Opinion
E076143
04-27-2021
In re L.R., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Glenn C. Moret, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J274944) OPINION APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Glenn C. Moret, Deputy County Counsel, for Plaintiff and Respondent.
Joseph R. (father) appeals from the termination of his parental rights to his minor son, L.R., arguing that the juvenile court erred by failing to apply the parental bond exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) (unlabeled statutory references are to this code). We conclude that the juvenile court's findings were supported by substantial evidence and that the court did not abuse its discretion by declining to apply the exception. We therefore affirm.
BACKGROUND
In February 2018, when L.R. was almost two years old, he was taken into protective custody by San Bernardino County Children and Family Services (CFS). L.R. had been living with his mother, Linda G. (mother), and older half-sister. Mother reported that she and father were not in a relationship and that father sometimes visited L.R. at mother's house. When L.R. was taken into custody, father was present at mother's home.
CFS filed a dependency petition under section 300, alleging that L.R. was at substantial risk of serious physical harm as a result of substance abuse by both mother and father (collectively, parents), living in a hazardous environment with mother, and father's failure to protect L.R. from mother. (§ 300, subd. (b)(1).) In February 2018, the juvenile court detained L.R. and ordered a minimum of once weekly, two-hour supervised visits with parents. CFS was given discretion to liberalize visits to unsupervised and also to increase their frequency and duration.
At a contested jurisdiction and disposition hearing held in April 2018, the juvenile court sustained the allegations in the petition and ordered reunification services for both parents. The court found father to be L.R.'s presumed father. The visitation order remained unchanged as to frequency and duration, and CFS continued to have discretion to increase both.
Father did not attend the six-month status review hearing in October 2018. Parents had been evicted from their apartment at some point after the previous hearing, and father's whereabouts were unknown. Father had last visited L.R. in June 2018. The court terminated services for parents and scheduled a hearing to select and implement a permanent plan. The order for once weekly, two-hour supervised visits with parents remained.
A couple of months after that hearing, L.R. was removed from his placement with his relative caregiver, who was no longer willing or able to provide care for him. At the selection and implementation hearing held in February 2019, the court found that adoption was not an appropriate permanent plan at that time because of the recent change of placement. Father had not visited L.R. since June 2018. The court ordered a permanent plan of placement in foster care with a goal of placement with a fit and willing relative. Parents continued to be allowed once weekly, two-hour supervised visits with L.R.
At a permanency planning review hearing held in August 2019, the court ordered a permanent plan of placement in foster care with a goal of adoption. CFS reported that parents had been "relatively consistent" in visiting L.R., L.R. responded well to the visits, and L.R. did not exhibit any signs of distress during the visits. Father reported that he noticed unexplained bruises and scratches on L.R., which the court asked CFS to investigate, and the court admonished father to report such concerns to "the hotline" in the future rather than waiting until a hearing. Parents continued to be allowed once weekly, two-hour supervised visits with L.R.
One month after the review hearing, in September 2019, L.R. was placed with Ms. W., his fifth caregiver since removal. For the next permanency planning review hearing in February 2020, CFS reported that Ms. W. acted lovingly and with patience toward L.R. and provided L.R. with the stability he needed to feel safe and secure. L.R. acted "very clingy" with Ms. W. and was "receiving individual counseling to address abandonment issues and process his fear of being moved from current placement." L.R. had adjusted to the placement "extremely well," was "flourishing," and had "developed a secure attachment" with Ms. W. Ms. W. was interested in adopting L.R. The court scheduled a hearing to select and implement a permanent plan under section 366.26. Parents continued to be allowed once weekly, two-hour supervised visits with L.R.
In the six months before the February 2020 review hearing, parents had attended weekly supervised visits with L.R. Parents were attentive and affectionate toward L.R. during visits and brought food and toys to the visits. L.R. responded well during the visits and did not exhibit any signs of distress.
For the selection and implementation hearing in June 2020, CFS reported that parents had continued to attend weekly supervised visits with L.R., in which they continued to be attentive toward him and show him positive affection. Parents continued to bring food and toys to the visits, and L.R. continued to respond well to the visits. L.R. shared a loving bond with Ms. W., and she expressed a "strong desire" to adopt him. The hearing was continued to November 2020 because of notice issues regarding the Indian and Child Welfare Act.
In the three months preceding the November 2020 selection and implementation hearing, parents attended 20 supervised visits with L.R. Because of COVID-19, the visits were conducted via video teleconference and were split into twice weekly, 40-minute visits. Parents were attentive and engaging and inquired about L.R.'s activities throughout the day, including asking L.R. about his playtime, hobbies, and meals. Parents were supportive and communicated positively with L.R. when he had difficulty focusing on the visit or threw a tantrum. L.R. was eager to interact with parents and always communicated to them that he loved them. At the same time, L.R. sometimes became bored of interacting with parents online and started throwing temper tantrums during the visits.
Parents were 12 minutes late for a visit in early November 2020, and L.R. cried during that time, asking for parents. L.R. quickly recovered when parents joined the visit, and he interacted positively with them. L.R. lost focus at some point in the visit but rejoined and reengaged with parents later and cried when it was time to say goodbye to them, saying that the did not want them to leave.
L.R. appeared well-adjusted and displayed a strong bond with Ms. W., referring to her as "'Mom'" throughout the early November 2020 visit. L.R. was thriving in Ms. W.'s home.
Father and mother testified at the November 2020 selection and implementation hearing. Both objected to having their parental rights terminated, explaining that they believed that L.R. had been wrongfully removed. Mother said that L.R. would sometimes be upset when visits with parents ended. Father testified that L.R. had been in his care for one year and 11 months before being removed. Father described his visits with L.R. as loving and said that L.R. still called him "Dad." Father said that he was not opposed to a plan of guardianship.
The juvenile court found L.R. likely to be adopted. The court also found that parents had failed to carry their burden of demonstrating that they occupied a meaningful parental role in L.R.'s life. The court noted that parents' visits had always been supervised and that there was no evidence that L.R. would suffer any harm, let alone great harm, if the relationship with parents were severed. Finding the parental bond exception inapplicable, the court terminated parental rights.
DISCUSSION
Father argues that the juvenile court erred by terminating his parental rights, because the parental bond exception applied. We are not persuaded.
At the selection and implementation hearing under section 366.26, the court selects and implements a permanent plan for the child. (In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) When the court finds that "it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption" unless at least one of several statutory exceptions applies. (§ 366.26, subd. (c)(1); Celine R., supra, at p. 53.) Under the parental bond exception, the court need not terminate parental rights if the court "finds a compelling reason for determining that termination would be detrimental to the child" because (1) "[t]he parent[] ha[s] maintained regular visitation and contact with the child," and (2) "the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The exception "'must be considered in view of the legislative preference for adoption when reunification efforts have failed.'" (Celine R., at p. 53; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.)
We review the court's finding on the existence of the beneficial parental relationship for substantial evidence. (In re J.S. (2017) 10 Cal.App.5th 1071, 1080 [sibling bond exception]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey).) Whether "the relationship is a 'compelling reason' for finding detriment to the child" is a "'quintessentially' discretionary decision" that we review for abuse of discretion. (Bailey, supra, at p. 1315.)
"Appellate courts are divided over the appropriate standard of review for an order concerning the applicability" of the parental bond exception. (In re Caden C. (2019) 34 Cal.App.5th 87, 106, review granted July 24, 2019, S255839.) Some have reviewed the decision for abuse of discretion, others have reviewed it for substantial evidence, and still others have combined the two and taken a hybrid approach, as we do. (Ibid.) Our Supreme Court has granted review of the issue and will resolve "what standard governs appellate review of the [parental bond] exception to adoption." (In re Caden C. (2019) 444 P.3d 665 .) --------
The parent bears the burden of proving both elements of the parental bond exception. (Bailey, supra, 189 Cal.App.4th at p. 1314; In re I.R. (2014) 226 Cal.App.4th 201, 212.) "A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption. [Citation.] No matter how loving and frequent the contact, and notwithstanding the existence of an '"emotional bond"' with the child, '"the parents must show that they occupy 'a parental role' in the child's life."'" (In re Breanna S. (2017) 8 Cal.App.5th 636, 646.) In making this determination, "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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 Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Assuming for the sake of argument that father maintained regular visitation with L.R. and that L.R. derived some benefit from his relationship with father, the juvenile court did not abuse its discretion by determining that the benefit did not outweigh the benefit of adoption. The record reflects that L.R. enjoyed visiting with father and loved father. During parents' last supervised visit with L.R. in early November 2020, L.R. was upset when parents were late, and he asked for them. L.R. also cried when it was time to say goodbye to parents at that meeting and did not want the visit to end. That evidence shows that father shared an emotional bond with L.R. and that L.R. enjoyed visiting with father. But "[a] parent must show more than frequent and loving contact or pleasant visits." (In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) The relationship father enjoyed with L.R. during their visits is not sufficient to demonstrate that father and L.R. shared such a substantial, positive emotional attachment that terminating father's parental rights would greatly harm L.R.
There is no evidence that father occupied a "meaningful and significant parental role" in L.R.'s life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.) Father never progressed beyond supervised visits with L.R. and at most visited with L.R. for two hours per week. (See In re Casey D. (1999) 70 Cal.App.4th 38, 51 [difficult to carry burden of demonstrating parental bond exception when the parent has not advanced beyond supervised visits].) In contrast to the minimal, supervised visits father shared with L.R., the parent-child relationship that gives rise to this exception "'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 parent-child relationship.'" (In re K.P. (2012) 203 Cal.App.4th 614, 621.) The loving and affectionate contact L.R. enjoyed at visits with father 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.) As CFS correctly points out, father occupied the role of a "'friendly visitor,'" not a parent, and case law has long held that is not sufficient for the exception to apply. (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
Moreover, father failed to present any evidence that L.R.'s relationship with him was so significant that its termination would cause L.R. detriment. (C.F., supra, 193 Cal.App.4th at p. 555.) L.R. was well-adjusted and flourishing in the home of Ms. W. In fact, L.R. was so strongly attached to Ms. W. that he was fearful of being taken away from her. While it is possible, as father suggests, that L.R.'s fear of being taken away from Ms. W. resulted from the mistreatment L.R. may have suffered in his prior placement, this does not affect the analysis. L.R. was thriving in Ms. W.'s home in spite of the issues he encountered in prior placements. The juvenile court correctly determined that the record contains no evidence that L.R. would be harmed by termination of the parental rights of either parent, let alone harmed so severely as to outweigh the benefits of permanency through adoption.
For all of the foregoing reasons, we conclude that the juvenile court did not abuse its discretion by concluding that the benefits L.R. would receive from adoption outweighed any detriment that L.R. might suffer from severance of his relationship with father.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: RAMIREZ
P. J. McKINSTER
J.