Opinion
G054893
09-20-2017
In re NATALIA L., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JUAN L. et al., Defendants and Appellants.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Juan L. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant Lindsey E. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP025326-001 & DP025326-002) OPINION Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Juan L. Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant Lindsey E. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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INTRODUCTION
Juan L. and Lindsey E. are the parents of Natalia L. They both appeal from the order terminating their parental rights under Welfare and Institutions Code section 366.26. Lindsey does not appeal in her own right; she merely asserts that if the order is reversed as to Juan, it must be reversed as to her as well. Juan asserts that he met the burden of proof to establish the parental benefit exception to adoption of section 366.26, subdivision (c)(1)(B)(i).
All further statutory references are to the Welfare and Institutions Code.
We affirm the order terminating parental rights. Although Juan met the regular visitation and contact condition of the parental benefit exception, he did not successfully carry his burden to show that continuing a relationship with him outweighed the benefits of adoption for Natalia and that severing this relationship would be detrimental to her. Lindsey has presented no argument opposing this order. Given the record in this case, we cannot say that the juvenile court abused its discretion when it terminated their parental rights.
FACTS
Natalia was born in early August 2014. She tested positive for drugs, and Orange County Social Services Agency (SSA) filed a protective custody warrant for her. She was placed with Juan. At the detention hearing in August, Natalia was released to Juan under a Conditional Release to Intensive Supervision Program (CRISP) agreement. The CRISP agreement required Lindsey to move out of the residence she shared with Juan and Natalia. Furthermore, Juan could not allow Lindsey to have unauthorized contact with Natalia, and he had to refrain from alcohol abuse and participate in drug and alcohol testing. The court ordered drug testing for both parents. Lindsey was allowed six hours of visitation per week, monitored by her mother.
Juan had six DUI arrests between 1989 and 2009.
Lindsey reportedly moved into another apartment in the complex where she, Juan, and Natalia had been living. Lindsey and Juan began drug testing in September. Juan graduated to family maintenance supervision in October 2014.
During the next months, Juan's drug tests were negative, but Lindsey routinely failed hers. She was also terminated from a perinatal program because she missed sessions, had positive drug tests, and came to one session under the influence of a drug.
In January 2015, SSA moved ex parte for a hearing to address Juan's and Lindsey's living situation. Although Lindsey was not allowed to be in the same residence as Juan and Natalia and had limited visitation rights, SSA was growing increasingly suspicious, despite Juan's and Lindsey's denials, that all three were living together or at least spending a lot of unsupervised time together. At the hearing, the juvenile court warned Juan and Lindsey what would happen if they disobeyed the court's orders regarding residence and visitation. The court explained that if they wanted to modify the orders, there were procedures to do this, but simply ignoring the orders and doing their own thing was not one of them.
At the six-month hearing, in March 2015, the court continued Juan's family maintenance supervision for another six months. At that time, SSA still suspected that Juan was allowing Lindsey access to Natalia outside her assigned hours and without the court-approved monitor. Juan also refused to believe that Lindsey was continuing to use drugs, despite her positive tests. When confronted with this evidence, he stated that she denied using drugs, and he believed her. For her part, Lindsey repeatedly evaded efforts to verify her participation in and compliance with programs, and she continued to test positive for drugs. She was in jail between April and July 2015. Juan began missing drug tests in March and April 2015.
Juan was specifically not authorized to monitor visits between Lindsey and Natalia.
On August 4, 2015, when Natalia had just turned one, police officers answered a domestic violence call from a Santa Ana residence. Juan, Lindsey, and Natalia were present when the officers arrived. Lindsey was arrested for domestic violence and child endangerment. During a late-night quarrel, she had punched Juan in the face while he was holding Natalia. Lindsey appeared to be intoxicated, after consuming 14 beers. Juan told the responding officers that Lindsey had been taking care of Natalia while he worked.
Juan later denied telling the officers that Lindsey had been taking care of Natalia.
When the social workers arrived at the Santa Ana house for an unannounced visit on the day after Lindsey's arrest, in August 2015, they observed Juan sitting in the driveway with several other men, who were drinking. Although Juan was seen holding an open beer can, he denied he had been drinking. One of the residents of the house told the social workers that Juan, Lindsey, and Natalia sometimes spent the night there on the weekends.
The official residences of both Juan and Lindsey were in Fountain Valley.
SSA filed a supplemental petition on August 7, 2015. Natalia was placed in an emergency shelter the day after Lindsey's arrest and then into foster care. A new detention hearing took place on August 10, 2015. Lindsey was allowed one visit a week while she was in jail, and Juan was allowed six hours per week, monitored. On October 7, 2015, Juan and Lindsey submitted on the supplemental petition.
Natalia's emergency caretaker reported to SSA that, at age one year, Natalia could not hold a bottle, crawl, or lie on her stomach. She would not hold the caretaker's hands to stand up, and she wanted to be carried all the time. Natalia's physical therapist concluded that Juan and Lindsey's mother held Natalia so much that she did not want to move on her own; she would not crawl or try to pull herself up to stand. By January 2016, approximately five months later, Natalia was able to walk and say a few words.
Natalia was diagnosed with macrocephaly when she was four months old. She did not need treatment for this condition, other than monitoring.
At the six-month review hearing (the second one) on April 5, 2016, the juvenile court continued services for another six months. The court warned Lindsey and Juan that if they did not comply with their case plan, the court could terminate services and set the matter for a hearing on a permanent plan for Natalia. They said they understood.
The 12-month review hearing took place on October 5, 2016. Natalia was by that time over two years old. SSA reported that Juan and Lindsey were contradicting each other regarding their relationship. Juan said he'd had no face-to-face contact with her since May 2016, while Lindsey admitted that she frequently stayed at his house. A "credible source" told SSA that Juan and Lindsey had agreed to lie to SSA about their living arrangements in order to reunite with Natalia. SSA was also told that Juan was drinking "on an ongoing basis." He began to test positive for alcohol in July and August. As for Lindsey, by June of 2016, she had missed six months of drug tests, despite telling the social worker that she had been testing. She also claimed to be attending Alcoholics Anonymous meetings, although she repeatedly forgot to bring the sign-in cards to the social worker.
Juan's brother, with whom he was living in Santa Ana, confirmed that Lindsey often stayed overnight with Juan. Juan continued to deny this.
The lab reported that Juan's alcohol levels were so high that they exceeded the instrumentation. Juan stated that he drank energy drinks at work and ate chocolate and suggested that he might have eaten food cooked in wine. He finally admitted only to drinking one can of beer in the middle of August.
At the 12-month review hearing, the court terminated reunification services and set the matter for a permanency hearing. There was no argument.
The permanency plan hearing began on March 28, 2017. Lindsey did not personally attend. The court first granted the request of Natalia's caretakers to be given de facto parent status. It then turned to Juan's request under section 388, filed in February, for a change in orders, seeking Natalia's return to him or unsupervised overnight visits. The court denied the request for a hearing on this motion. After some discussion about Juan's filing another section 388 motion and continuing the permanency hearing for that reason, which did not happen, the permanency hearing itself got underway. The current social worker and Juan both testified.
After an entire court session devoted to arguing whether the court could hear another section 388 motion from Juan and continue the permanency hearing, Juan withdrew his motion. The court concluded the permanency hearing the next day.
The court found Natalia generally and specifically adoptable. It found the parental benefit exception did not apply at all to Lindsey, because she had not been visiting. With respect to Juan, although he had been visiting regularly and well, he had not met his burden to show that maintaining a relationship with him outweighed the benefits of adoption for Natalia. Accordingly both Juan's and Lindsey's parental rights were terminated.
DISCUSSION
The sole question Juan has identified in this appeal is whether substantial evidence supports the court's decision to terminate his parental rights.
The parental benefit exception to termination is set forth in section 366.26. subdivision (c)(1)(B)(i), which provides that the court must terminate parental rights unless it "finds a compelling reason for determining that termination would be detrimental to the child . . . ." (Italics added.) One compelling reason is that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) The parent bears the burden of providing the evidence from which the court can determine that the exception applies. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) SSA was not required to produce evidence that Natalia would not benefit from continuing the parental relationship. (See In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
The parental benefit exception has two components: regular visitation/contact and benefit to the child from continuing the relationship. We regard the visitation issue as a question of fact, even though there is room for interpretation about whether visitation has been "regular." By the time of the permanency hearing, visitation is in the past, and the juvenile court has a record it can consult to see whether a parent has met this condition. But the other component - whether continuing the relationship would "benefit" the child - and the two general aspects of the exception - whether terminating the relationship would be "detrimental" to the child and whether the parental relationship so benefits the child that it constitutes a "compelling reason" to deny the child the chance to be adopted - all these involve judgment calls requiring the juvenile court to weigh and balance factors unique to each case. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [court balances quality of parent/child relationship against security and sense of belonging to a new family.]) They also require the juvenile court to predict the future as best it can, based on past events. This seems to us to rely greatly on the exercise of the court's discretion.
We are aware that other courts have broken down the analysis somewhat differently. In In re Bailey J. (2010) 189 Cal.App.4th 1308 (Bailey J.), the court regarded the existence of the beneficial parental relationship as a factual issue and the compelling reason and detriment to the child findings as discretionary. (Id. at pp. 1300-1301.) But the second part of the exception - the benefit of continuing the relationship - is not framed in terms of whether a parental relationship exists. It assumes a relationship exists, as evidenced by visitation and contact. If the parent has not been visiting, the court does not even inquire into the benefit. Instead, this part of the exception is framed in terms of the future: would continuing the parental relationship benefit the child.
The Bailey J. court did not discuss the visitation component.
The record before the juvenile court, from which it must make its prediction, contains evidence only of past events. The court must marshal not only these events, but also its observation of the witnesses, its experience with other cases, and its knowledge of legal precedent to make this final determination. If we reviewed this decision for substantial evidence, we would have only the record, not these other factors that went into it. Accordingly, we review for abuse of discretion the court's decisions regarding (1) whether continuing Juan's relationship with Natalia would benefit her and (2) whether a compelling reason was shown why terminating the relationship would be detrimental to Natalia. (See In re C.B. (2010) 190 Cal.App.4th 102, 122-123 (C.B.) and cases cited; In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) And these same decisions require us to measure the exception against the Legislature's preference for adoption. (See In re Heather B. (1992) 9 Cal.App.4th 535, 546.)
We agree with the observation that in this context there is not much to choose between abuse of discretion and substantial evidence for review purposes. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Courts have identified several factors that can assist in making the prediction of future benefit: the child's age, the portion of the child's life spent with the parent, the interaction between parent and child, and the child's particular needs. (See In re Angel B., supra, 97 Cal.App.4th at p. 467; In re Jason J. (2009) 175 Cal.App.4th 922, 937-938; In re G.B. (2014) 227 Cal.App.4th 1147, 1166.) These factors are, of course, not exclusive, and the determination must be made case by case. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
In this case, the court recognized that Juan had visited regularly after Natalia was removed from his care in August 2015. Substantial evidence in the record supports this conclusion, and no one contests it. The court then observed that Juan also had to show a relationship that outweighed the benefits of adoption and would greatly harm Natalia if severed. The court noted Natalia's young age (not yet three) and the length of time she had been with her caretakers (now de facto parents). It also noted that, while Natalia seemed glad to see Juan at the beginning of visits, she also had no problem separating from him when visits were over. The court found that her de facto parents, not Juan, played the parental role in her life. The court concluded that Juan's relationship with Natalia did not outweigh the benefits of adoption and that severing the parental relationship would not be detrimental to her.
The de facto parents began the screening for adoption in December 2016. --------
The cases cited in Juan's opening brief do not compel a different result. In fact, they show the boundless variety of circumstances with which the juvenile courts must deal when they make their decisions, a variety that tests their discretion daily. In In re S.B. (2008) 164 Cal.App.4th 289, the father had been the child's primary caretaker for three years before she was removed from her father's custody. (Id. at p. 293.) He immediately set to work on his case plan and complied with every aspect of it. (Ibid.) He also visited regularly, and his daughter became distressed when the visits ended and wanted to leave with him. (Id. at p. 294.) A bonding study opined that father and daughter had a "fairly strong" bond. (Id. at p. 296.) By the time of the permanency hearing, the child was over five years old and able to articulate that she wanted to live with her father, her mother, and her grandmother (who was also her foster parent). (Id. at p. 295.) The reviewing court reversed the juvenile court's termination order, holding that the father had established a significant parental relationship with his child and that she would be harmed by its termination. (Id. at pp. 300-301.)
That is a far cry from our case. Juan lost custody of Natalia when she was barely one year old. He did not comply with his case plan. Natalia was not distressed when visits ended. There was no bonding study, just Juan's testimony that Natalia runs to him at the beginning of visits, wants him to hold her, and responds when he says he loves her.
Likewise, C.B., supra, 190 Cal.App.4th 102 does not assist Juan. In that case, the court held, "[I]f a juvenile court determines that a parent has 'maintained regular visitation and contact' [citation], that there is a 'substantial, positive emotional attachment' between child and parent benefitting the child [citation] and that the benefit from continuing that parent-child relationship in a tenuous placement 'promotes the well-being of the child to such a degree as to outweigh' the benefit that child would gain from the stability and permanency of adoption [citation], then the parent-child relationship exception is established." (C.B., supra, at p. 128.) The appellate court returned the case to the lower court to determine whether the exception applied. (Id. at p. 129.) It did not determine the parent had met her burden to establish the parent-child benefit exception.
Juan argues that his visits with Natalia show him acting in a parental role. No one argued that Juan's visits were anything but positive and appropriate. But Juan overlooks his conduct outside of the visits, conduct that the court was entitled to consider when it weighed a continuing relationship with Juan against adoption as being better for Natalia. The record showed over and over that Juan could not be relied upon to protect Natalia from Lindsey, who was still deeply into her addiction. His own continuing sobriety was also questionable - and especially concerning considering his multiple DUI arrests. Despite his unquestioned love for her, Juan repeatedly showed he was not reliable when it came to putting Natalia first.
Juan complains that the court ignored the bond between himself and Natalia when it made its decision. The record does not support this complaint. On the contrary, the court recognized that Juan and Natalia had a relationship - a good relationship. But the court's task was not simply to determine whether such a relationship existed; it also had to decide whether continuing the relationship outweighed the benefits of adoption for Natalia. This determination rested not just on the amount of time Natalia had spent with Juan during her life - compared with the time spent with her foster caregivers - but also on Juan's conduct as a parent during his time with Natalia. Although he had fed her and changed her diapers, he had also failed to keep Lindsey away from her, defied the court's orders on this subject, and lied to SSA. After Natalia's removal, he began drinking again and lied about that too. The court had to consider the big picture and, given all the circumstances, predict what would be best for Natalia. From this remove, we cannot say the court abused its discretion in determining that the best hope for Natalia's future lay in adoption rather than in a continued relationship with Juan.
DISPOSITION
The order terminating the parental rights of Juan L. and Lindsey E. is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.