Opinion
E073736
03-10-2020
In re S.P. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.P. et al., Defendants and Appellants.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant J.P. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant M.J. Michelle D. Blakemore, County Counsel, Mitchell L. Norton, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J267336 & J267337 & J276780) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Marisa L.D. Conroy, under appointment by the Court of Appeal, for Defendant and Appellant J.P. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant M.J. Michelle D. Blakemore, County Counsel, Mitchell L. Norton, Deputy County Counsel for Plaintiff and Respondent.
Defendants and appellants J.P. (Father) and M.J. (Mother; collectively, parents) challenge the termination of their parental rights by the juvenile court at a Welfare and Institutions Code section 366.26 hearing. For the reasons set forth post, we shall affirm the judgment.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. PETITION AND DETENTION
On September 15, 2016, San Bernardino County Children and Family Services (CFS) filed a section 300 petition. At the time of the petition, Mother had five children: A.S. (girl—born February 2007); I.S. (boy—born March 2008); E.R. (girl—born July 2013); J.P. (boy—November 2014); and S.P. (girl—born March 2016). Father was the father of J.P. and S.P. The petition alleged that parents engaged in domestic violence and abused substances, which placed the children at risk of harm or injury.
The three older children A.S., I.S., and E.R. are not parties to this appeal, nor are their alleged fathers. --------
Parents began their relationship in November of 2013. Although Mother used marijuana since the age of 18, after their relationship began, Mother increased her use of marijuana. She "reported she and [Father] would switch off when using the Marijuana and one would take care of the children while the other used." Mother also stated that "Marijuana was the only thing that kept [parents] together because without it they did not get along." She said that marijuana gave her "patience" and made it "easier."
Moreover, Father physically abused Mother. Father kicked Mother, slapped her, pushed her against walls, pinned her down so she could not move or breathe, and gave her black eyes. Father also threatened to kill Mother if she tried to take S.P. and J.P. away from him. When Father abused Mother, he would also yell at the children when they tried to intervene. Sometimes, Father threw the children to the ground. Moreover, Father allegedly hit the paternal grandparents, who resided with parents, when the grandparents attempted to intervene. Furthermore, Father disciplined the children in a physically abusive manner, especially his stepchildren A.S. and I.S.
In addition to the abuse by Father, both Mother and Father abused the children. I.S. reported that Father abused him by pushing him against a wall and choking him with two hands which resulted in visible bruising. He also stated that Father struck him and A.S. with objects hard enough to leave marks or bruises. I.S. further stated that Mother hit him with a belt; I.S. showed the social worker the injuries he received from the metal buckle. A.S. reported that Father hit her and I.S. with a belt, a metal hanger and his hand. She stated, " 'Me and my brother [I.S.] get hit a lot by [Father].' "
Furthermore, parents smoked marijuana in front of the children and left drugs and drug paraphernalia around the house. I.S. stated that when parents used marijuana, he actually felt "anxious and dizzy" from the smoke."
Mother was arrested for child endangerment. Father was arrested for "causing serious bodily injury to the child [I.S.]."
At the detention hearing on September 16, 2016, the court ordered J.P. and S.P. detained from parents under section 300, subdivisions (b), (g), and (j).
B. JURISDICTION AND DISPOSITION
In the jurisdiction/disposition report filed on October 12, 2016, CFS detailed the domestic violence between parents and the physical abuse to the children. The report alleged that Mother struck I.S. with a belt; it caused marks and bruises to I.S.'s shoulder. I.S. reported that Mother hit him in this manner "frequently." The report also alleged that Father suffers substance abuse, has a criminal history, and initiated domestic violence in the presence of the children, which placed them at risk of harm or injury. In an additional information document, CFS reported that both A.S. and I.S. disclosed Father's physical abuse and domestic violence in the home. A Children's Assessment Center evidentiary interview report detailed the two older children's accounts of Father's physical abuse toward Mother and the children.
On January 3, 2017, at the contested jurisdiction hearing, the juvenile court found the petition true under subdivisions (b) and (j) as to S.P., J.P., and E.R, and subdivisions (a), (b) and (g) as to I.S. and A.S. The court found Father to be the presumed father of S.P. and J.P. The court also found S.S. to be the presumed father of A.S. and I.S., and D.R. to be the presumed father of E.R. The court ordered E.R. removed from Mother's care and placed with D.R.; the court dismissed the petition as to E.R. The court ordered reunification services for Mother, Father and S.S.
Parents' case plans included general counseling, anger management, domestic violence courses, parenting classes, and participation in an outpatient drug-treatment program and drug testing.
C. SIX MONTH REVIEW AND MISCELLANEOUS HEARINGS
On July 3, 2017, prior to the six-month hearing, the juvenile court authorized a 29-day extended visit for S.P. and J.P. with parents because of the progress parents made with their case plans.
At the six-month hearing on August 2, 2017, the juvenile court returned S.P. and J.P. to parents under a family maintenance plan. The court, however, retained dependency jurisdiction with CFS supervision. Parents' third child, Jo.P. (a boy), was born one month later. He remained with parents.
On October 30, 2017, at a 12-month review hearing, the juvenile court placed A.S. and I.S. with mother, continued the dependency status, and approved the family maintenance plan. At this time, the children, except for E.R., were in the home with parents.
On November 28, 2017, the social worker received a call from Father. He informed the social worker that Mother "was arrested for not attending her required child abuse classes," which was a required condition of her probation. Father stated that "he took a leave from his full time employment to stay home with the children." Mother was incarcerated until December 22, 2017.
In a status review report filed on April 19, 2018, the social worker reported that I.S. alleged that he was abused by Father's father. "Based on the investigation, sexual abuse allegations were substantiated." Parents showed "the ability and willingness to address the concerns related to the child's sexual abuse allegation and are actively participating in the child's Wraparound program."
On April 30, 2018, at the initial review hearing, CFS recommended dismissing the petitions based on parents' progress with their maintenance plans. Minors' counsel, however, objected to the dismissal. Thereafter, mother missed two random drug tests. CFS, therefore, changed its recommendation of dismissal to continued family maintenance.
At a further review hearing on May 24, 2018, the juvenile court adopted the revised findings and orders, and continued the dependency for all children except Jo.P., who was not a dependent of the court.
D. SECTION 387 AND 300 PETITIONS
On June 29, 2018, CFS received a new referral after a domestic violence incident between Father and Mother. During this incident, Father struck A.S. in the eye with his elbow and Mother struck Father multiple times with her fist. Mother was arrested as a result of Father's visible injuries. The report by CFS stated that "there is no way to ensure the safety of the children short of removal from the parents' home." On, June 30, 2018, the children were detained again.
On July 3, 2018, CFS filed section 387 petitions as to J.P. and S.P. alleging that prior dispositions had failed, as parents failed to benefit from their case plans as demonstrated by their continued domestic violence. On the same day, CFS also filed a section 300 petition as to Jo.P. under subdivisions (b) and (j). The juvenile court found Father to be Jo.P.'s presumed father and the allegations in the section 300 petition to be true.
On July 5, 2018, the juvenile court ordered J.P., S.P, and Jo.P. (collectively, the three children) detained from parents in light of the allegations set forth under section 300, subdivisions (b), (g), and (j). The court found that continuing the three children in the parental home would be "contrary to [the] welfare of minors . . . [¶] . . . [¶] and there is substantial danger to the physical health of the child(ren) or the child(ren) are suffering severe emotional damage and there are no reasonable means to protect the child(ren)'s physical or emotional health without removing the child(ren) from parents . . . physical custody." (All caps. omitted.)
In the July 26, 2018 jurisdiction/disposition report, CFS detailed parents' "history of placing the children at risk of harm by engaging in domestic violence while the children are present." The social worker expressed "concern that the parents have not benefitted from services from their continued involvement of domestic violence in front of the children." The social worker concluded that "it would be detrimental to place the children with the parents, and it is necessary to remove physical custody of the children from the parents pursuant to [section] 361 [and] a .26 hearing recommending Adoption, Guardianship, and/or PPLA be set."
At the hearing on July 26, 2018, the juvenile court found the allegations as to Jo.P. to be true. The court found that "continuance in the home of the parent(s) would be contrary to the child[rens'] welfare. Clear and convincing evidence shows that the child[ren] should be removed from the physical custody of the parents in that: There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child[ren] or would be if the child[ren] were returned home, and there are no reasonable means by which the child[rens'] physical health can be protected without removing the child[ren] from the parent[s'] physical custody. (All caps. omitted.) The juvenile court ordered reunification services to parents and set a six-month review hearing. The court ordered parents to participate in a substance abuse outpatient program after parents repeatedly missed drug tests.
Six weeks after the hearing, on August 3, 2018, Father was arrested and incarcerated for being a felon on prison grounds. On August 6, 2018, Mother was released from incarceration following her domestic violence incident, and Father was released on September 18, 2018.
On September 28, 2018, at a pretrial settlement conference hearing, the juvenile court found the allegations in the section 387 petition true, terminated all services to parents, and set a section 366.26 hearing for January 25, 2019. The court found "by clear and convincing evidence that parents []have failed to participate regularly and make substantive progress in the court ordered treatment plan" (all caps. omitted) and that "continuance in the home of the parent(s) would be contrary to the chill[rens'] welfare. Clear and convincing evidence shows that the child[ren] should be removed from the physical custody of the parents in that: There is a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child[ren] or would be if the child[ren] were returned home, and there are no reasonable means by which the child[rens'] physical health can be protected without removing the child[ren] from the parent[s'] physical custody. (All caps. omitted.)
On November 14, 2018, CFS filed a supplemental 387 petition alleging that the children's placement with Mother's uncle was endangering their safety after discovering that the children were physically abused and neglected. S.P. suffered two fractured legs, a fractured wrist, bruising, and cuts; her injuries required hospitalization. Moreover, S.P. was kept in locked isolation away from the other children. J.P. had been kept in a closet. Furthermore, all the children were forbidden to play with toys or hug each other.
The children were detained again. A.S. and I.S. were placed together, and the three children were placed together. At the jurisdiction/disposition hearing on December 13, 2018, the juvenile court found the allegations true, confirmed that the children would be removed from the relatives' home, and set the section 366.26 hearing for S.P., J.P., A.S and I.S. The court continued family reunification services as to Jo.P., and set a review hearing.
The juvenile court ordered parents to have supervised visits twice a month for two hours with the children. CFS reported that visits were sporadic and inconsistent, and that Mother did not visit the children regularly after she was released from incarceration. Father admitted that "prior to the review hearing, [parents'] visits were sporadic and inconsistent due to incarcerations, cancelled visits, or transportation issues." Moreover, father failed to enroll in any services for his case plan as of October 2018. Mother also admitted that parents "struggled with some visitation due to incarceration and transportation issues."
At the six-month review hearing for Jo.P. on January 25, 2019, the juvenile court discussed adoption as the permanent plan for J.P. and S.P., and planned permanent living arrangement for A.S. and I.S. The recommendation was to terminate parents' reunification services and set the matter for a section 366.26 hearing. The matter was set contested. At the contested review hearing on February 14, 2019, the juvenile court terminated services regarding Jo.P. and set a section 366.26 hearing. The court found "by clear and convincing evidence that the parents failed to participate regularly and make substantive progress in the court-ordered case plan." (All caps. omitted.) The court also found by a "preponderance of the evidence that custody by the parents continues to be detrimental to the child[ren] and the child[rens'] welfare and best interests require that custody continues to be taken from parent(s) . . . and that return of the child to parent(s) . . . at this time would create substantial risk of detriment to the safety, protection or physical/emotional well-being of the child." (All caps. omitted.) The court further found that parents' "extent of progress which had been made toward alleviating or mitigating the causes necessitating placement has been minimal."
E. SECTION 366.26 HEARING
In the section 366.26 report filed on January 22, 2019, the social worker reported that J.P. and S.P. were doing well in the home of their prospective adoptive parents. S.P. was learning to walk again after her leg casts were removed. The social worker reported that J.P. was bonding with the prospective adoptive mother and was calling her "mommy." S.P. also called the prospective adoptive parents mommy and daddy. The children were not only affectionate with their caregivers but also looked to them for the children's needs. The children were assigned a clinician to begin weekly in-home therapy. They were well-mannered and eating and sleeping well. The prospective adoptive parents were committed to adopting both children.
In the interim, parents were struggling with visiting the children because of incarcerations and transportation issues.
In an additional information report filed on May 15, 2019, the social worker reported that S.P. and J.P. were thriving in the home of the prospective adoptive parents, along with Jo.P. The three children were reported to have been strengthening their bond and attachment with the prospective adoptive parents. They looked to the caregivers to meet their needs and referred to them as "mom" and "dad."
In a report filed on May 25, 2019, the social worker reported that the prospective adoptive parents were committed to adopting the three children. They were also open to continuing sibling visits with A.S. and I.S. after adoption. The social worker further reported that parents were visiting Jo.P. weekly.
Another additional information report was filed on July 31, 2019. The social worker noted that, although parents continued with weekly visits, the three children's bond and attachment to their prospective adoptive parents were becoming stronger. The three children continued to call them "mom" and "dad."
In the final report dated August 7, 2019, the social worker reported that the prospective adoptive parents remained willing and able to adopt the three children, and that they would be able to provide permanency for them.
On September 19, 2019, a contested section 366.26 hearing was held. Father testified that he visited the three children once or twice a week. The three children called him "daddy." The three children told Father that they wanted to go home with Father at the end of visits. Mother testified that she had cared for the three children prior to their removal. She cared for J.P. for two years and S.P. for six months. She also cared for them an additional nine months when they were returned to Mother's care under a family maintenance plan. Mother stated that she shared a special bond with the three children. She visited weekly until CFS reduced her visits to every other week. Mother also testified that the three children ran to her and gave her hugs at the beginning of visits. They also called her "mom." Furthermore, none of the three children wanted to say goodbye when the visits ended.
After hearing parents' testimony and argument from counsel, the juvenile court found the three children adoptable by "clear and convincing" evidence. The court found that none of the exceptions to adoption applied. Thereafter, the court terminated the parental rights of both Mother and Father and found that adoption was the permanent plan for the three children. The court found that parents had failed to meet their burden of proving that the parent-child bond exception applied because they could not demonstrate a parental role in the lives of the three children. The court noted that parents' time with the three children "is not something that rises to the level of being able to assert the existence of the beneficial relationship" necessary to establish the exception. The court stated that it did "not have evidence that moving towards the idea of permanence and stability with the current prospective adoptive parents would deprive the children of a substantial and positive emotional attachment or that there is even harm, much less great harm."
Mother and Father filed their notices of appeal.
DISCUSSION
Parents contend that the court incorrectly found that the parental benefit exception to adoption did not apply.
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 (S.B.)), this is not such a case.
In general, at a section 366.26 hearing, if the juvenile court finds that a 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" 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), boldface & italics added.)
"The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship." (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) This court must affirm a juvenile court's rejection of these exceptions if the ruling is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We review "the evidence most favorabl[e] to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling." (S.B., supra, 164 Cal.App.4th at p. 297.) Because parents had the burden of proof, we must affirm unless there was "indisputable evidence [in their favor, which] no reasonable trier of fact could have rejected." (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
In this case, the juvenile court heard both parents testify and considered the evidence presented by both parents. The court, however found that the parental benefit exception did not apply. Substantial evidence supports the juvenile court's finding that the parental exception did not apply.
We need not consider whether parents visited regularly with the three children because parents failed to meet the second prong of the parental benefit exception—that the three children would benefit from a continued relationship with parents. "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.' " (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
" '[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.' " (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) The parent must show more than frequent and loving contact or pleasant visits. (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) " '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.' " (Jason J., at p. 937.)
According to Beatrice M., the exception applies when the child benefits from a continuing parental relationship. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) Parents' relationship with the three children was not a parental relationship. Instead, it was that of a friendly visitor, which is insufficient for the exception to apply. "To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits—the parent must show that he or she occupies a parental role in the life of the child." (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.)
In this case, after hearing the testimony of both parents and arguments of counsel, the juvenile court stated:
"The Court has read and considered the reports that were received this morning for evidence. And the Court has listened carefully to the testimony of the parents and evaluated their credibility.
"The Court is in agreement with the recommendation to terminate parental rights.
"The Court notes that it is undisputed that the children are adoptable. The Court is not aware of any legal impediment. They are both generally and specifically adoptable.
"[¶] . . . [¶]
"The Court will find that by clear and convincing evidence.
"The Court, also, notes that where the parents are coming from today is to assert the beneficial parental relationship. And the Court finds that the parents have not met their burden to demonstrate that, that the Court notes that there is, first, a legislative preference for adoption. And the reason for that is the permanence and stability that can be provided to the children.
"And as has been outlined, there have been a number of placements with the parents, back with the parents, with relative and, now, with foster care, that have not provided for the stability and the permanence for these children.
"While there have been periods of time that the parents spent with the children, that is not something that rises to the level of being able to assert the existence of the beneficial relationship."
The court then went on to note that the court did not "have evidence that moving towards the idea of permanence and stability with the current prospective adoptive parents would deprive the children of a substantial and positive emotional attachment or that there is even harm, much less great harm."
The court also stated that parents had the burden to demonstrate "that they occupy a parental role with their children." The court concluded that parents in this case failed to meet their burden. The court stated that although it had no "doubt that the parents love their children, but that is not sufficient with respect to providing permanence and stability for these children."
Under the substantial evidence standard of review, we find that the evidence presented at the hearing and submitted prior to the hearing support the court's findings.
In her opening brief, Mother contends that the instant case is similar to S.B., supra, 164 Cal.App.4th 289. In S.B., the father appealed an order terminating his parental rights to his daughter. He contended that the court erred when it failed to apply the parental benefit exception. (Id. at p. 289.) The father, however, was unable to care for the child full time due to his health problems. He visited the child three days a week, and the child became upset when visits ended, and wanted to leave with the father. (Id. at pp. 293-294.) The father also demonstrated empathy and the ability to put himself in the child's place and recognized her needs. (Id. at p. 294.)
The appellate court concluded that the father had a continuing beneficial relationship with his daughter within the meaning of the statutory exception to the termination of parental rights. (S.B., supra, 164 Cal.App.4th at p. 293.) The parties all agreed that the father maintained "regular, consistent and appropriate visits" with the child. (Id. at p. 298.) The appellate court found that there was no evidence to support the trial court's finding that the father did not have some type of parental relationship with the child. (Ibid.) The court did not believe that it was reasonable to require a parent to prove the child had a primary attachment to the parent, or to show that the parent and child had maintained day-to-day contact. (Id. at p. 299.) The appellate court concluded that, based on the record, the only reasonable inference was that the child would be greatly harmed by the loss of her "significant, positive relationship" with the father. (Id. at p. 301.)
In a later case, the same court that decided S.B. stated that S.B. was confined to its "extraordinary facts." (In re C.F. (2011) 193 Cal.App.4th 549, 558 (C.F.).) In C.F., the court stated that S.B. "does not support the proposition a parent may establish the parent-child beneficial relationship exception by merely showing the child derives some measure of benefit from maintaining parental contact. As Autumn H. points out, contact between parent and child will always 'confer some incidental benefit to the child,' but that is insufficient to meet the standard." (C.F., at pp. 558-559.)
Contrary to Mother's claims, S.B., supra, does not support her position. As noted above, it is insufficient to show that the exception applies by merely showing that the three children can derive some benefit from maintaining contact with her. Here, there was insufficient evidence in the record to show that Mother occupied a parental role in the lives of the three children. (See In re C.F., supra, 193 Cal.App.4th at p. 557.) The three children in this case did not spend much of their lives in Mother's care. There was insufficient evidence to show that the three children would suffer any detriment upon the termination of parental rights. In fact, the evidence showed that the three children were thriving in their placement and were bonded to their caregivers. As recognized by the court in C.F., "[t]he children are entitled to stability and permanence through adoption. 'Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.' " (Id.)
In sum, while there is some evidence supporting a finding of a positive relationship between parents and the three children, there is also evidence supporting a reasonable conclusion that the three children would gain a greater benefit from being placed in a permanent adoptive home with their current caregivers. Parents did not meet their burden to show that the bond between parents and the three children was so strong and beneficial to the three children that it outweighed the benefit the three children would receive from having a stable, adoptive home. As the record clearly shows, the three children were bonded to their prospective adoptive parents and interacted with them as their parental figures. The three children were doing very well in their prospective adoptive home and they were emotionally stable there. The three children were attached to the prospective adoptive parents and looked to them for comfort, love, and safety, and the caregivers were committed to providing a permanent, stable, loving home for the three children. In sum, parents have the burden to establish the applicability of the beneficial parental relationship exception in the lower court; on appeal, they have the burden of showing that the juvenile court's ruling was an abuse of discretion. We conclude that parents have failed to meet this burden.
DISPOSITION
The juvenile court's findings and orders are affirmed on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.