Opinion
E070473
08-20-2018
In re E.T. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. E.T., Defendant and Appellant.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. RIJ113200) OPINION APPEAL from the Superior Court of Riverside County. Walter H. Kubelin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Father appeals the orders terminating his parental rights and freeing up his three children for adoption by the parental grandparents, with whom they had lived their entire lives. The children were eight, seven, and just about to turn six at the time of termination. Father argues the juvenile court erred in ruling the strength of his parental bond with them did not outweigh the permanency benefits of adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i), unlabeled statutory citations refer to this code.) We affirm.
I
FACTUAL BACKGROUND
A. The Petition
The subjects of this dependency are three of father's children, a boy and his two younger sisters. The boy was five years old at the start of the proceedings, and the girls were three and four. In July 2015, the Riverside County Department of Public Social Services (DPSS) received a referral from an anonymous source who said father smokes marijuana outside the home and they could hear what appeared to be yelling and sounds of beating coming from the home. A few days later, the social worker visited the home where father and his three children lived with his mother and stepfather (the paternal grandparents or grandparents). Father admitted regularly using marijuana but said the grandmother supervises the children when he smokes. He denied ever using corporal punishment, and the children had no signs of bruises or marks to indicate otherwise. Father was unemployed and received $400 a month on food stamps. He said he had obtained custody of the children due to mother's history of drug abuse. Father agreed to drug test on the spot, and the results were positive for marijuana.
Father has three older children who live with their mothers.
The court also terminated mother's parental rights, but she is not a party to this appeal. --------
The grandmother was a retired county worker and had lived in the home for the past 15 years. She said father and the children had been living in her home for the past five years. She denied ever physically or verbally abusing the children. "We are a loud family from Louisiana. We talk loud but don't mean any harm." She said she always watched the children while father smoked marijuana—outside the home, never inside.
In August 2015, it appears father got into an argument with the grandmother and took the children with him to a hotel. The grandmother reported the incident because she wanted the children to return to her home. The social worker met father at the hotel and explained it wasn't a safe or appropriate place for the children. He agreed to return them to the grandmother's house and take a drug test. The test came out positive for methamphetamine and amphetamine.
Upon receiving the test results, the social worker met with the family again. The grandmother said father had been acting "paranoid" towards her. She explained her intent was not to take the children away from father but to do whatever was in their best interests. Father denied having used methamphetamine, but agreed to a safety plan that included drug treatment and parenting programs. About a week after that meeting, on September 3, 2015, he tested positive for alcohol and marijuana. He denied drinking alcohol to the social worker and guessed he must have been getting false positives as a result of the "different mixture of pills" he was taking. He suspected mother was responsible for his positive methamphetamine test by putting "a pill in his drink."
In September 2015, DPSS filed a dependency petition on behalf of the children, alleging (among other things) that they fell under section 300, subdivision (b) because father cared for the children while under the influence of controlled substances.
B. Jurisdiction/Disposition
Father denied the petition allegations against him. He said the pills he takes for back pain caused him to test positive for methamphetamine and mouthwash caused his positive alcohol test. He told the social worker he'd stopped attending the substance abuse treatment program because they didn't allow marijuana use. He said he smokes marijuana every Friday for back pain. The social worker informed him there were no programs that would allow him to continue smoking marijuana while in treatment. He believed the court had not prohibited his marijuana use, just other controlled substances.
The grandmother said she didn't think father was a drug addict, but she agreed he needed to be drug free to care for the children and needed to participate in a drug treatment program. The grandfather said father was a "good father" but needed to "step up" and get a job to support his family. He reported the children had always lived with him and his wife and their home was "all they knew."
As of November 2015, father was still not complying with his case plan. He was not attending a treatment program and had failed to show for several drug tests. When he finally tested on November 9, 2015, the results were positive for marijuana. On November 19, DPSS filed an amended petition alleging father refused to enter substance abuse treatment. The court detained the children from father, placed them with the paternal grandparents, and gave father supervised visits. Father continued to not show up for drug testing in November and December. On December 10, 2015, father enrolled in a treatment program. On February 3, 2016, the social worker called father at 10:00 a.m. and told him to report for a random drug test, to which he replied, "do you mean I have to get up?" Father ultimately agreed to go test, but the social worker learned later that he had been a no-show that day. Several days later, on February 10, 2016, father tested positive for marijuana, methamphetamine, and amphetamine.
During the first few months of supervised visits at DPSS's offices, staff noticed father would arrive smelling of marijuana. The social worker described the visits as generally pleasant, but noted father consistently "displayed a lack of engagement for the first half of the visit" by sitting on the couch and watching the children play by themselves. In the early part of 2016, DPSS cleared father's girlfriend with whom he was living to be a visitation supervisor.
On March 1, 2016, DPSS amended the petition to remove the allegation that father was refusing to participate in substance abuse treatment. That same day, the court held the jurisdiction/disposition hearing and found the allegations against father true. The court removed the children from him and ordered family reunification services.
C. Six-month Review
The children were doing well in the grandparents' care. They were "visibly bonded" to their caregivers and "look[ed] to them for love and attention." The couple wanted to adopt the children if the parents were unable to reunify.
Upon receiving reports from several DPSS staff members and the security guard that father had a "strong marijuana smell" during visits, the social worker asked him not to smoke before visits, and he agreed. The social worker reported father would look at his phone for the first half of the visit, then spend the second half engaging with the children and playing games. Starting in April 2016, the visits moved from DPSS offices to the grandparents' home. In May 2016, father cancelled his scheduled home evaluation, saying he and his girlfriend were stuck in traffic coming home from Las Vegas.
By June 2016, father had stopped participating in substance abuse services and missed multiple drug tests. By August, he had stopped communicating with DPSS. That month, the social worker learned he had taken the children on an unsupervised, unapproved trip to a local amusement park.
D. Twelve-month Review
The social worker was not able to reach father for most of the 12-month review period and had to communicate with him through his girlfriend or the grandmother. He remained unemployed and was living at his girlfriend's home in Moreno Valley. In September 2016, he tested positive for methamphetamine.
From August through November, he visited the children sporadically. When visits did occur, the children were happy to see him and affectionate with him.
In early 2017, he began making some progress on his case plan. He completed a substance abuse program in February, and tested negative for all substances in March, and agreed to participate in a Wraparound Program. At the 12-month review hearing, the court continued his reunification services.
E. Eighteen-month Review
The children continued to thrive in the grandparents' care. They were doing well in school and the grandparents were meeting their emotional, physical, developmental, and educational needs.
As a result of father's progress, DPSS recommended giving him family maintenance services. The social worker noted that although his participation had formerly been inadequate, he had "significantly improved" in the past three months by completing a substance abuse program, testing clean for methamphetamine, testing at decreased levels of marijuana, visiting "positively and consistently" with his children, and showing a "genuine" desire to reunify. Visits progressed to unsupervised weekend visits at the girlfriend's home, and the children were reported to enjoy them.
Unfortunately, things took a turn for the worse during the summer of 2017. In June, despite having told the social worker he was going to give up marijuana completely, father had a positive test and then failed to show for the next three tests. During this time, he was not responding to the social worker's text messages. The girlfriend admitted she had been the one calling the on-demand drug test number even though father was supposed to be doing it himself.
At a Wraparound meeting in late June, father and his girlfriend fought in front of the social worker and Wraparound team. They blamed each other for their difficulties and admitted they would argue loudly and angrily in front of the children. The girlfriend said father had a bad temper and would call her names and scream at her in the children's presence. She said she wanted to end the relationship because he was "mean and disrespectful." She also reported that during one of the children's weekend visits she had called the grandmother to say she was bringing them back to her house because the fighting between her and father was "affecting the children's well-being." After witnessing the fight, the social worker suspended unsupervised weekend visits and the couple agreed it would be better for father to visit the children at the grandparents' home.
Father and his girlfriend failed to show for the next Wraparound meeting on June 29, 2017 and didn't inform the team they were cancelling. The team waited for an hour while the grandmother tried unsuccessfully to reach the couple. Later, the girlfriend told the social worker they had been having car trouble. The next Wraparound meeting was scheduled for July 14 and father asked to reschedule because he was going to New York with his girlfriend for his birthday.
In July, he tested positive for marijuana twice and failed to show for an on-demand test. DPSS filed an addendum report recommending the court terminate his services. The social worker was concerned about his "lack[ of] follow through," avoidant communication style, and inconsistent drug testing. She was also concerned about his unstable relationship with his girlfriend and the affect it had on the children. Father was completely dependent on his girlfriend for money, housing, food, and care of the children. On July 27, 2017, the court terminated his reunification services and set a permanency planning hearing for November 2017.
F. Termination of Parental Rights
Leading up to the permanency planning hearing DPSS recommended terminating father's parental rights and selecting adoption as the children's permanent plan. By that point, the children had been placed with the grandparents for two years and were doing well in their care. The social worker reported that since their removal from father, the children had "stabilized and their negative behaviors [] decreased dramatically." She wrote that the grandparents were "doing an excellent job of providing the children with structure, supervision, and nurture that is suitable for their individual needs." The children, who were seven, six, and five at the time of the report, were comfortable in the grandparents' home and were attached to their caregivers.
Visits with father during this period were supervised by the grandmother, who said visits were positive and appropriate, but also said father had been inconsistent in his attendance, visiting several times in one week then not at all the next. Father would play with the children and take them for walks. The children said they enjoyed the visits.
In November 2017, DPSS submitted a preliminary assessment of the grandparents recommending adoption. According to the assessment, the children were physically healthy and were "very bonded" to their caregivers, as the caregivers were to them. The grandparents lived in a two-story house with three bedrooms, two bathrooms, and a large backyard. The grandfather was 59 years old and enjoyed his job as an assembler. The grandmother was 61 years old, retired, and enjoyed staying home with the children and being a homemaker. The couple described themselves as "emotionally close to [the children] since they have always lived with them." Father's son told the evaluator he wanted to stay in the grandparents' home and be adopted by them. Similarly, the daughters said they loved their current home and wanted to be adopted by the grandparents.
The court continued the permanency planning hearing for several months to allow father to show he could decrease his marijuana levels and not be under the influence during visits. In December 2017, father tested positive for marijuana and methamphetamine and failed to submit to several tests.
On March 1, 2018, the court again continued the permanency planning hearing, giving father another chance to show he could be responsible about his marijuana use. The court stated, "I'm not saying you have to stop. I'm not saying you don't have a medical marijuana card. I'm not saying it's not legal in this state . . . But I need to know that your children are safe and secured." "I'd say the same if you were positive for opiates and it was a prescription versus heroin on the streets because you can't take care of your children when you're not sober. And you can't take care of your children until you can take care of yourself."
In March and April 2018, father failed to show for one drug test and tested positive for marijuana five times, with his cannabinoid levels increasing over time. On April 11, 2018, he arrived 20 minutes late to a visit. Despite knowing the children would be coming from school after a minimum day, he didn't bring any food. When they told him they were hungry, he terminated the visit early because he was unprepared and unable to come up with a solution.
The court held the permanency planning hearing on May 3, 2018. Father testified briefly. He could not remember how long his children had been removed from his care, but said he had tried to maintain visits with them since the beginning of the year. At those visits, they would "hug, kiss, [and] pray." He would try to find out about their teachers and their day, and make sure they read for an hour after school. He would also help them with homework, and said he had volunteered at their school. When asked if he knew about his youngest daughter's upcoming birthday, he said he knew she was turning seven. When his counsel informed him she was in fact turning six, father acknowledged his mistake, saying "my time is off." Father believed he had a "strong bond" with his children and felt being a parent was a "badge of honor." His counsel argued the parental benefit exception to terminating parental rights applied because he visited the children consistently and was bonded with them.
The children's attorney recommended adoption. She argued father was simply a "visitor." "He's not a parent. In fact, there have been times when father has either missed his visits, cancelled them or gone to Vegas to celebrate his birthday instead of having his children. . . . I know that his children love him very much, but we have to look at . . . what's in the best interest of the children. And what is in the best interest is that the parental rights be terminated and these grandparents become the parents legally." Counsel for DPSS added that father had been given nearly three years of services, during which time DPSS was hoping he would "step up to the plate," but he had progressed to unsupervised visits for only a brief period of time.
The court found the parental benefit exception did not apply, concluding the grandparents were the only "parental figures that these children know" and the bond with father was insufficient to overcome the statutory preference for adoption. The court explained, "There is no doubt in this Court's mind that the father loves his children. There's no doubt in this Court's mind that the father has visited the children over the years. There is also no doubt in this Court's mind that father was given ample time to engage in the appropriate services to become the parent that he desires to be, and he did not take advantage of those services."
II
DISCUSSION
Father argues the court's failure to apply the parental benefit exception was error. We disagree.
The Legislature prefers adoption where possible. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) Once the juvenile court finds a child is adoptable, the parent bears the burden of proving one of the exceptions to terminating parental rights exists. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) "[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. (2000) 78 Cal.App.4th 1339, 1350.)
The exception at issue here, commonly called the parental benefit exception, "applies when there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also § 366.26, subd. (c)(1)(B)(i).) California courts have interpreted this exception to apply to only those parent-child relationships the severance of which "would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
As our courts have emphasized time and again, friendly, even loving, relationships are not enough. (E.g., In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419-1420 [although child loved mother and saw "a lot of [her]," exception did not apply because she was more of "a close aunt" than a parent].) "[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) In order to trigger the exception, a strong parent-child bond must be coupled with an effort on the parent's part to play a significant role in the child's life and a desire on the child's part to not be separated from the parent. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 ["parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits"].) "It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship." (In re Jasmine D., at p. 1350.)
"[T]he court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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." (In re J.C. (2014) 226 Cal.App.4th 503, 528-529.) We defer to the juvenile court's determination whether a beneficial parental relationship exists, reversing only where the court has abused its discretion by basing findings of fact on less than substantial evidence or by acting arbitrarily or capriciously in determining whether the relationship provides "a 'compelling reason' for finding detriment to the child." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.)
Here, it is undisputed father had positive and relatively consistent supervised contact with his children. We therefore turn to the issue of whether the parent-child bond was so strong and his role as a parent was so significant that the children would be "greatly harmed" by adoption. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) While we have no doubt the children love father and enjoy spending time with him, those facts on their own are insufficient to trigger the parental benefit exception. The exception does not apply where "a parent has frequent contact with but does not stand in a parental role to the child." (In re Beatrice M., supra, 29 Cal.App.4th at pp. 1419-1420.) "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
Father cannot satisfy that burden. He was given nearly three years of services and repeatedly failed to reunify with his children. He arrived at visits under the influence of marijuana and spent many of his valuable visitation hours disengaged from his children, looking at his phone, or fighting with his girlfriend. At different points of the dependency, every party involved—children's counsel, DPSS, the grandparents, and the court—voiced hope that father would get his act together and act like a responsible parent. But even as late as April 2018, he was not behaving like a parent during visits, arriving late and leaving early because he didn't think to bring snacks to an after-school visit.
But even if father's desire to occupy a parental role hadn't taken second seat to his drug problem, he still would not be able to demonstrate the children would be greatly harmed by adoption. Father's biggest hurdle in this appeal—one he unfortunately cannot surmount—is the fact the children have lived with the prospective adoptive parents their entire lives and want to be adopted by them. (Cf. In re S.B. (2008) 164 Cal.App.4th 289, 295-298 [parental benefit exception applied where the father was the primary caretaker for three years and had complied with every aspect of his case plan, plus a psychologist had concluded severing parental rights would harm the child].) Far from showing signs of distress by being separated from father, the children "stabilized" once they were placed in the grandparents' care and their negative behaviors decreased "dramatically." And, as the juvenile court aptly noted, the grandparents were "the [only] parental figures that these children know."
Citing In re C.B. (2010) 190 Cal.App.4th 102, father argues the fact the court ordered continued supervised visitation after termination of parental rights demonstrates it improperly applied the parental benefit test. First, father misconstrues the record. The court did not order continued visitation with him. It simply informed the grandparents they could let him come to their home and see the children under a supervised setting if they were "comfortable with [that]." Second, this case is not like In re C.B., where the court concluded the exception did not apply based solely on its expectation the adoptive parents would allow the children to continue seeing their biological mother. (Id. at p. 128 [a court may not "terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent"], italics added.) Here, the court independently concluded the exception did not apply and then informed the grandparents it was up to them whether father could visit their home and see the children. This is simply an accurate statement of the nature of postadoption visitation agreements. They are wholly nonbinding and completely voluntary on the adoptive parents' part. (Ibid.) Nothing about the court's ruling indicated it was improperly basing its decision to terminate parental rights on the condition the grandparents help father maintain his bond with the children after adoption.
Finally, we reject father's assertion that guardianship is a more appropriate permanent plan. While guardianship "is a more stable solution than foster care," it "falls short of the secure and permanent placement intended by the Legislature" when it made adoption the preferred permanent plan. (In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1215.) "Continuity in a legal guardianship is not equivalent to the security and stability of a permanent caretaker. The goal of permanency planning is to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker." (Id. at pp. 1215-1216.) At best, father has established he had pleasant supervised visits with children who have spent much of their lives outside his care. After nearly three years of dependency, the children deserve the permanent, stable home their grandparents will provide.
III
DISPOSITION
We affirm the trial court orders and the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: McKINSTER
Acting P. J. FIELDS
J.