Opinion
E071230
12-04-2018
In re K.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. B.K., Defendant and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Prabhath Shettigar Deputy County Counsel for Plaintiff and Respondent. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1101176) OPINION APPEAL from the Superior Court of Riverside County. Walter H. Kubelun, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, Prabhath Shettigar Deputy County Counsel for Plaintiff and Respondent. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Defendant and appellant B.K. (Father) appeals after the termination of his parental rights to K.G. (Minor) and the selection of adoption as Minor's permanent plan at a Welfare and Institutions Code section 366.26 hearing. Father makes one claim on appeal that the juvenile court should have ordered a guardianship rather than terminate his parental rights by applying the beneficial parent-child bond exception of section 366.26, subdivision (c)(1)(B)(i), as it served the best interests of Minor.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
In August 2011 it was reported to the Riverside County Department of Public Social Services (Department) that C.H. (Mother) gave birth to Minor and that Minor tested positive for opiates. It was reported at that time that Father had been diagnosed with bipolar disorder. Father was granted reunification services. Minor was placed in Father's custody pursuant to a family maintenance plan. Father completed his case plan, which included counseling, parenting class, anger management, and substance abuse treatment. The case was closed on February 4, 2013.
Mother also had her parental rights to Minor terminated but is not a party to this appeal.
On March 16, 2017, the Department received a report that Father and Minor were missing. Paternal grandmother (PGM) had filed a missing person's report because Father had picked Minor up from school and they never returned home. Father was not returning phone calls. PGM was concerned because Father suffered from bipolar disorder and refused to take his medications.
The following day, Minor and Father were found in Stateline, Nevada. He told officers there that God had told him to go to Canada and that Minor would protect him. He said that people were chasing them and trying to kill them. They broke down several times and got rides from strangers. PGM and paternal aunt (Aunt) retrieved Minor and took her home with them.
On March 21, 2017, the Department received a further report that Father had stopped taking his bipolar medication. He showed up at Minor's school shirtless and smelling of alcohol and marijuana. On March 24, 2017, it was reported that Father was suffering from a psychotic breakdown. Father talked about the devil and that Minor was saving him. There was concern he may commit suicide. Father was not left alone with Minor.
Minor was interviewed at her school. Minor lived with PGM, Father and Aunt. Father had not been home since the incident in Nevada and she did not know where he was located. PGM and Aunt took her to school and picked her up. She appeared healthy and well groomed. She indicated that Father and Aunt oftentimes argued. She had seen Aunt grab Father by the throat. Minor was not afraid of anyone in her home. Minor confirmed she and Father drove to Nevada without telling anyone. They got a flat tire on the way but it was fixed. They slept in a hotel. Minor admitted that she was scared when they got a flat tire and that strangers helped them fix the tire. Father did mention that the red and white lights following them were the devil.
On March 31, 2017, PGM and Aunt contacted the Department reporting that Father had been arrested for threatening Aunt with a box cutter. Aunt had confronted Father about smoking marijuana in the garage at her home. He threatened to slit her throat with a box cutter and he was going to send her to hell. Minor was inside the home at the time. Aunt obtained a temporary restraining order against Father but he had not been served. Father was released from custody; Minor was with maternal grandparents (MGP) in San Diego for spring break. Aunt reported Father's bizarre behavior had begun two months prior when he stopped taking his medication. Aunt stated that Father had been hospitalized approximately 10 times due to his mental health. On April 7, 2017, Father arrived at Aunt's house to remove his belongings. Aunt and Father got into an argument and the police were called. Minor was detained in a foster home.
Father was interviewed by a social worker. He explained that on March 16, 2017, he picked up Minor from school and planned to drive to Chicago for one day. They got a flat tire in Nevada. Father denied he was taking any illegal substances but refused to take a drug test even at a 24-hour facility because he was headed to Los Angeles to get a sandwich; Father admitted he used methamphetamine and would test positive. Father denied threatening Aunt with a box cutter. Father insisted that Aunt was aggressive and had grabbed his throat in front of Minor. Father insisted he attended mental health treatment and took his medications. No known criminal history was found for Father other than his recent arrest.
The Department filed a first amended section 300 petition against Father and Mother. It was alleged under section 300, subdivision (b), against Father, that he suffered from mental health issues, including a diagnosis of bipolar disorder, and did not take his prescribed medications. Father had an extensive history of being placed on psychiatric holds. He showed erratic behaviors, driving recklessly with Minor in the car, and reported hearing voices. Father had an unresolved history of abusing controlled substances including marijuana and methamphetamine. There was a prior case history with the Department for Minor between 2011 and 2013 due to Minor being born positive for opiates; the drug abuse by both Father and Mother; and domestic violence. It was further alleged that Father engaged in domestic violence on March 29, 2017, in front of Minor.
The allegations in the first amended petition against Mother are not pertinent to the issues in this appeal. --------
A detention hearing was held on the amended petition on April 12, 2017. Father was named the presumed father. The juvenile court found a prima facie case and ordered that Minor be detained outside the home. Father was granted twice weekly supervised visits with Minor, and telephone calls. Father completed an ICWA-020 form stating that he believed his paternal grandfather had Cherokee Indian ancestry.
B. JURISDICTION
A jurisdiction/disposition report was filed on May 11, 2017. On May 8, Minor was placed back with PGM. It was recommended that the amended section 300 petition be found true. It also recommended that Father participate in two psychological evaluations but that he be denied reunification services.
Father reported that he had a normal childhood. Father had been admitted to college on a soccer scholarship but it became too stressful for him. When he was 17 years old, he was diagnosed with bipolar disorder. When he was 19 years old, he began smoking marijuana. When he was 30 years old, he was placed in a mental hospital, where he met Mother. Father started using methamphetamine.
Father denied that he was hearing voices or that he put Minor in danger when they drove to Nevada. Father claimed he was planning for them to vacation in Utah. Father had a medical marijuana card. Minor was never present when he used methamphetamine. He had been sober for one year prior to the recent relapse. Father acknowledged his bipolar disorder and the 10 previous hospitalizations. Father still had ongoing criminal proceedings for the incident involving Aunt; he was sentenced to probation for three years.
Minor was interviewed for a second time on May 8, 2017. Minor was happy to be placed back with PGM. Minor admitted she was scared when Father took her on the trip to Nevada. Minor denied being afraid of Father but acknowledged that he thought the devil was chasing them when they were driving to Nevada. Minor expressed she loved both Mother and Father. Minor had lots of friends at school and was doing well academically. Minor loved being with PGM.
Father was given supervised visits on Tuesdays and Fridays for two hours; during the reporting period he had not shown up to the visits or called for visitation.
On May 5, 2017, Father went to the home where Minor and PGM were staying and was aggressive with PGM's friend. Father was later found passed out at a nearby park. He was taken to the hospital and stated he had ingested "a lot" of his psychotic medications. He was still hospitalized and was being transferred to a mental health hospital for evaluation of his suicidal ideation. Father explained he took the medication because he felt hopeless and sad.
On May 15, 2017, PGM petitioned for de facto parent status. PGM reported that Minor had lived with her since Minor's birth in 2011 and she had taken care of Minor's daily needs. PGM expressed it was her belief that Father was not taking his medication and was not in a position to care for Minor. He was violent and aggressive when he did not take his medication. Father was suicidal. PGM and Minor had moved in with a friend in order to not have contact with Father. PGM wanted to move back in with Aunt with a restraining order against Father. PGM also encouraged the juvenile court to allow Minor unsupervised visits with MGP. Aunt filed a declaration in support of PGM being granted de facto parent status.
Father had a visit with Minor on May 18, 2017; the visit went well. The social worker reported, "There appears to be a positive bond between [Minor] and [Father]."
Mother reported to the Department that on May 17, 2017, she and Father had met and used marijuana and methamphetamine together. On May 18, Father participated in a drug test and tested negative for all substances. However, on May 30, Father was a no-show for his drug test.
In an addendum report filed on June 8, 2017, the Department reported that PGM was concerned about her long-term health due to her age; she felt it would be best if Aunt could adopt Minor. The person with whom PGM and Minor were staying contacted the Department and expressed concern about PGM. PGM was not feeling well and wanted to move back in with Aunt in order to have help with Minor. PGM expressed to the Department that she would need help from other family members if she was given custody of Minor. Further, she had failed to report to the Department she had stayed at Minor's uncle's home one night with Minor. Aunt had been denied approval for Minor's placement. MGP were being assessed for placement. MGP were willing to take Minor but lived in Santa Rosa and felt it was better for Minor to be cared for by PGM and Aunt.
The jurisdiction hearing was conducted on June 13, 2017; the disposition hearing was bifurcated. Father and Mother both waived their rights to a trial. A second amended petition was filed in which the allegations were stricken that Father displayed erratic and bizarre behaviors; that he failed to benefit from prior substance abuse treatment; and that he threatened to kill Aunt with a box cutter. The juvenile court found the section 300, subdivision (b) allegations true in the second amended petition. Father was ordered to submit to two psychological examinations.
C. DISPOSITION
On July 6, 2017, PGM moved out of her friend's home but Minor remained in the home. In order to complete the psychological examinations, Father had to be sober for 30 days. On July 6, 2017, it was determined that Father tested positive for marijuana. Father advised the Department he had a medical marijuana card and produced the card. On July 10, 2017, he was approved for evaluation. Father missed a drug test on June 30, 2017.
On May 26 and 31, 2017, both Father and PGM missed scheduled visits. On June 7, 2017, Father cancelled his visit stating he had to work. He did not show up for a visit with Minor on June 16, 2017. During the time that he did visit with Minor on June 26, 2017, he complained to her that the Department took her away from him for no reason. When redirected by the monitor of the visit, he yelled at the monitor telling her to try to end the visit and to call the police. He told Minor that the Department would not allow him to be her father. At a visit on July 10, 2017, he was very argumentative with the monitor. He told Minor she could not go camping with the friend of PGM with whom she was living and this upset Minor.
It was reported to the Department that Father had not attended counseling since May 23, 2017. On June 16, 2017, PGM had voluntarily committed herself to a behavioral health facility due to insomnia and depression. PGM's friends were willing to care for Minor temporarily. On July 14, 2017, Minor was placed with MGP in Santa Rosa.
Father finally completed a psychological examination with Dr. Edward Ryan on July 26, 2017. Father participated in a "guarded manner." He was oriented to time, place and manner. He had previously been hospitalized for his mental illness but not for approximately six years. Father reported a recent episode where he overdosed on pills. He admitted that when he was off his medication he could be aggressive.
Dr. Ryan opined that Father had the ability to learn from teaching and guidance if he opted to participate. However, Father tended to be egocentric and only "did the minimum to get by" in life. He had average intelligence. Father self-medicated with marijuana and methamphetamine. Dr. Ryan was unsure if Father believed he needed to learn better coping and parenting skills; Father was limited as to how much he could learn and whether he could turn that knowledge into something lasting and tangible. Dr. Ryan had significant reservations about whether Father would benefit from reunification services but did not foreclose the possibility. However, caution should be used for actual reunification.
Father was not participating in his services. He had been terminated from his counseling program. He was no show for two of his random drug tests.
The weekend of Minor's birthday in August 2017, Minor came to Riverside County with maternal grandmother. Minor and Father spent most of the weekend together. Minor was adjusting well to living with MGP. She was meeting all of her developmental milestones and was entering the first grade.
The Department remained concerned about Father's unresolved substance abuse. Further, his mental health impacted his ability to care for Minor. This was evidenced by his aggressive behavior during visitation. Father did not have stable housing and was not participating in services.
A further addendum report was submitted by the Department on October 6, 2017. Minor had been with MGP since July 14, 2017. Father was working. He was enrolled in a parenting program. He was receiving mental health services and was taking his medication. Minor had made friends at school and was doing well academically. Minor had video chat visits with Father and PGM. The conversations lasted approximately one hour.
The second psychological examination of father was completed by Dr. Robert Suiter and was submitted on November 14, 2017. Father was alert and cooperative during the examination. He denied ever suffering from delusions. He did not appear paranoid. He acknowledged recently overdosing on his medication. He used marijuana the day prior to the evaluation. Father had a low tolerance for stress and was prone to overreact in many situations. He had no signs of a thought disorder but was impulsive. He had a high probability of a substance abuse disorder. Father took medications for both his bipolar disorder and anxiety. Dr. Suiter was concerned that Father was not entirely truthful with him as Father failed to provide information about his drug use, going with Minor to Nevada, and his prior dependency case involving Minor.
Dr. Suiter concluded that Father took no responsibility for Minor being removed from his care. As such, there was no reasonable likelihood he would remediate his difficulties. Dr. Suiter did not recommend reunification services.
The Disposition hearing was conducted on November 16, 2017. The juvenile court found that ICWA did not apply. Reunification services were denied to both Mother and Father. As to Father, services were denied pursuant to section 361.5, subdivision (b)(2), due to his mental health. Father's visitation was reduced to once a month to be supplemented by telephone and written contact, and video chat. PGM's de facto parent request was withdrawn because Minor was with MGP.
D. SECTION 366.26 REPORT
The section 366.26 report was filed on March 6, 2018. The Department recommended a permanent plan of adoption. Minor was six years old and developing normally. She was in the first grade and was doing well in school and sports. Father missed his visits in December 2017 and January 2018 due to being sick. Father was reported to be appropriate when he did visit in November 2017; there were no behavioral issues reported after the visits. The home of MGP was being assessed for adoption. Father had not scheduled a February visit. Minor enjoyed visits with Father. Minor was bonding with MGP. The section 366.26 hearing was continued to allow completion of the adoption assessment of MGP.
An addendum report was filed on May 2, 2018. The Department recommended that parental rights be terminated and that the permanent plan be adoption. Minor had been in the prospective adoptive home since July 14, 2017. Minor was bonded to MGP and the majority of the family was in favor of the placement. MGP had been approved for adoption. Minor was a bright, observant and sweet child. She enjoyed school, playing soccer and making jewelry. She expressed that she wanted to remain with MGP and wanted them to adopt her. MGP were retired and would care for Minor full time. MGP were open to contact between Minor and Father if it was safe and appropriate. MGP had support from their adult daughter who lived nearby.
Father filed a section 388 petition. Father sought six months of reunification services. He also requested liberalized visitation with Minor. Father had participated in a drug treatment program, parenting class, counseling and attended Alcoholics Anonymous meetings on his own. Father also submitted to a third psychological examination.
Father provided documentation that he had fully participated in a substance abuse program. He had four negative drug tests. He attended numerous group sessions and individual sessions. He completed a positive parenting program. Father's counselor advised the Department that Father was taking his medication and participating in counseling. The counselor recommended that Father have custody of Minor.
Father was evaluated by psychologist Antonius D. Brandon. Dr. Brandon found that Father had no diagnosable problems. Father described himself as being opinionated and assertive, which may be viewed as his being self-centered and grandiose. He had no diagnosable cognitive, emotional or behavioral disfunctions.
The Department responded to the section 388 petition on June 7, 2018. Dr. Suiter, who had already examined Father for the case, reviewed the information from Dr. Brandon. Dr. Suiter criticized the report as only evaluating one test given to Father; it was not reliable. A diagnosis from the test administered to Father was not an appropriate tool to diagnosis Father's mental health problems.
The Department stated that despite Father's recent efforts to complete services, it did not mitigate his chronic and unresolved history of substance abuse or his mental health issues, which impacted his ability to parent Minor. It was not clear he was stable enough to take care of Minor. Minor deserved to be placed in a permanent, stable home with the adoptive parents. The negative drug tests had only been in the prior several months and not over the course of the proceedings.
Another addendum report was provided on July 13, 2018. Dr. Suiter provided a written report responding to Dr. Brandon's diagnosis of Father. Dr. Suiter stated that according to Dr. Brandon's report, Dr. Brandon did not meet with Father or perform an in-person evaluation. The results were based on one psychological instrument administered on Father and were not reliable.
E. SECTION 366.26 HEARING AND DENIAL OF SECTION 388 PETITION
Father testified at the combined section 366.26 and 388 hearing held on August 14, 2018. Father was renting a room in a house and was working on road construction. Since the disposition hearing, he had fully participated in a parenting class; he just completed a substance abuse program he had started in December 2017; he was involved in therapy once each week; and he was engaged in a 12-step program. Father had a visit the prior weekend with Minor; Minor had been excited to see him and hugged him. Father had phone contact or video chats with Minor approximately two times each week. Father believed they had a strong bond. Father stated, "I love that girl more than anything. She's my whole life." Prior to the recent weekend visit, Father had not seen Minor since May 2018.
Father's counsel requested that the juvenile court apply the beneficial parent-child bond exception. He argued that Father had maintained contact with Minor despite the distance between them. They were bonded and it would be detrimental to terminate parental rights. The Department's counsel argued the exception did not apply because Father had failed to show detriment if his parental rights were terminated. Minor was doing well with MGP and wanted to remain in their care. Minor's counsel agreed with the Department's recommendation.
The parental rights of Mother and Father were terminated. The juvenile court found that there was no showing of detriment to Minor if parental rights were terminated, and no exception under section 366.26, subdivision (c)(1) was met. The juvenile court also denied the section 388 petition. Minor was freed for adoption.
DISCUSSION
Father claims he had a significant bond with Minor and that the juvenile court erred by failing to apply the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i) and order guardianship instead of adoption.
After reunification services are denied or terminated, " 'the focus shifts to the needs of the child for permanency and stability.' " (In re Celine R. (2003) 31 Cal.4th 45, 52.) Adoption is preferred once reunification services have been terminated and, "adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) " 'Guardianship, while a more stable placement than foster care, is not irrevocable and thus falls short of the secure and permanent future the Legislature had in mind for the dependent child.' " (Celine R., at p. 53.)
Under section 366.26, subdivision (c)(1), the juvenile court must terminate parental rights if it finds "by clear and convincing evidence" it is likely the child will be adopted. There are several statutory exceptions. 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.)
The parent has the burden of proving the statutory exception applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) The parent must show both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
"[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.) " 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 937.)
"In reviewing challenges to a trial court's decision as to the applicability of these exceptions, we will employ the substantial evidence or abuse of discretion standards of review depending on the nature of the challenge." (In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) "The first determination—most commonly whether a beneficial parental or sibling relationship exists, although section 366.26 does contain other exceptions—is, because of its factual nature, properly reviewed for substantial evidence. [Citation.] The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes 'a compelling reason for determining that termination would be detrimental to the child.' " (In re K.P. (2012) 203 Cal.App.4th 614, 622.) Based on the foregoing, the issue of whether a beneficial relationship exists is reviewed for substantial evidence and the decision of whether that relationship constitutes a compelling reason for termination being detrimental is reviewed for an abuse of discretion. (Ibid.)
A. VISITATION AND BENEFICIAL RELATIONSHIP
Father's visitation throughout the dependency proceedings was inconsistent. During the period between Minor's detention and the jurisdiction hearing, Father was given supervised visits twice each week but had failed to show up or call. While awaiting the jurisdiction/disposition hearing, Father missed several visits with Minor either failing to call or because he was sick or had to work.
Father did have a positive visit in August 2017 facilitated by MGP; Father and Minor consistently engaged in telephone calls and video chat conversations. After the disposition hearing, while awaiting the section 366.26 hearing, Father was sporadic in his face-to-face visits. He missed several visits due to illness. He had no visits in November and December 2017, and no visits between May 2018 and August 2018. Father testified that Minor hugged him at the most recent visit but did not explicate how he cared for Minor. Father's sporadic visits did not warrant applying the beneficial parent-child exception.
Moreover, it was clear that Father and Minor loved each other and had a "positive bond." However, the evidence did not establish that this was a parental-child bond. PGM moved for de facto parent status in May 2017. In her petition, she insisted that she handled the daily care of Minor since she was born. She and Aunt took her to school and activities. It was not clear that Father had ever provided the primary care of Minor on a consistent basis.
B. DETRIMENT TO MINOR IF PARENTAL RIGHTS TERMINATED
Father insisted he was capable of taking care of Minor but it was only for the few months prior to the section 366.26 hearing that Father showed any progress in maintaining his sobriety and addressing his mental health issues.
Father had ongoing mental health issues. He had been hospitalized approximately 10 times for his issues. When Minor was removed from Father's custody in March 2017, Father was acting erratically and left with Minor without informing anyone else in the family he was leaving. At the end of March 2017, Father had been arrested for threatening Aunt. Father admitted to methamphetamine use and refused to take drug tests. He admitted he used marijuana regularly. In May 2017, Father was reported to have used methamphetamine and refused drug tests.
While awaiting the jurisdiction hearing, while Father was unstable, Minor first was placed in foster care. Minor had to be moved out of Aunt's home with PGM to a friend's home in order to avoid contact with Father. PGM then got sick and Minor was left in the care of PGM's friends. During this time Father violated his restraining order and was placed on probation for the incident with Aunt. In May 2017, he showed up at the home where Minor was staying and was aggressive with PGM's friend. He left and went to a nearby park where he overdosed on his medications. He also continued to use marijuana so that the psychological examinations had to be delayed. Minor was moved to Santa Rosa in July 2017 to live with MGP. While Father continued to use methamphetamine and overdosed on his medications, Minor had to be uprooted from her home with PGM, whom she loved, in order to provide her with stability.
Minor thereafter established a significant bond with MGP. She wanted MGP to adopt her. Throughout the dependency proceedings, Father made very little progress in setting up a stable environment where he could take care of Minor. While Father continued to use drugs and not address his mental health issues, Minor was moved to the home of MGP; she bonded with them and became settled in her school. Minor was finally able to have the stability and permanency she needed. MGP would continue to facilitate contact between Father and Minor. Minor was stable in her new home and terminating Father's parental rights was not detrimental to her best interests.
This case does not present the extraordinary circumstances that require the application of the beneficial parent-child exception of section 366.26, subdivision (c)(1)(B)(i).
DISPOSITION
The juvenile court's order terminating Father's parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. SLOUGH
J.