contend that the court erred in terminating parental rights because they maintained regular visitation and the children were bonded with them.
DISCUSSION
At the permanency planning hearing, the juvenile court must order one of three dispositional alternatives, adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) The Legislature has declared a strong preference for adoption over the alternative plans if the dependent child is adoptable. (Id. at p. 297.) Thus, the statute directs, if the court finds that the child is adoptable, "the court shall terminate parental rights unless" the court "finds a compelling reason for determining that termination would be detrimental to the child due to" one of the six delineated exceptions. (§ 366.26, subd. (c)(1) & (c)(1)(B), italics added.) Only if a compelling reason for applying an exception appears may the court select a plan other than adoption.
The exception to adoption on which the parents rely is that found in section 366.26, subdivision (c)(1)(B)(i), the so-called parent-child relationship exception. This exception applies when the court finds that (1) "[t]he parents have maintained regular visitation and contact with the child and [(2)] the child would benefit from continuing the relationship." (Ibid.) The parents bore the burden to show application of this exception. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
In applying the parent-child relationship exception, courts "balance[] the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child." (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235.) This balance must be considered in the context of any limitations the juvenile court has placed on visitation. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) "[I]f severing the existing parental relationship would deprive the child of 'a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229, italics added; In re B.D., supra, at pp. 1234-1235.)
However "[t]he juvenile court may reject the parent[s'] claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
On appeal, "[w]e determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.]" (In re B.D., supra, 159 Cal.App.4th at p. 1235.)
Turning to the record here, it shows that Lee did not have regular or positive visits with Jayden. He relies on Denise's relationship to the children. Although Denise had what was in essence regular and ongoing visitation during reunification, which generally went well for her, and Katlyn was "very bonded" with her, the juvenile court did not find that the parent-child relationship was sufficiently beneficial to outweigh the legislative preference for adoption. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The record shows the court did not err. First, Denise and Lee never advanced to unsupervised visits, meaning the children are not safe in the parents' care. And, the quality of interaction that Lee had with Jayden was marked by threats and misbehavior, and certainly never amounted to parental, his contention to the contrary notwithstanding. We note Denise has carefully omitted to mention she too cancelled visits, ended them early, or simply failed to appear at scheduled visits in 2009, and omitted any mention of the fact that during this dependency Katlyn underwent trauma-focused therapy to work on her "depressive symptoms." The M.s, not Denise, saw to it that Katlyn attended her therapy.
The second reason the children would not suffer detriment by termination of parental rights is that the parents moved away from the children to Nebraska, suddenly and without warning to the children or to the Department. Denise knew when she left California that she would leave her children behind and make visiting them nearly impossible. In fact, the parents only saw Katlyn and Jayden twice in the nine months from the end of September 2010, to the end of May 2011, when their parental rights were terminated. Denise and Lee argue that they had regular telephonic conversations with the children instead, which also went well. Granted, the juvenile court must consider any limitations on visitation when it engages in the necessary weighing process under the parent-child relationship. (In re Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538.) However, the limitations on visitation contemplated by these cases are the ones the juvenile court has placed on the parents (ibid.), not the limitations the parents choose to place on their own contact with the children. Regular telephonic visitation here proved to be an inadequate substitute for consistent in-person visits when it was Denise and Lee who chose, on their own initiative, to leave their children behind and move so far away, all the while knowing their relocation would undermine their ability to visit the children. Katlyn was bonded with Denise, but that bond eroded after the move to Nebraska to the point where Katlyn was not distressed at the end of visits. Although Katlyn was very upset when she was removed from Denise's custody in the first dependency, crying herself to the point of exhaustion at the end of visits with Denise, that distress diminished greatly. Katlyn did not exhibit the same degree of adjustment issues the second time she was removed from Denise's custody. And, by the time of the last visit, in April 2011, Katlyn was not moved to tears when she said goodbye to Denise. Jayden did not appear to be affected at all by the visits. The quality of the parents' relationship with these children had diminished such that it did not outweigh the legislative preference for adoption. "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) This is simply not the extraordinary case.
Denise contends the move to Nebraska was the only way she could obtain sobriety and her "last chance to prevent the severance of [her] relationship [with the children] forever." But, not only does the record suggest that she and Lee left California to avoid arrest, but there is also a suggestion that Denise did not achieve sobriety so fast where her newest baby was born with drugs in her system, and was removed from Denise's custody by the Nebraska authorities. In fact, Denise's lack of sobriety was the chief reason the State of Nebraska denied the interstate compact to send Katlyn and Jayden to live there. Reportedly, Denise's mother, the prospective adoptive parent, allowed Denise to reside in her home in Nebraska.
We reject Denise's characterization of the dependency system. She asserts she was given "no leeway to show her ability to make good choices on behalf of her family" because she was put in a "no-win situation" where she had to obtain sobriety "in a dictated environment." We understand by "dictated environment," Denise means California, as opposed to Nebraska. Denise argues that the effect of the dependency system is to "prosecute or to bring legal action against the parent for redress of the violation of a law" even though the purpose of dependency is not to prosecute parents but to protect children. Any challenge Denise has to the dependency system should be raised with the Legislature, not the courts. The constitutionality of the California dependency system has been scrutinized by the Supreme Court. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 [the standard of proof in § 366.26 comports with Santosky v. Kramer (1982) 455 U.S. 745 and due process].) The Supreme Court also noted that the Legislature imposed a limit on the length of time a child must wait for a parent to become adequate. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) Katlyn and Jayden first became dependents in 2008. They should not be made to wait indefinitely for Denise and Lee to become fit parents.
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By comparison to this upheaval in the children's lives, Katlyn and Jayden are thriving in the M.s' care, where they had been for 18 months. Katlyn loves being in the M.s' home with her brother eating dinner together as a family unit. She calls the M.s " 'daddy' and 'mommy'." Katlyn has lots of friends and has completed her therapy. Jayden, who has lived with the M.s nearly half of his life, is well adjusted, and "very affectionate with both of [the M.s.]" He was able to separate from his parents after visits without problem and readily re-engage with the M.s. The children's needs are being met by the M.s. Katlyn and Jayden are happy and healthy. While "[i]nteraction between [a] natural parent and child will always confer some incidental benefit to the child[,] . . . [t]he exception applies only where the court finds regular visits and contact have . . . developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Until nine months before the section 366.26 hearing, Denise and Lee had regular, ongoing visits, which went well, at least with respect to Denise. But the parents gave all of that up when they opted to cease visiting the children in early October 2010. At this point, the children identify the M.s as their parents and are happy, secure, and thriving in the M.s' home. The parents no longer occupy a significant, positive place in the children's emotional lives. In short, the evidence shows that Katlyn and Jayden would not suffer great detriment by terminating parental rights, with the result the juvenile court was obligated to order adoption as the permanent plan. (See § 366.26, subd. (c)(1).)
Denise argues that the juvenile court "injected an improper factor into the weighing process." At the section 366.26 hearing, the court found it would be "detrimental to the children to be returned to the parents." Denise argues this is an improper factor because "[t]he child's return to the parent is not at issue at the section 366.26 hearing." After review of the reporter's transcript, we conclude that the court did not inject any improper factor into its findings with respect to the exception to adoption advocated by Denise and Lee. When the court made this "detriment" comment, it had already analyzed and rejected application of the parent-child relationship exception under subdivision (c)(1)(B)(i) of section 366.26 utilizing the appropriate factors. The court then made the "detriment" finding at the time it was making many statutorily required findings, such as that its continued jurisdiction was necessary, and the like. (Cf. In re G.S.R. (2008) 159 Cal.App.4th 1202, 1211, 1216 [court must continually establish that return of custody to parent would be detrimental to reach section 366.26 stage].) In sum, the evidence does not show a compelling reason for finding that termination of parental rights would be detrimental to these children. (§ 366.26, subd. (c)(1)(B)(i).) There was no error in terminating these parents' rights to Katlyn and Jayden.
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.