Opinion
E066377
02-16-2017
In re R.V., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. N.R. et al., Defendants and Appellants.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant N.R. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant R.S.-V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1400887) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant N.R. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant R.S.-V. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
Defendants and appellants N.R. (Mother) and R.S.-V. (Father) appeal from the juvenile court's order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26 as to their five-year-old daughter R.V. (the child). On appeal, both parents argue the juvenile court erred in failing to apply the parental beneficial relationship exception to termination of parental rights as set forth in section 366.26, subdivision (c)(1)(B)(i). We find no error and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the Riverside County Department of Public Social Services (DPSS) on August 18, 2014, after a referral was received concerning allegations of physical abuse to the child. It was alleged that Father was physically abusive towards Mother and slapped the child. The child was two years old at the time. Both parents were deaf and communicated in American Sign Language (ASL).
Mother reported that Father used methamphetamine and that he "gets 'extremely upset' " and " 'loses' control when he is angry with her." Mother acknowledged there was ongoing domestic violence between her and Father, and that she, along with Father, struggled to manage their emotions. DPSS had received a prior referral due to the parents' ongoing domestic abuse, and Mother had left Father but returned within weeks of closing the prior referral. Mother alleged that Father had threatened to kill her and the child if she left the relationship, and once, after a serious domestic altercation, threatened to set the child on fire and then scratched the child and burned her with a cigarette. Mother stated that Father was diagnosed with bipolar and that he did not take his prescribed medication. Mother did not know how to keep the child safe, and was instructed to obtain a restraining order. Mother nevertheless left the child with Father and went to the police station.
Father denied harming the child, but acknowledged he had a history of domestic violence with Mother. Father admitted to recent methamphetamine and alcohol use. He also denied that he ever thought about harming the child. Father admitted that he was informally diagnosed with bipolar and that he was not taking the prescribed medication. Father was arrested for domestic violence and harassment.
The child was taken into protective custody. She had limited verbal skills, but appeared happy and playful. She spoke English and Spanish and could interpret some sign language. The paternal and maternal grandmothers reported that the parents had a history of fighting and that Mother would leave Father only to return to him when she was no longer angry. Both grandmothers wanted to be considered for placement of the child.
On August 20, 2014, a petition was filed on behalf of the child pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The following day, the child was formally detained and a temporary restraining order was issued. The parents were provided separate visits twice per week.
The jurisdictional/dispositional hearing was held on September 22, 2014. At that time, the juvenile court found the allegations in the petition true and declared the child a dependent of the court. The parents were provided with reunification services and ordered to participate. A permanent restraining order was issued, and the child was eventually placed with the paternal grandmother on December 23, 2014.
By the time of the six-month review hearing, Mother was living in a one-bedroom apartment and working. She had not enrolled in a domestic violence program, but was attending weekly therapy and making progress. She stated that she was single, but she wanted to be in a relationship with Father if he " 'changed and learned from his issues.' " Mother had weekly supervised visits with the child and the visits went well. DPSS planned to begin unsupervised visits for Mother. Both Mother and the child were excited to see each other at visits and Mother brought gifts for the child to each visit. Mother played with the child at visits, although there appeared to be a language barrier. Father entered an inpatient substance abuse program on December 19, 2014, and participated in the programs offered at the facility. Father had three in-person visits and weekly video contact due to the rules at the facility where he resided.
At the March 23, 2015 six-month review hearing, the juvenile court ordered an additional six months of services to the parents and set a 12-month review hearing. The juvenile court ordered unsupervised visits for Mother and denied Father's request to modify the restraining order.
By the time of the 12-month review hearing, Mother continued to live in a one-bedroom apartment, but struggled financially. Father resided with family members after checking himself out of his residential substance abuse program prior to completing the program. Mother had unsupervised visits with the child that gradually increased from one overnight visit to several overnight visits. The child appeared to adore Mother. Mother had a surprise birthday party for the child at her apartment complex and approximately 150 people attended the party. The visits reportedly went well, but there were some issues with structure and nutrition as it related to the child. Mother completed counseling after four months but it was reported that she made limited progress. It was recommended that she continue participating in counseling with a therapist who utilized sign language. Mother was unable to enroll in or complete a domestic violence program due to her work schedule.
Father struggled with his behavior while in his inpatient substance abuse program and was caught shoplifting a watch from a nearby store. As a result, the program suspended Father's visits from March 11, 2015 to April 11, 2015. In addition, while in the program, he asked another resident to buy drugs for him and, in June 2015, he had an improper sexual relationship with a female resident. He also did not report other residents' abuse of the facility's rules when he knew the abuse occurred. After the suspension of visitation, he resumed weekly visits with the child. Father checked himself out of the inpatient program prior to completing it in August 2015, and was eventually discharged from the program.
On September 1, 2015, the paternal grandmother reported that she had recently seen the parents together with the child. The paternal grandmother observed the parents in a car together when they brought the child back to her placement. The social worker expressed concern due to the restraining order. The parents were not to have any interaction and "definitely not be present together with" the child.
At the October 6, 2015 12-month review hearing, the juvenile court ordered an additional six months of services for the parents and set an 18-month review hearing. The juvenile court ordered the restraining order remain in full force and effect.
In October 2015, Mother was caught with Father in her car and Father was subsequently arrested. Father was arrested and incarcerated for grand theft, resisting arrest, violation of a court order, and violation of probation with a release date of February 5, 2016. Mother gave several different stories as to why she was around Father, but it appeared Mother had the child in her care when she picked up Father. She continued to report that the child missed Father. It appeared that Mother desired her family to reunify together.
Since October 2015, the child spent the night with Mother and stayed with her from Wednesday to Monday. After several day and overnight visits with Mother, the child began to have a lot of tantrums and became aggressive. During one incident, Mother was unable to control the child's kicking and screaming and called the relative caretaker. When the caretaker tried to assist Mother, Mother became defensive and staff noted Mother's inability to calm the child down. DPSS was about to place the child in Mother's care at the end of October 2015; however, Mother was unable to obtain placement of the child due to violating the restraining order when Mother took the child to visit Father. Mother thereafter had supervised visits. Mother visited every Saturday, and the child appeared happy and content. In addition, the child was not acting out as much on visits with Mother. The visits between Mother and the child included going to the movies, park, out for pizza, and the family home.
Mother worked on domestic violence issues in therapy but her work schedule prohibited her from participating in a domestic violence program. Mother was referred to another therapist who reported Mother minimized the child's behaviors. Mother was discharged from her program after Mother failed to demonstrate an ability or willingness to read the homework or practice skills necessary to affect behavioral change in her child.
Father had not visited the child since October 2015 when he became incarcerated. Prior to that, Father visited on a supervised basis. The child was often excited and happy to see Father during visits. Father's supervised visits resumed when he was released from jail, and he had a visit on February 13, 2016. The child appeared happy and content at visits.
At the March 8, 2016 18-month review hearing, the juvenile court terminated reunification services and set a section 366.26 hearing. Visitation was reduced to twice per month.
The child continued to reside with the paternal grandmother and was developing well. She was very attached to her paternal grandmother who used ASL and English to communicate with the child. The paternal grandmother had been very instrumental in ensuring the child's mental health was stable, and had provided a safe, loving and structured home. The child was described as being talkative, adventurous, happy, playful, curious, joyful, and independent. She appeared content with the paternal grandmother, but also liked visiting with her parents and signing with them over the telephone. After services were terminated, the parents visited separately twice a month on a supervised basis. Both parents usually took the child to the park or mall and out to eat, and they both bought things for her and played with her. The child enjoyed spending time with both of her parents. The child continued to have contact with her paternal and maternal family and cousins. The social worker reported that the child was "attached to all of the individuals that have been important to her in her life." The social worker stated that the child was in "great hands with her paternal grandmother."
On July 5, 2016, Father filed a section 388 petition with supporting documents, requesting the court vacate the section 366.26 hearing and return the child to his care under a family maintenance plan, or, in the alternative, family reunification services.
On July 6, 2016, the juvenile court held a combined section 388 and 366.26 hearing. Father's counsel presented stipulated testimony that Father had completed a 21-session intensive outpatient substance abuse program on April 21, 2016; that Father had attended substance abuse meetings, was maintaining sobriety, and had voluntarily participated in individual therapy and parenting classes; that Father had completed 19 of 52 anger management classes; and that Father had regularly visited the child and shared a significant bond with her. The juvenile court denied Father's section 388 petition and proceeded to the section 366.26 hearing. Following argument, the juvenile court found that no exception to the termination of parental rights applied, found the child adoptable, and terminated parental rights.
Both parents filed timely notices of appeal.
II
DISCUSSION
Both parents contend the juvenile court erred in finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A), did not apply to preclude the termination of parental rights. We disagree.
This "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds.(c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "termination would be detrimental to the child" (§ 366.26, subd. (c)(1)(B)) because "[t]he 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).)
"When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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 B.D. (2008) 159 Cal.App.4th 1218, 1234-1235, italics added.)
" '[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' [Citation.]" (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) " '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.' [Citation.]" (Id. at p. 937.) Even a "loving and happy relationship" with a parent does not necessarily establish the statutory exception. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) "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. (1994) 27 Cal.App.4th 567, 576.)
The parent contesting the termination of parental rights bears the burden of showing both that a beneficial parental relationship exists and that severing that relationship would result in great harm to the child. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.) A juvenile court's finding that the beneficial parental relationship exception does not apply is reviewed in part under the substantial evidence standard and in part for abuse of discretion. The factual finding, i.e., whether a beneficial parental relationship exists, is reviewed for substantial evidence, while the court's determination that the relationship does or does not constitute a "compelling reason" (In re Celine R. (2003) 31 Cal.4th 45, 53) for finding that termination of parental rights would be detrimental is reviewed for abuse of discretion. (In re Bailey J., supra, at pp. 1314-1315; accord, In re K.P. (2012) 203 Cal.App.4th 614, 621-622.) A juvenile court's ruling on whether there is a " 'compelling reason' " is reviewed for abuse of discretion because the court must "determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and . . . weigh that against the benefit to the child of adoption." (In re Bailey J., supra, at p. 1315, italics omitted.)
Here, there is no dispute that Mother had maintained regular contact and visitation with the child. In addition, even if we assume Father had maintained regular visits with the child, the evidence fails to show the parents' relationship with the child promoted the child's well-being to such a degree as to outweigh the well-being she would gain in a permanent home with a new, adoptive parent. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534.) While there was evidence of some bonding between the child and the parents, it was insufficient to outweigh the benefits of finally providing the child with permanency and stability. Furthermore, although the child enjoyed her visits with the parents, there was no evidence that the child would be harmed, much less "greatly harmed," by termination of parental rights. (In re B.D., supra, 159 Cal.App.4th at pp. 1234-1235.)
County counsel asserts that while Mother maintained regular visits with the child, Father did not. --------
Moreover, while there is some evidence supporting a finding of a positive relationship between the parents and the child, there is also evidence supporting a reasonable conclusion that the child would gain a greater benefit from being placed in a permanent adoptive home. The parents simply did not meet their burden to show that the bond between them and the child was so strong and beneficial to the child that it outweighed the benefit the child would receive from having a stable, permanent adoptive home. The child was two years old when this case commenced and almost five years old at the time of the section 366.26 hearing. During that time, the child had been out of parental custody for over two years and had been placed with her paternal grandmother in December 2014. The child had known her paternal grandmother since birth and her paternal grandmother desired to adopt the child and provide her with the stability and security the child required. In addition, the child and her paternal grandmother had a strong, mutual, loving bond, and the paternal grandmother ensured the child had a safe, nurturing home. The child was doing very well in her paternal grandmother's home and was thriving. The child was happy and content with her paternal grandmother, and urgently required permanence and stability. On the other hand, the parents had not demonstrated an ability to provide the child, over the long term, with a stable, safe, and loving home environment.
In conclusion, at most, all the parents can demonstrate is "frequent and loving contact or pleasant visits," which has repeatedly been found insufficient to support application of the exception. (In re C.F. (2011) 193 Cal.App.4th 549, 555.) We conclude that the juvenile court did not err in finding that Mother and Father failed to meet their burden of showing the parental beneficial relationship exception applied.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: HOLLENHORST
J. McKINSTER
J.