Opinion
D072063
09-21-2017
In re ARIANNA P. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. VIVIAN B. et al., Defendants and Appellants.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Devonte P. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Vivian B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CJ1215A-B) APPEALS from findings and orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant Devonte P. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant Vivian B. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.
Vivian B. and Devonte P. appeal orders terminating parental rights to their children, Arianna P. and A.P. (Welf. & Inst. Code, § 366.26.) They argue the juvenile court erred when it determined the beneficial parent-child relationship did not apply. Devonte contends reversal of the orders terminating parental rights is required because the Agency did not correctly inform the children's caregiver about the legal rights and responsibilities of guardianship. Vivian joins with this argument. We affirm the findings and orders.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Vivian and Devonte are the parents of three-year-old Arianna and two-year-old A.P. (together, children). Vivian and Devonte have a history of physical altercations against each other and others. As a child, Vivian was a dependent of the juvenile court because of her parents' extensive history of domestic violence. Devonte was physically abused by his stepfather. Devonte 's grandmother (Grandmother) became his legal guardian.
Vivian, Devonte, and Arianna lived with Grandmother in 2014. In May 2014, Devonte was arrested after he placed Vivian, who was pregnant with A.P., in a chokehold. In July, Grandmother asked the parents to move out of her home because they were in constant conflict with each other. Vivian lost her temper and put Grandmother in a chokehold. In February 2015, Devonte was arrested and charged with domestic violence after he hit Vivian in the neck and face, and tried to strangle her. He broke down the door to the bedroom where she and the children were sheltered. Six days later, Vivian was arrested when she was involved in a physical altercation with a neighbor over a parking spot.
The San Diego County Health and Human Services Agency (Agency) tried to work with Vivian to protect the children, but she refused to press charges against Devonte. A court issued a Criminal Protective Order prohibiting Devonte from having any contact with Vivian for three years. Vivian asked Grandmother to tell Devonte, who was in jail, she wanted to be back with him as soon as possible. Devonte wrote to Grandmother and asked her to tell Vivian that he loved and missed her. Grandmother refused to relay the messages.
On March 5, 2015, the Agency filed petitions alleging the children were at substantial risk of suffering serious physical harm because of their parents' violent altercations. Vivian did not appear at the detention hearing with the children. The juvenile court issued a pick up and detain order for the children. The Agency was unable to locate them until late July 2015. The parents initially lied but eventually acknowledged they had been living together with the children in Colorado. Vivian said Devonte had a bad temper and would "snap." Devonte told the social worker, "sometimes I get mad out of nowhere."
The Agency detained the children with Grandmother. The juvenile court sustained the dependency petitions, removed the children from the custody of their parents, and ordered a plan of family reunification services. The court ordered separate, weekly two-hour visits for each parent, supervised by Grandmother. Grandmother said "if it gets to the point where the parents don't get these girls back, I would do guardianship."
Grandmother is the children's great-grandmother. In this opinion, for simplicity, we continue to refer to her as Grandmother.
During the first review period, Vivian and Devonte participated in case plan services and visited the children consistently. They enjoyed spending time with their children and visits went well. The only negative incident occurred in November 2015 when Grandmother was 20 minutes late to a visit and Vivian became verbally abusive. Grandmother refused to supervise the children's visitation with Vivian. The social worker referred Vivian to a family visitation center.
The parents consistently denied having any contact with each other. The social worker later learned Vivian and Devonte were communicating through false Facebook names. Vivian denied having contact with Devonte and said someone else must have been using her account. In December, the parents had a confrontation. The next day, Devonte slashed the tires on Vivian's car.
Devonte denied having any contact with Vivian. After the social worker showed him copies of his and Vivian's e-mails, Devonte said he e-mailed Vivian after she blocked him on Facebook, Snapchat, and her telephone. Devonte underwent a psychological evaluation and was diagnosed with intermittent explosive disorder.
In April 2016, Vivian telephoned the social worker, crying, and said Devonte threatened to have people fight her if she refused to see him. He telephoned her 24 times that day. On a previous day, he telephoned her 60 times. Vivian filed a police report. She acknowledged she and Devonte had continued their relationship since she obtained a restraining order against him in September 2015. Earlier in the year, Devonte choked her and prevented her from seeing a doctor. Vivian was trying to end their relationship. Devonte came to her work place and followed her when she tried to hide from him. Devonte discovered that Vivian had a new boyfriend. She was afraid Devonte was going to hurt her.
In May 2016, Vivian was arrested after she brandished a knife at her new boyfriend and punched him in the back of his head when he was trying to leave. Vivian said she was doing well in her domestic violence program and would complete the program in three weeks.
The children's court-appointed special advocate (CASA) reported that Arianna was an adorable, bright, and loving child. Arianna often talked about Grandmother when she was with the CASA. If Arianna was upset, she would ask for Grandmother and look to her for comfort. A.P. was an affectionate toddler who interacted well with her sister and adults. The children were thriving in Grandmother's care. Grandmother was patient and loving with the children but firm. Grandmother was willing to adopt the children if they were not reunited with their parents.
In its report to the court, the Agency acknowledged the parents had made some progress with their case plans. However, due to their continued violence and restraining order violations, the social worker recommended that the court terminate reunification services and set a section 366.26 hearing. Grandmother filed a caregiver information form in which she said she was disappointed by Vivian's and Devonte's failure to take their parental responsibilities seriously. She asked for permanent custody of the children. At the review hearing in July 2016, the juvenile court terminated reunification services and set a section 366.26 hearing.
On August 3, Devonte was arrested for violating the restraining order protecting Vivian. He was jailed for 16 days. He did not attend scheduled visitation with the children until September 16.
The section 366.26 hearing was held over five days in February and March 2017. The social worker observed weekly visitation between the children and each parent for more than four months. The children were happy to see their father. Arianna would shout, "Daddy," as she ran towards him. He gave each child his individual attention and met their needs. On one occasion, Devonte telephoned to say he had been delayed at work and would arrive late to the visit. While the children were waiting for him, Arianna said "I am going to see my daddy today" to the people in the hallway. She asked for her father three times. Devonte brought snacks and dolls for the children. The children obeyed him. At a visit in December, Arianna refused to put on her coat. When she did not follow her father's instructions, he picked her up and put her coat on her.
A hearing on Vivian's petition to return the children to her care was held with the section 366.26 hearing. For brevity, we summarize only the evidence that is relevant to the issues raised on appeal.
During visits with Vivian, the children would scream and smile as they ran to her. Vivian often was on her cell phone during visits. The children did not listen to her. At another visit, Arianna was eager to hold Vivian's hand. Arianna said "I love you" to her. Vivian struggled to watch both children at the same time when they were engaged in different activities. When the children did not listen to her, Vivian would put them in a time-out. On several occasions, Arianna told Vivian, "I missed you."
When visits ended, the children ran to Grandmother. They were excited to see her. At the end of one visit with Vivian, Arianna cried until she saw Grandmother and ran to her. At the end of another visit, she told Grandmother, "I've missed you." During a December visit, Arianna told the social worker, "I've missed you, Miss Trisha."
The social worker stated the children did not establish a significant parent-child relationship with either parent because they were removed from their parents' care at a very young age. Although the children referred to Vivian as "mommy," they viewed her as a playmate. They also viewed Devonte as a playmate. The children were very affectionate by nature, and were excited to see the social worker and CASA.
The CASA reported that the children appeared to have a genuine affection for Vivian and looked to her for comfort when needed. Devonte was very patient with the children. They were excited to see him and vied for his attention. The children were thriving with Grandmother, and they were genuinely affectionate with her. The children often talked about Grandmother during visits with their mother and father. The CASA believed it was in the children's best interests to be adopted by Grandmother.
At the hearing, Grandmother testified she wanted to adopt the children. Her goal was to maintain the children's contact with as much of their family as possible. Grandmother said she tried to keep the parents in the children's lives. They did not ask for their parents in between visits. Grandmother would tell the children "today is mommy's day" or "today is daddy's day." Grandmother acknowledged that at one time, she had preferred guardianship over adoption. She changed her mind in August 2016. The parents had had more than enough time to get themselves together. Grandmother's main priority was caring for the children. The parents' main priority was partying without any responsibilities. Grandmother said she would care for the children "until God calls me home."
The juvenile court found that the children were cheerful and loving with their parents. They had an enormously strong bond and attachment with Grandmother. Their visits with their father were playful, positive, and cheerful. Their mother was a significant person in their lives. However, the children would gain extraordinary benefits from adoption by Grandmother. In weighing the many benefits of adoption against the positive aspects of the children's visits with their parents, the court determined the children would not be greatly harmed by termination of parental rights. The court terminated parental rights and designated Grandmother as the prospective adoptive parent.
DISCUSSION
A
THE BENEFICIAL RELATIONSHIP EXCEPTION
1. Appellants' Arguments
Devonte argues he maintained a significant, positive emotional attachment with his children, despite his difficult personal history. The children were loving and affectionate with him throughout the case. The CASA recommended increased visitation. The social worker reported that Devonte demonstrated knowledge of his children's development, appropriately responded to their verbal and nonverbal signals, put their needs ahead of his own needs, showed empathy towards the children and consistently acted in a parental role with them. Devonte contends this evidence shows that his influence on the children is likely to be instrumental in their emotional development and well-being, and therefore the court erred when determining the children would gain more benefit from adoption by Grandmother than from continuing their relationships with him.
Vivian argues the children's security and sense of belonging would not suffer under a plan of guardianship with Grandmother; therefore, any benefit to the children from adoption would be miniscule. Citing positive reports about her visits with the children, Vivian contends the record shows that the children's relationships with her were beneficial to them, and adoption would not resolve the children's long-term emotional needs for her. Vivian asserts she demonstrated her commitment to the children by complying with every aspect of her case plan and continuing with therapy after the court terminated her reunification services.
2. Relevant Legal Principles and Standard of Review
At a permanency planning hearing, the court may order one of three alternatives—adoption, guardianship, or long-term foster care. (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) If a child is adoptable, there is a strong preference for adoption over other permanency plans. (Ibid.; San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.) If the court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
In the case of an Indian child, the court may also order the plan of tribal customary adoption. (§ 366.26, subd. (b)(2).) This permanency plan does not apply here.
An exception to termination of parental rights applies where the parent has "maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (beneficial relationship exception). (§ 366.26, subd. (c)(1)(B)(i).) " '[B]enefit from continuing the . . . relationship' " means the parent-child relationship "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 Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
The beneficial relationship exception is examined on a case-by-case basis. Many variables may affect the bond between parent and child, including "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." (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) "Evidence of 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) A section 366.26 hearing occurs only after the court has repeatedly found that the parent is unable to meet the child's needs. Thus, "it 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 K.P. (2012) 203 Cal.App.4th 614, 621.)
We determine whether there is substantial evidence to support the court's ruling terminating parental rights by reviewing the evidence most favorably to the prevailing party, and indulging in all legitimate and reasonable inferences to uphold the court's ruling. We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (Autumn H., supra, 27 Cal.App.4th at p. 576.)
The Agency urges this court to discard this long-established standard of review for termination of parental rights and instead adopt a hybrid standard of review. We need not address this issue because the record supports the juvenile court's findings and orders under either standard.
3. The Juvenile Court Did Not Err When It Determined the Beneficial Relationship Exception to Termination of Parental Rights Did Not Apply
The parents do not meet their burden on appeal to show the juvenile court erred when it concluded that severing the parent-child relationship would not deprive Arianna or A.P. "a substantial, positive emotional attachment such that the child would be greatly harmed." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although the record shows that the effect of interaction between the parents and the children during visitation was positive, that is not the only variable the court considers in determining the strength and quality of the parent-child relationship. The children were in the parents' custody for a relatively short time. Arianna was 20 months old when she was placed in Grandmother's care. A.P. was eight months old. By the time of the conclusion of the section 366.26 hearing, the children had been in Grandmother's care for more than 19 months. The record shows that the children were strongly bonded with Grandmother, and she met all their physical and emotional needs.
The record shows that the parents did not dedicate themselves to their children prior to the section 366.26 hearing. While Grandmother assumed responsibility for the children's care and well-being, Vivian and Devonte continued their volatile relationship and lied about it to the social worker. Thus, they did not put their children's needs for a safe and secure environment ahead of their own needs, and their focus was not on parenting their children. The social worker could not advance their visitation with the children because of their continued volatile and surreptitious actions. While Vivian's and Devonte's interactions with the children during supervised visitations were loving and affectionate, they do not meet their burden on appeal to show that the juvenile court erred when it determined that the parent-child relationships did not promote the well-being of the children to such a degree as to outweigh the well-being they would gain by the permanency and stability of adoption. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
B
REQUIREMENTS TO ASSESS THE PERMANENCY PLAN OPTIONS OF
GUARDIANSHIP AND ADOPTION
1. The Parties' Arguments
The parents contend the assessment report did not meet the requirements set forth in section 366.21, subdivision (i)(1)(D); therefore, there was not substantial evidence to support the court's finding that adoption was the children's permanency plan. The parents argue the record shows that Grandmother did not have an accurate understanding of the differences between adoption and guardianship, and she preferred guardianship until she was given incorrect information, or misconstrued the information, about the legal rights and responsibilities of adoption and guardianship. Had Grandmother preferred guardianship, an exception to termination of parental rights would have applied and the juvenile court would not have terminated their parental rights to the children.
An exception to termination of parental rights exists where "the child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(A).) --------
The Agency argues the assessment report was not deficient. It reflected the social workers' numerous conversations with Grandmother throughout the proceedings about adoption and guardianship. In addition, Grandmother had been Devonte's legal guardian and had direct experience with the legal rights and responsibilities of guardianship.
2. Applicable Legal Principles
Whenever the juvenile court sets a section 366.26 hearing, it is required to direct the Agency to prepare an assessment report. (§ 366.21, subd. (i).) "The assessment report is 'a cornerstone of the evidentiary structure' upon which the court, the parents and the child are entitled to rely." (In re Valerie W. (2008) 162 Cal.App.4th 1, 11 (Valerie W.).) "Deficiencies in an assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court's decision to terminate parental rights." (In re Crystal J. (1993) 12 Cal.App.4th 407, 413 (Crystal J.).) The reviewing court gives the court's findings underlying the termination of parental rights the benefit of every reasonable inference, and resolves any evidentiary conflicts in favor of the judgment. (Valerie W., at p. 13.)
As relevant here, the assessment report must include information about the child's relationship to any identified prospective adoptive parent or guardian, and his or her understanding of the legal and financial rights and responsibilities of adoption and guardianship. (§ 366.21, subd. (i)(1)(D).) The report shall include the identified prospective adoptive parent or guardian's motivation for seeking adoption or guardianship. (§ 366.21, subd. (i)(1)(E).) The Legislature requires that "a relative caregiver shall be given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption." (§ 366.21, subd. (i)(2)(B).)
3. Additional Factual Background
In her assessment report, the social worker stated she explained the options of guardianship and adoption to Grandmother on September 2, 2016. Grandmother said she preferred to adopt the children. In October, the social worker confirmed that Grandmother understood the responsibilities of adoption and wanted to provide a permanent home to the children. Grandmother wanted to adopt the children to provide a safe, permanent home for them without interference from the parents.
At the section 366.26 hearing, Grandmother testified she wanted to adopt the children because she did not want them to go into foster care. She preferred adoption over guardianship because "what has been explained to me, if it's guardianship, the parents dictate their education, the various activities I put them in." Grandmother said, "I don't have time for that." Her understanding about guardianship was based on a booklet she received from the Agency. Grandmother did not believe the parents had acted responsibly toward the children. She preferred adoption because it was permanent and she could make decisions about the children without the parents' involvement.
4. Grandmother Was Given Information About the Alternative Permanency Plan Options of Guardianship and Adoption
The parents argue Grandmother's understanding about guardianship was incorrect because parental rights are suspended for the duration of the guardianship, except the court has discretion to grant visitation. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1127 [during guardianship, a parent's rights to the companionship, care, custody, or management of his or her child are suspended].) They contend the implementation of a guardianship is not a prelude to future litigation to return the children to their custody, but rather the continuation of the children's essential, loving, and comforting family connections.
The parents do not meet their burden on appeal to show that the assessment report was deficient. The record shows that Grandmother was "given information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption." (§ 366.21, subd. (i)(2)(B).) The assessment report included Grandmother's motivation for seeking adoption. (§ 366.21, subd. (i)(1)(E).) On appeal the parents argue the social worker's report concerning her discussions about the legal and financial rights and responsibilities of adoption and guardianship was cursory. (§ 366.21, subd. (i)(1)(D).) If they believed Grandmother was not correctly informed about the differences between adoption and guardianship, the parents had the opportunity to cross-examine the social worker about her discussions with Grandmother or introduce in evidence the booklet she had received describing adoption and guardianship. The record does not show the social worker was remiss in preparing the assessment report. (§ 366.21, subd. (i).)
In addition, assuming without deciding the social worker should have provided more detail about her conversations with Grandmother about permanency planning in the assessment report, the parents do not show that any deficiency in the assessment report was sufficiently egregious to impair the basis of the court's decision to terminate parental rights. (Crystal J., supra, 12 Cal.App.4th at p. 413.) Grandmother preferred adoption because it was more permanent than guardianship. This is a correct understanding of the law. Grandmother clearly explained she had been willing to assume guardianship of the children until she realized Vivian and Devonte were not acting responsibly as parents. Her decision to adopt was a reasonable response to her observations of the parents' behaviors and her assessment of the children's needs. The record also shows Grandmother preferred adoption because she believed it would be less time-consuming than guardianship, and would allow her to focus her time and energy on the children's education and activities. Even if she did not have a full grasp of the legal implications of guardianship, Grandmother's preference for adoption was reasonably based on her practical assessment of the circumstances, including her desire to keep the children connected to their biological family within the boundaries she deemed were in the children's best interests. The record shows the children were thriving in Grandmother's loving, but firm, care. Thus, there is ample evidence to support the juvenile court's findings that adoption was in the children's best interests and there were no exceptions to termination of parental rights.
DISPOSITION
The findings and orders are affirmed.
HUFFMAN, Acting P. J. WE CONCUR: NARES, J. IRION, J.