Opinion
H044420
10-20-2017
In re H.R., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. R.R. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. J48290)
Father R.R. and Mother, S.B. appeal from an order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26. On appeal, appellants' counsel filed letter briefs pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 (Phoenix H.), stating the case and facts, but raising no arguable issues on appeal. Pursuant to Phoenix H., after appellants made a showing of good cause, we allowed them both to file supplemental briefs. In their supplemental briefs, appellants fail to raise arguable issues on appeal from the order terminating parental rights. Therefore, we will dismiss the appeal.
All further unspecified statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Factual and Procedural Background
For a complete recitation of the facts and procedural history of the dependency proceedings below, see this Court's opinion in R.R. v. Superior Court of Monterey County (Jan. 10, 2017, H043997) [nonpub. opn.]. --------
Mother, a native of England, received a degree from the University of California, and has lived and worked in the United States and around the world. Father is from Jamaica, where he was a fisherman and a small business owner. Father and Mother met while Mother vacationed in Jamaica. They were married in 2010, and their child, H.R. was born in 2012 in New York, where mother lived. Father had hoped to join Mother in New York, but had been refused entry into the United States.
When the child was an infant, Mother moved to Salinas, where her parents lived. In 2014 she left him in her parents' care, and moved back to London to find work. On January 15, 2015, after multiple reports of neglect and abuse, the Monterey County Department of Social Services (Department) filed a petition pursuant to section 300, subdivisions (b) and (g), alleging that the child was at substantial risk of serious physical harm and that the parents were unable or unavailable to provide care, in that the mother refused to provide her address and Father's whereabouts were unknown. On April 7, 2015, the juvenile court sustained the petition, declared the child a dependent, removed custody from the grandparents and ordered reunification services for Mother. Father's whereabouts were still unknown at that time, so the Department had not contacted him.
By June 2015, the social worker had spoken to Father, who expressed a desire to participate in services and seek custody of the child. Mother, on the other hand, was working in London and did not regularly visit the child, nor was she seeking return of the child. On September 28, 2015, at the six-month review hearing, Mother's services were terminated. The court ordered reunification services for the father and ordered a further review in six months. The court heard evidence that the child was doing well in the foster home, and that the foster parents were interested in adopting the child. The court granted the foster parents de facto parent status, and awarded them educational rights. After this hearing and through December 2015, Mother did not visit the child, and her subsequent requests for a visit were denied.
By the 12-month review hearing, Father was still living in Jamaica, but had participated in reunification services, and had completed a home study. The child, who had been diagnosed with Reactive Attachment Disorder, was reportedly prone to extreme anger and deregulation without much provocation, and reacted traumatically when speaking about his grandfather or Mother. When Father attempted to Skype with the child for the first time in January 2016, the child became extremely upset during the call. The child continued to resist calls from Father. In light of Father's efforts, the court continued reunification services to Father, and set a further review hearing.
Father applied for a visa in early 2016, and arrived in the United Stated in March 2016. He established a residence, worked consistently on his case plan, and began visiting with the child. The Department praised Father's efforts and progress. Visits with the child were another story. Multiple professionals, as well as the child's foster parents observed the visits. The foster parents always remained in the room during visits. Everyone described the visits as very difficult, with the child throwing tantrums, screaming, and crying. Observers noted that the child was not building an attachment with Father. Despite these difficulties, they all described Father as extremely patient and acknowledged that Father had learned the child's cues. As visitation increased, the child's negative issues did as well.
The child articulated to his therapist a fear of being taken away by Father. The therapist said that she had done all she could to foster a bond between father and son, but that the child was not attaching to Father. Father's visits were decreased, and the child's negative behaviors did as well. The child's foster parents continued to express a desire to adopt the child, and the Department opined that the child's reactive attachment disorder made it challenging for him to emotionally bond with anyone other than his foster parents. The Department concluded that it would be detrimental if that bond were ruptured. After 18 months, the juvenile court terminated services, and set a hearing pursuant to section 366.26. Father filed a writ in this court, which we denied on January 10, 2017.
In its report dated January 24, 2017, filed in anticipation of the section 366.26 permanency hearing, the Department reported that the child was physically healthy, developmentally on-target, and doing well in school. He was making progress in therapy and his anxiety symptoms had drastically decreased after Father's visits were further reduced to once per month. These visits with Father took place out in the community along with one of the foster parents, and without the supervision of the Department. During the visits, the child engaged briefly with Father, but mostly avoided contact with him, focusing instead on individual play. Mother had completely withdrawn from the child's life. She had not visited him in person since August 2015 and had also stopped phone visitation.
The Department reasoned that the child's attachment disorder made it challenging for him to develop attachments to people. The Department acknowledged that Father "has always presented as mentally and emotionally stable, intelligent, stoic, well-mannered, thoughtful, respectful and reasonable, despite the amazingly painful and disappointing circumstances that he has experienced." However, the Department concluded that the foster parents were the only adults with whom the child had bonded emotionally, and that it would be detrimental to him if that bond were ruptured. The Department recommended father's parental rights be terminated so that the child could be adopted by the foster parents.
Mother submitted on the Department's recommendation that the child was adoptable, but objected to a permanent plan of adoption. The juvenile court found the Father's offer of proof insufficient to proceed to a contested hearing, selected adoption as the permanent plan and terminated parental rights. This timely appeal ensued.
On appeal, we appointed counsel to represent appellants. Both appointed counsel for Mother and for Father filed briefs pursuant to Phoenix H. stating the case and facts, but raising no arguable issues on appeal. Pursuant to Phoenix H. this court notified appellants of their right to submit a request showing good cause to file a supplemental brief. On, May 9, 2017 and May 15, 2017, appellants sought permission to file a supplemental brief. On June 1, 2017, we granted appellant permission to personally file a brief. (Phoenix H., supra, 47 Cal.4th at p. 844-845.) On June 30, 2017, Mother filed a supplemental brief. On July 5, 2017, Father filed a supplemental brief.
Discussion
We now address the matters raised in the parents' supplemental briefs. In her supplemental brief, Mother primarily contends that the Department and other professionals involved in the dependency proceedings made many factual errors, and have been dishonest during the proceedings. She states that these errors should call into question the rest of the proceedings. She also challenges many of the factual conclusions reached by the juvenile court prior to the termination of services, and provides alternative explanations for her conduct with the child and during the proceedings. For example, Mother contends that the child was bonded to her and his grandparents and that his Reactive Attachment Disorder did not present itself until after the dependency proceedings began. Whether the dependency proceedings caused or exacerbated the child's attachment disorder, or whether this disorder was properly the basis for termination of services or limitation on visitation is not relevant to this appeal from an order terminating parental rights. "[T]o terminate parental rights under section 366.26, the court 'need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated.' [Citation.] Under these circumstances, 'the court shall terminate parental rights' unless certain exceptions apply. [Citation.]" (In re Logan B. (2016) 3 Cal.App.5th 1000, 1010, review denied Dec. 21, 2016, S238409.) The juvenile court properly found both: that mother's services had been terminated after six months in September 2015, and that it was undisputed the child would be adopted by his foster family.
Unlike Father, Mother did not challenge the order terminating services. She cannot now challenge the factual contentions underlying that order. (In re Cathina W. (1998) 68 Cal.App.4th 716, 720.) Even though she purports to challenge the factual accuracy of the report filed by the Department prior to the termination of rights hearing, she fails to articulate how vague assertion regarding factual discrepancies in the report supports a claim of error on appeal from an order terminating parental rights. Having failed to raise any arguable issue on appeal from the order terminating parental rights pursuant to section 366.26, Mother's appeal must be dismissed.
In his brief, Father too focuses on the circumstances leading to the termination of services, and asks that we revisit our prior decision affirming that order. He also asks us to reverse the order terminating his parental rights. He complains that the Department did not do enough to contact him initially. He contends that because of the Department's delay, he did not have a sufficient period to bond with his son before services were terminated. He also argues that a continuing relationship with him would be beneficial to his son.
As we discussed more fully in our decision affirming the order terminating services, the facts of this case are tragic for Father. By all accounts, Father was a grounded, intelligent and thoughtful person, who did everything he could to bond with the child, despite the very difficult limitations of his immigration status during the dependency period. Unfortunately, the child's attachment disorder, whether a consequence of the trauma occasioned by Mother leaving him with his grandparents, or a consequence of the child's removal from the grandparents when they could not properly care for him, made establishing a bond with Father for the first time at age three impossible.
Many circumstances contributed to the delay in engaging Father in visitation. An immigration system that does not favor individuals with lower incomes, the misfortune of Father losing his passport, the Department's less than fullhearted attempts to locate Father, and Mother's delay in providing Father's contact information were all contributing factors. However, Father is not merely a victim of a series of unfortunate events. Father did not discover that his passport was missing until after he was contacted by the Department. In his brief, he claims that "it was not something [he] ever used except when [he] tried and failed to get a visa to visit [his] son after he was born." That was in 2012. By his own admission then, between 2012 and 2015, he made no attempts to visit his son, who he'd never seen. He admitted that before the dependency, he used to communicate with the child, but that those contacts ceased in December 2014. Father allowed this situation to continue, and did not know that Mother had moved away and left the child with his grandparents. For this he blames Mother for not being "very communicative," but takes no personal responsibility. Father objects to the characterization of his parenting as "lackadaisical" and instead describes himself as "consistently low-stress." For three years, Father took no steps to parent. Whether this was a consequence of "lackadaisical" parenting or because he felt no stress over being away from his child, the effects on the child of not having either parent to care for him were apparent.
There is no question that once Father arrived in California he did his most to bond with the child, and to do whatever was asked of him. The Department admitted that Father had gone "above and beyond to demonstrate an emotional commitment to [the child]." However, trying to bond with his Father for the first time after three years caused the child so much distress, the court, which must consider the child's best interest over a parent's, had no choice but to sever the relationship. A parent who fails to make his child a priority for most the child's life, but finally realizes the stakes and rises to the challenge, must be prepared to accept that it may be too late for the child. Even if we could revisit our decision to affirm the order terminating services, there would be no legal or factual grounds to do so here.
Finally, Father contends that given his changed circumstances, it would now be in the child's best interest for Father to remain a part of his life. Father claims that his intention to remain here permanently, his job and his improved housing situation all support this conclusion. There is a statutory exception to selecting a permanent plan of adoption where there is an important and beneficial relationship between a parent and child, such that terminating this relationship would be detrimental to the child, (§ 366.26, subd. (c)(1)(B); In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) " 'The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs.' [Citation.]" (Bailey, supra, at p. 1315.) While it may be true that Father is better situated to provide for the child's physical and emotional needs now and in the future, these facts do not support a finding of an existing beneficial relationship worthy of protection. The hope for a future bond is insufficient.
The child is now nearly five years old, and has spent very little time with Father. It was undisputed that time spent with Father caused the child severe distress, and that limiting contact improved the child's emotional state. The burden is Father's to show an existing beneficial relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Father can provide no evidence of such a relationship. To the contrary, all the evidence showed that continuing a relationship with Father caused the child further distress and uncertainty. Under these circumstances, where services were properly terminated, the child is thriving in his adoptive home, and Father can show no beneficial relationship, the juvenile court properly terminated parental rights and selected a permanent plan of adoption.
Having failed to raise any arguable issue on appeal from the order terminating parental rights pursuant to section 366.26, the Father's appeal must be dismissed as well.
Disposition
The appeal by Mother S.B. is dismissed. The appeal filed by Father, R.R. is dismissed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
GROVER, J.