Opinion
E076493
09-28-2021
In re K.R., a Person Coming Under the Juvenile Court Law. v. C.R. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant, C.R. Law Office of Zulu Ali & Associates and Donovan Fleming, for Defendant and Appellant, J.S. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, No. J276522 Erin K. Alexander, Judge. Affirmed.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and Appellant, C.R.
Law Office of Zulu Ali & Associates and Donovan Fleming, for Defendant and Appellant, J.S.
Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
Defendants and appellants, J.S. (Mother) and C.R. (Father) appeal the juvenile court's order terminating their parental rights to their minor child, K.R., and freeing him for adoption. We find no error and therefore affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2018, plaintiff and respondent, the San Bernardino Department of Child and Family Services (the Department) received a referral that Mother was arrested for driving under the influence while her minor children, K.R. (born in 2012) and J.R. (born in 2007), were improperly buckled in the car. A social worker spoke with Mother a couple weeks later and asked her to drug test. Mother missed her first drug test a few days later but tested positive for cocaine on April 17, 2018. Mother told the social worker that her cocaine use was a one-time occurrence.
Only K.R. is the subject of this appeal.
The social worker spoke with J.R., who reported that Mother and her boyfriend, T.J., had engaged in domestic violence. J.R. said she was scared when T.J. was in the home. Mother told the social worker that T.J. would no longer come to the home. J.R. also explained that she was scared when she was in the car when Mother drove under the influence because she was swerving. J.R. claimed she missed school or was tardy because Mother frequently slept in.
About two months later, Mother tested positive for opiates. She claimed she had taken Tylenol with codeine, but she did not have a prescription for it. She also acknowledged that T.J. had been in the home to retrieve clothes.
On June 12, 2018, the Department filed a petition on K.R.'s behalf under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) based on Mother's substance abuse, her arrest for driving under the influence, her mental health, and her domestic violence issues. The following day, the juvenile court ordered K.R. detained. K.R. was placed with his maternal grandfather (MGF).
All further statutory references are to the Welfare and Institutions Code.
In its July 2018 jurisdiction/disposition report, the Department recommended that services be provided for Mother but not Father. The Department reported that Father lived in Georgia, had not seen K.R. since 2014, and was not involved in K.R.'s life. Later, however, the Department agreed that Father should receive services.
The juvenile court held a jurisdiction/disposition hearing in August 2018. At the Department's suggestion, the juvenile court dismissed the mental health allegation in K.R.'s section 300 petition, sustained the remaining allegations, and ordered reunification services for Mother and Father.
In February 2019, however, the Department recommended terminating reunification services for Father while continuing them for Mother. The Department reported that although Mother consistently visited K.R. and had completed some of her services, including a substance abuse treatment program, she failed to drug test on four occasions yet tested negative on others. Father, on the other hand, had not completed any services and had not spoken with or visited K.R. The juvenile court ordered continued reunification services for Mother and Father and authorized Mother to have unsupervised visits with K.R. if she did not miss a drug test and tested negative three times in a row.
In August 2019, the Department recommended that K.R. be returned to Mother's care and services for Father be terminated. The Department reported that Mother had completed most of her case plan and had consistently tested negative for drugs. Father, however, completed only a small portion of his case plan and had not consistently visited K.R. On August 9, 2019, the juvenile court ordered K.R. returned to Mother's care conditioned on her continuing certain services and terminated Father's reunification services.
In early February 2020, the juvenile court held a review hearing. By that time, the children had been returned to Mother's care. In its report for the hearing, the Department recommended a continued family maintenance plan and that K.R.'s dependency case be continued. The Department reported that although Mother had tested negative for drugs several times between July 2019 and January 2020, she tested positive for cocaine on January 16, 2020, which Mother attributed to taking Percocet without a prescription for stomach pain. The Department was in the process of referring Mother to a substance abuse counselor.
At the hearing, the juvenile court observed that the Department obtained a warrant to detain the children and intended to do so after the hearing, but Mother left with them. The juvenile court ordered Mother to cooperate with the Department and continued the matter.
Two days later, the Department filed a supplemental petition under section 387 because Mother failed to comply with her case plan. In particular, Mother stopped attending substance abuse meetings. Because the Department had concerns about Mother's continued drug use, the Department recommended that K.R. be returned to MGF's care. On June 10, 2020, the juvenile court ordered K.R. detained in MGF's care and set a contested jurisdiction/disposition hearing at Mother's request.
About two weeks later, the Department reported that Mother missed several drug tests in February and March 2020 and tested positive for opiates in May 2020. Although Mother's visits with K.R. had gone well, he needed “a lot of redirecting.”
At the June 22, 2020 hearing on the section 387 petition, the juvenile court sustained the petition, declined to order further reunification services for Mother, and set a section 366.26 hearing.
In its October 2020 section 366.26 report, the Department reported that Father had not maintained regular or consistent visits with K.R. K.R.'s MGF told the social worker that Father had not called K.R. for months. Mother's visits with K.R., although consistent, had not gone well. Mother gave K.R. minimal attention while focusing on J.R. and did not exhibit affection, empathy, or appropriate parenting skills toward K.R. One visit was cut short because of Mother's erratic behavior, including pacing back and forth while yelling that the Department is “corrupt.”
At the Department's request, the juvenile court continued the section 366.26 hearing to February 1, 2021. In an addendum to its section 366.26 report, the Department recommended that the juvenile court terminate Mother and Father's parental rights to K.R. The Department explained that K.R. and MGF had lived together for over a year, they were mutually bonded to each other, and they “do everything together.” MGF is “dedicated to [K.R.] and committed to raising him to adulthood.” MGF considers K.R. to be “like [his] kid.” When the social worker asked K.R. if he wanted MGF to adopt him, K.R “shook his head in excitement and stated, ‘yes.'”
At the section 366.26 hearing on February 1, 2021, Mother and Father argued the beneficial parental relationship exception applied. The juvenile court disagreed, terminated Mother and Father's parental rights to K.R., and freed him for adoption by MGF. Mother and Father timely appealed.
III.
DISCUSSION
Mother argues (1) the juvenile court's jurisdictional findings are unsupported; (2) the juvenile court's reunification plan was insufficient because the ordered reunification services did not address her mental health issues; (3) the juvenile court erred in finding the beneficial parental relationship exception did not apply; and (4) we should conduct an independent review of the record to determine whether the juvenile court erred under Anders v. California (1967) 386 U.S. 738and People v. Wende (1979) 25 Cal.3d 436. Father joins Mother's argument and raises no other issues on appeal beyond arguing that if the order terminating Mother's parental rights is reversed, then the order terminating his parental rights must also be reversed. We find no error.
1. Jurisdictional Findings
Mother and Father assert the juvenile court lacked jurisdiction because there was insufficient evidence to sustain the section 300, subdivision (b) jurisdictional findings. Mother and Father forfeited this argument, but it also fails on the merits.
“The first appealable order in a dependency case is the dispositional order.” (In re T.W. (2011) 197 Cal.App.4th 723, 729.) A parent must raise any challenge to the jurisdictional findings in an appeal from the dispositional order. (Ibid.) “‘Failure to appeal from an appealable dispositional order waives any substantive challenge to the jurisdictional findings.' [Citation.]” (Ibid.) Because Mother and Father did not appeal from the several dispositional orders, they waived any challenge to the juvenile court's jurisdictional findings. (Ibid.; accord, In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149-1151.)
2. Reunification Services
Mother argues the juvenile court's reunification plan was insufficient because the reunification services did not address her mental health issues. Mother forfeited the argument by agreeing to the reunification plan without objection during K.R.'s years-long dependency proceedings. (See In re T.W., supra, 197 Cal.App.4th at p. 729.) Further, the juvenile court dismissed the petition's mental health allegation, and Mother provides no argument as to why the juvenile court should have ordered services on a dismissed allegation.
3. Beneficial Parental Relationship Exception
Mother and Father contend the juvenile court erroneously found that the beneficial parental relationship exception did not apply. We find no error.
The beneficial parental relationship exception applies when “[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)). “This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Anthony B. (2015) 239 Cal.App.4th 389, 395 (Anthony B.).) These are the first two prongs of the exception's test. But even if a parent proves the existence of a beneficial parental relationship, the juvenile court must also find that such relationship constitutes “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) This is the third prong of the test.
The parent has the burden of proving his or her relationship with the child would outweigh the well-being gained in a permanent home with an adoptive parent. (In re Anthony B., supra, 239 Cal.App.4th at pp. 396-397.) In determining the applicability of the beneficial parental relationship exception, the court considers “‘“[t]he 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.”'” (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) “A showing the child derives some benefit from the relationship is not sufficient ground to depart from the statutory preference for adoption.” (In re Breanna S. (2017) 8 Cal.App.5th 636, 646 disapproved of on other grounds by In re Caden C. (2021) 11 Cal.5th 614, 637, fn. 6.) Furthermore, evidence of frequent and loving contact is not enough to establish a beneficial parental relationship. (In re Breanna S., supra, at p. 646.) The parent must also show he or she occupies a parental role in the child's life. (Ibid.) “The relationship that gives rise to this exception to the statutory preference for adoption ‘characteristically aris[es] from day-to-day interaction, companionship and shared experiences. Day-to-day contact is not necessarily required, although it is typical in a parental relationship.'” (In re K.P. (2012) 203 Cal.App.4th 614, 621.)
Our review of the juvenile court's finding that the beneficial parental relationship exception did not apply incorporates both the substantial evidence and abuse of discretion standards of review. (In re Caden C., supra, 11 Cal.5th at p. 640.) We apply the substantial evidence standard of review to the first two prongs of the exception. (Ibid.) The third prong, “the ultimate decision-whether termination of parental rights would be detrimental to the child due to the child's relationship with his parent-is discretionary and properly reviewed for abuse of discretion.” (Ibid.)
The first prong of beneficial parental relationship exception analysis “is quantitative and relatively straightforward, asking whether visitation occurred regularly and often.” (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) The juvenile court found that Mother maintained regular visitation and contact with K.R., but Father had not. Substantial evidence supports these findings. Father lived outside of California and only visited K.R. about 10 times during the lengthy dependency proceedings, and conceded that he had not consistently spoken with K.R. Mother, however, consistently visited with K.R. throughout the entire proceedings. The juvenile court thus properly found that Mother thus satisfied the first prong of the beneficial parental relationship exception while Father did not. We therefore conclude the trial court did not err in finding the exception did not apply to Father and turn to the remaining prongs of the exception as to Mother.
Even if Father had satisfied the first prong, he did not satisfy the third prong for the same reasons that Mother did not. Like Mother, Father has not shown that terminating parental rights to K.R. would be so detrimental to K.R. that doing so outweighs the benefits of adoption.
Mother argues that she occupied a parental role in K.R.'s life that would continue to benefit him if maintained, thus satisfying the second prong of the beneficial parental relationship exception. But even if she did, the juvenile court reasonably found that Mother did not satisfy the third prong of the exception because her relationship with K.R. is not “so significant and compelling... that the benefit of preserving it outweigh[s] the stability and benefits of adoption.” (Anthony B., supra, 239 Cal.App.4th at p. 396.)
By the time of the section 366.26 hearing, Mother had not had any unsupervised visits with K.R. in over a year and had not provided for his daily needs. By contrast, K.R. had lived with MGF for extended periods of time, including for a year before the section 366.26 hearing. K.R. and MGF are attached to one another and “do everything together.” MGF considers him to be his son, has provided for all of his needs, and wants to adopt him and raise him into adulthood. K.R. excitedly told the social worker that he wants to be adopted by MGF.
The juvenile court thus reasonably found that the benefit the children would derive from a parental relationship with Mother does not “outweigh the well-being [they] would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Mother failed to show anything more than that she had frequent contact with K.R. But a loving and friendly relationship is “‘not enough to outweigh the sense of security and belonging an adoptive home would provide.'” (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The juvenile court thus did not abuse its discretion in finding that there was no “compelling reason for finding that termination [of parental rights] would be detrimental to the child[ren]. [Citations.]” (Anthony B., supra, 239 Cal.App.4th at p. 395.) We therefore conclude the juvenile court did not err in terminating Mother and Father's parental rights to K.R. and freeing him for adoption.
4. Independent Review
Mother and Father ask us to exercise our discretion and “review the entire record on appeal for arguable issues of error” under Anders v. California, supra, 386 U.S. 738and People v. Wende, supra, 5 Cal.3d 436. We decline to do so. (See In re Sade C. (1996) 13 Cal.4th 952, 993-994; In re Phoenix H. (2009) 47 Cal.4th 835, 842-843 [independent Anders/Wende review not required in dependency proceedings].)
IV.
DISPOSITION
The order terminating Mother and Father's parental rights to K.R. is affirmed.
We concur: MILLER Acting P. J., MENETREZ J.