Opinion
E066903
02-14-2017
In re A.D. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. T.D., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J258888 & J258889) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
On September 7, 2016, the juvenile court terminated defendant and appellant, T.D.'s (Father), parental rights as to A.D. (born in April 2013) and D.D. (born in March 2009) (collectively the children). On appeal, Father contends insufficient evidence supported the court's determination that the beneficial parental relationship exception did not apply. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 18, 2015, a City of Redland's police officer requested an immediate response by a social worker from defendant and respondent, San Bernardino County Children and Family Services (CFS), with respect to the children. Father and B.D. (Mother) (collectively Parents), had been homeless with the children and sleeping in the park or on the back steps of a church for the past three months. Parents had failed to follow through with two appointments previously arranged by the officer to secure them housing because they said it was too difficult for them to walk the two blocks to the housing office. Parents had also failed to show up for an appointment to secure them housing made by officials at D.D.'s school.
Mother is not a party to this appeal.
The children were filthy, smelling of feces and urine. D.D. had not attended school in over a month. Father admitted both he and Mother used methamphetamine. The family had seven prior CFS investigations. Father had an extensive criminal history, including multiple drug offenses and domestic violence incidents. The officer's check of Parents' belongings revealed a half empty bottle of vodka and a stolen driver's license, social security card, and debit card.
CFS filed a juvenile dependency petition alleging Parents had substance abuse problems (b.1 & b.5), lived unstable lifestyles and lacked parenting skills (b.2 & b.6), engaged in domestic violence (b.3 & b.7), had been arrested for willful cruelty to a child (b.4 & b.8), were currently incarcerated with no arrangements for the support of the children (g.9 & g.10), and that Mother had failed to reunify with one of the children's other siblings (j.11). On February 23, 2015, the court detained the children.
In the subsequent jurisdiction and disposition report filed on March 12, 2015, the social worker recommended that the court remove the children, deny reunification services to Mother pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11), and grant reunification services to Father. The social worker noted the children did not cry or show any concern upon being taken from Parents. It was discovered that, prior to being homeless, the family had been living for several years with the maternal grandmother and her husband; Mother and her sister had previously been sexually abused by their stepfather and Mother had been removed from the maternal grandmother's care until Mother's majority. Mother did not believe it was a "big deal" since her stepfather was never convicted of the offenses and he was older now and did not pose a threat to the children in her opinion.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father admitted to a 27-year addiction to methamphetamine. He also related that he had untreated mental health problems, including bipolar disorder with psychotic features. D.D. had missed 34 days of school and been tardy on an additional 19 occasions. Parents were told to complete an on-demand drug test on March 5, 2015; both failed to show. Father reported that, prior to detention, the children had mostly been eating cookies, but had a hot dog a week earlier. Father admitted the children had not had "meat in months." After witnessing the children fighting, D.D. reported to the foster parent that Parents "do that."
This despite the fact that Mother received $490 a month in welfare and $560 a month in food stamps. --------
On March 13, 2015, CFS amended the juvenile dependency petition to add allegations that Father had mental health issues (b-10) and that Parents should have known that living with a known sexual predator placed the children at risk of sexual abuse (b-5, b-11, d-12, & d-13). On March 16, 2015, the court set a mandatory settlement conference and ordered Parents to drug test that day. Parents failed to show up for the mandatory settlement conference. The court found the allegations in the petition true, removed the children, denied Mother reunification services, and granted reunification services to Father.
In the status review report filed on October 2, 2015, the social worker recommended that the court continue Father's reunification services. Father had not completed any portion of his case plan. Father attended an intake appointment for a substance abuse treatment program, where he was found to be inappropriate for treatment due to his current narcotic prescription and acute medical condition. He was referred back to his medical provider and told to return once he took care of his medical condition.
The social worker attempted to contact Father four times in August. She later saw Father walk into and leave the office unimpeded in order to pick up a bus pass. On August 20, 2015, the social worker spoke with Father, who told her he could not meet with her because he was physically incapable of walking to the office. Father said he could not participate in services due to the effects of his medication. He said he had not been taking his medication consistently because he wanted to get the children back. Father said he would enroll in services that day; as of September 15, 2015, Father had still failed to enroll in any services.
Father had failed to show for five drug tests, tested positive on six occasions, and tested negative nine times. Parents visited the children regularly, but did not interact with them; they tended to sit and watch the children play. Father eventually enrolled in a substance treatment program on September 25, 2015. At the hearing on October 27, 2015, the court continued Father's reunification services.
In the status review report filed on April 8, 2016, the social worker recommended that the court terminate Father's reunification services and set a hearing pursuant to section 366.26. Father had still failed to complete any portion of his case plan. He had completed five out of 12 sessions of individual therapy, but was terminated after missing three sessions. The social worker gave Father an additional counseling referral, but Father was again terminated for missing three additional sessions. Father's outpatient substance abuse services were terminated on January 13, 2016. The social worker provided Father another referral, but he had yet to reenroll. Father had five negative drug tests and six no shows during the reporting period. Father visited the children regularly; the social worker described the visits as "positive."
Father was living with Mother, which the social worker posited placed the children at risk because Mother had failed to address her own issues and had previously failed to reunify with a child. The social worker noted the children wished to be "home" with the Parents; however, "[t]he children appeared to have benefitted from the schedule and structure that the current caregiver provides . . . ." At the hearing on April 27, 2016, the court terminated Father's reunification services and set the section 366.26 hearing.
In the section 366.26 report filed on August 15, 2016, the social worker recommended that the court terminate Parents' parental rights. Father continued to have positive visits with the children; he had missed four visits due to the hospitalization of his grandmother and his own illness. Father engaged and interacted well with the children. The children had been placed with the prospective adoptive parents (PAPs) on February 18, 2015: "Both the children and their caregivers have developed a mutual attachment and the children are very attached to their caregivers."
At the section 366.26 hearing on September 7, 2016, Father testified the children called him "daddy" and told him they love him. Father and the children had a "big bond"; they run to hug him at visits. After argument, the court found there had been consistent visitation. However, the court found the children adoptable and that the benefits of maintaining the relationship with Parents was outweighed by the stability and permanency which would be provided in an adoptive home. The court terminated the Parents' parental rights.
II. DISCUSSION
Father contends the court erred in finding the beneficial parental relationship exception to termination of parental rights inapplicable. Father argues the court should have implemented a lesser plan, such as a legal guardianship or a long-term foster care plan, instead of terminating his parental rights. We disagree.
Once reunification services have been terminated and a child has been found adoptable, "adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Under section 366.26, subdivision (c)(1)(B)(i), one such exception exists where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." A beneficial relationship is established if it "'promotes 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 re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) "The parent has the burden of proving that termination would be detrimental to the child . . . ." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)
"'[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.' [Citation.]" (In re C.F. (2011) 193 Cal.App.4th 549, 555.)
"[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; accord, In re Casey D., supra, 70 Cal.App.4th at p. 51.) "We determine whether there is substantial evidence to support the trial 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.] If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights . . . ." (In re S.B. (2008) 164 Cal.App.4th 289, 297-298.)
Here, Father failed to demonstrate that termination of his parental rights would be detrimental to the children. It is notable that the children did not cry or show any concern upon their initial detention from Parents. Likewise, during initial visitation, Father did not interact with the children; instead, he simply sat and watched the children play. Nonetheless, the social worker noted that during Father's subsequent, consistent visitation, he interacted with the children; later visitation was described as "positive." Indeed, the children at one point wished to return "home" to the Parents.
Nevertheless, the social worker noted the children benefitted from the schedule and structure that the PAPs provided. The children and their caregivers had "developed a mutual attachment and the children are very attached to their caregivers." At the time Father's parental rights were terminated, both children had been in the PAPs' custody for over a year and a half; A.D. had been in the PAPs' custody for approximately half his life. Sufficient evidence supported the juvenile court's determination that maintenance of the children's relationship with Father was outweighed by the stability and permanence they would gain in an adoptive placement.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. CODRINGTON
J.