Opinion
E066125
01-04-2017
In re S.C. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.C. et al., Defendants and Appellants.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant R.G. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ1400526) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant R.G. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
J.C. (mother) and R.G. (father) appeal from orders of the juvenile court terminating their parental rights. Father's appeal relates to L.C. (the child) and mother's appeal relates to L.C. and S.C. Father contends the court erred by finding the benefit exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), did not apply. We conclude there is substantial evidence to support the juvenile court's ruling, and the court did not abuse its discretion by terminating father's parental rights.
Mother's opening brief merely joins in the arguments made in father's opening brief. (Cal. Rules of Court, rule 8.200(a)(5).) It does not address the termination of her parental rights as to L.C. or S.C. Father is not related to S.C.
I.
FACTS AND PROCEDURAL BACKGROUND
When mother gave birth to the child, she tested positive for opiates, benzodiazepines, and amphetamines. Although the child tested negative for drugs, nursing staff reported the child showed signs of drug withdrawals, including twitching. Mother denied using drugs, and the nurses reported mother was not bonding with the child and would send the child back to the nursery when she ate. Two days later, a social worker with the Riverside County Department of Public Social Services (DPSS) responded to the hospital. The social worker noted the child's nose and bottom were very red, and his skin was blotchy. A nurse informed the social worker the child had a "shrilling scream." The nurse also indicated all of these were signs the child was going through drug withdrawals. Mother reported that she had a "domestic violence relationship" with father, and father cursed and pushed mother around throughout the pregnancy. Father came to the hospital, but had to be escorted out by security because he was yelling and screaming, and he appeared to be under the influence of drugs.
During an interview with the social worker, mother admitted she was addicted to prescription pain medication and used Norco. Mother told the social worker she was frightened by father and reported father used amphetamines and physically fought with mother in the presence of her daughter S.C. When asked if she had provisions for the child at home, mother gave contradictory answers. When the social worker visited the mother's home, the social worker found no provisions for the child. Father told the social worker that he smokes marijuana and admitted to using methamphetamines a few weeks prior. Father also admitted to having physical altercations with mother. Father had no provisions for the child.
DPSS detained the child and S.C. and filed a petition with the juvenile court alleging mother and father had failed to protect the children because of their drug use, domestic violence, and lack of appropriate provisions. (Welf. & Inst. Code, § 300, subd. (b).) At the detention hearing, the juvenile court found a prima facie case had been made that the child was a dependent child within the meaning of section 300, subdivision (b)(1), and ordered him removed from mother and father's custody and care. The court ordered mother and father to be provided with reunification services, including alcohol and drug screening, and ordered that mother and father have liberal visits with the child while he remained in the hospital and visits with the child for a minimum of twice a week thereafter.
Unless otherwise indicated, all additional undesignated statutory references are to the Welfare and Institutions Code.
In a report filed for the jurisdiction and disposition hearing, DPSS recommended, inter alia, the juvenile court find the allegations in the petition true, declare the child to be a dependent child within the meaning of section 300, subdivision (b), and order the child to remain in foster care. The social worker reported mother had appropriate visits with the child, but the foster family agency had difficulties arranging visits for father.
In an addendum report, the social worker reported mother showed up for visits "appearing highly medicated or under the influence of some type of substance," was unkempt, and became angry when the social worker tried to redirect or correct mother as to how she should conduct herself during the visit. Father began visiting the child with mother, but the social worker reported father and mother focused on each other and not on the child. In addition, father "caused scenes" during visits at a DPSS location and stormed out. Father focused on his issues with the social worker during visits rather than bonding with the child. The social worker also reported father failed to report for two random drug tests and had tested positive for marijuana on another occasion. Father's progress on his case plan was minimal. He began attending substance abuse classes, but failed to engage in anger management or parenting courses. Although previously father had admitted to using methamphetamines once prior to the child being detained, father now admitted to using methamphetamines daily for the last six or eight months.
DPSS filed a first amended petition again alleging the child was a dependent child within the meaning of Welfare and Institutions Code section 300, subdivision (b), and amending some of the allegations against mother and father. At the jurisdiction and disposition hearing, the juvenile court sustained the amended petition, ordered the child to remain in his foster home, and directed liberalized visitation, including unsupervised visits and overnight visits, depending on mother and father's progress.
In a six-month status review report, the social worker reported mother had been arrested and spent three days in jail for assaulting father. Father obtained a restraining order against mother. Father submitted to a random saliva drug test, which came out negative. The social worker reported the child was still experiencing drug withdrawals, but was otherwise a happy baby and was bonding with his parents during supervised visits. The child was thriving in his foster home, and the social worker recommended he stay in his current placement. The social worker reported father completed a parenting class, but she could not verify that father complete a substance abuse program. Although father completed 11 weeks of anger management classes, he continued to willfully engage in acts of domestic violence with mother. Father visited regularly with the child, but on a few occasions visits were cancelled because mother and father had engaged in acts of domestic violence. During one joint visit, mother and father shouted at each other and were belligerent. The social worker opined mother and father had failed to address the domestic violence in their relationship. The foster parents consistently showed they were committed to providing the child with a safe, loving, and stable home.
At the six-month review hearing, the juvenile court found that returning the child to his parents would create a substantial risk of detriment to his safety and well-being, and ordered that he remain in his foster placement. The court found mother and father made "adequate but incomplete" progress on their case plans, ordered additional reunification services, and set a 12-month review hearing.
In a report filed for the 12-month status review hearing, the social worker recommended the juvenile court terminate reunification services to mother and father and set a hearing for termination of parental rights and implementation of a permanent plan pursuant to section 366.26. The social worker reported father denied having a "current problem" with substance abuse. Father completed substance abuse treatment, but he tested positive for marijuana and prescription pain medications. On one occasion, he tested positive for amphetamines and opiates. Father also completed a parenting course and anger management classes, but the social worker reported father did not benefit from the latter because he continued to engage in acts of domestic violence with mother and minimize the issues that resulted in the removal of the child from his care. Father visited regularly with the child, except during a period of incarceration. The social worker opined mother and father had not made positive changes despite being afforded 12 months of reunification services and concluded the child would be placed at risk of danger or neglect if he were returned to the parents' custody. In an addendum, the social worker reported the child continued to thrive in his foster home and bonded with his foster mother.
At the 12-month status review hearing, the juvenile court found returning the child to his parents would be detrimental to his safety and well-being, found the child should continue in his foster home, and terminated reunification services to mother and father. The court found father had made minimal progress toward mitigating the need for the dependency, and that there was not a reasonable probability the child would be returned to his parents' care if additional services were provided. The court also reduced visitation to twice a month and set a hearing under section 366.26 for termination of parental rights and implementation of a permanent plan.
In her report for the section 366.26 hearing, the social worker recommended the court terminate parental rights and select adoption as the permanent plan for the child. The child continued to thrive in his foster home. The social worker reported that during her announced and unannounced visits with the foster family, the child appeared to be bonded with his foster parents and enjoyed being in their company. The child referred to his foster parents as "mommy" and "daddy," and the foster parents continued to express unconditional love for the child. The social worker concluded the child was adoptable, and his foster parents expressed a desire to adopt him. In an addendum, the social worker reported the foster parents had been successfully assessed for adoption, and the child had been provided with an appropriate home and was bonded with his foster parents.
At the section 366.26 hearing, father testified he visited regularly with the child except during a period of incarceration and described the quality of the visits as "breathtaking." Father testified he and the child interacted well, and stated the child would run to him when he arrived for a visit and would cry when he left. Father testified the child called him, "Pops." Father's attorney argued there was evidence of a bond between father and the child, and father had been consistent in his visits. Counsel argued the benefit exception to termination of parental rights applied. Counsel then requested the juvenile court not terminate father's parental rights and, instead, select a plan for the child other than adoption.
Counsel for DPSS acknowledged father had consistently visited with the child, but argued there was no evidence of a bond between father and the child. Counsel argued the child was one year old and had lived with his prospective adoptive family for almost his entire life. In contrast to father, counsel argued the evidence showed the child was bonded to his prospective adoptive family and referred to them as "mommy" and "daddy." Therefore, DPSS requested the juvenile court terminate father's parental rights. Counsel for the child said father should be commended for his consistent visits, but counsel argued father had limited contact with the child since his birth, whereas "the child is clearly very bonded to the prospective adoptive parents." Counsel for the child argued father did not meet his burden of establishing application of the benefit exception and requested the juvenile court terminate father's parental rights. Father's attorney responded the child does recognize father, father's visits with the child were positive, and there was sufficient evidence of a bond between father and the child.
The juvenile court found father maintained regular visitation and contact with the child, and the visits had been appropriate. However, the court found father had not "occupied a parental role" for the child. The child had never lived with father, and visitation with father never progressed to extended overnight or weekend visits. In addition, the court found father continued to engage in acts of domestic violence with mother during the course of father's visitation. Therefore, the court found the benefit to the child of a continued parental relationship with father did not outweigh the benefit he would derive from adoption. The court found the child was likely to be adopted and terminated father's parental rights.
Father timely appealed.
II.
DISCUSSION
"Section 366.26 provides that if parents have failed to reunify with an adoptable child, the juvenile court must terminate their parental rights and select adoption as the permanent plan for the child. The juvenile court may choose a different permanent plan only if it 'finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child [because]: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.' (§ 366.26, subd. (c)(1)(B)(i).)" (In re Marcelo B. (2012) 209 Cal.App.4th 635, 642.)
As the parties note in their briefs, the appellate courts are divided on the appropriate standard of review of a juvenile court's conclusion that the benefit exception does not apply. Some courts have applied the abuse of discretion standard while others have applied the substantial evidence test. (See In re Scott B. (2010) 188 Cal.App.4th 452, 469.) Recently, some courts have taken a middle approach, applying the substantial evidence test to the juvenile court's factual finding of whether there exists a beneficial parent-child relationship, and applying the abuse of discretion standard to the juvenile court's "'"quintessentially" discretionary decision'" that termination of parental rights will not be detrimental to the child. (In re K.P. (2012) 203 Cal.App.4th 614, 621-622, quoting In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.) We need not decide which approach is correct because under either standard, the juvenile court did not err.
There is no dispute on appeal that father had visited regularly with the child, and that those visits went well. The pertinent issue then becomes whether the second prong of the exception applies, i.e., whether the child would derive a greater benefit from continuing the parent-child relationship than he or she would from being adopted. (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
In re Autumn H. (1994) 27 Cal.App.4th 567, is the seminal case regarding exceptions to the preference for adoption. There, the court held that parent-child relationships that can prevent termination of parental rights are ones that promote "the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the 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." (Id. at p. 575.)
"The exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs are some of the variables which logically affect a parent/child bond." (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
Adoption cannot be thwarted simply because a child would derive some benefit from continuing the parent-child relationship, and adoption should be ordered when the court finds that the relationship maintained through 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.) The juvenile court may reject the parent's claim simply by finding that the relationship maintained during the visitation does not benefit the child significantly enough to outweigh the strong preference for adoption. To apply the exception, the court must find compelling reasons to apply the exception. Only in an extraordinary case will the preservation of parental rights prevail over the Legislature's preference for adoption. (Ibid.)
Although there is no dispute that father genuinely loves the child and that there is some bond between them, the evidence did not demonstrate how deeply attached father was to the child, and no bonding study was ever conducted. Father testified the quality of his visits with the child was "breathtaking," he and the child interacted well, the child would run to him when he arrived for a visit and would cry when father left, and the child called him, "Pops." However, there was no evidence the child had a sufficiently strong bond with father such that termination of the parental relationship would be detrimental to the child. In contrast, the evidence demonstrated the child was thriving in his foster home and had strongly bonded with his prospective adoptive parents.
Considering the child's tender age, the fact the child lived with his foster parents for most of his short life, and the demonstrated strength of the bond between the child and his prospective adoptive parents, the juvenile court did not err by concluding the bond between father and the child was not so substantial that severing it would be detrimental. The benefits the child might derive from a continued parental relationship with father, whose long-term ability to safely provide for him had not yet been proven, did not outweigh the benefits he would derive from a stable and secure adoptive family. The record supports the trial court's findings, and we find no abuse of discretion.
III.
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: HOLLENHORST
Acting P. J. CODRINGTON
J.