Opinion
E072917
09-26-2019
In re R.R., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.R., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J271662) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Special Counsel, for Plaintiff and Respondent.
Ricardo R. (Father) appeals from the termination of his parental rights to his daughter R.R., arguing that the juvenile court erred by failing to apply the parental bond exception to termination under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i). We conclude that the juvenile court did not abuse its discretion by declining to apply the exception because its findings are supported by substantial evidence. We therefore affirm.
All further statutory references are to Welfare and Institutions Code.
BACKGROUND
A. Family History
R.R. was born in May 2010 to R.G. (Mother) and Father (collectively Parents). Both Parents have a dependency history with their other children—R.R.'s two older half-siblings and R.R.'s older sister, R.R.2. Although Mother and R.R.'s siblings are not part of this appeal, a brief summary of their dependency history provides relevant context.
In 2009, Mother's parental rights to two of R.R.'s half siblings were terminated. The children were removed from Mother because of Mother's substance abuse, neglect of the children, physical abuse of the children, domestic violence she had engaged in, and her propensity for being in relationships involving domestic violence.
In 2015, R.R.2, who was 16 years old, was removed from Mother and Father while Mother was living at a domestic violence shelter. When R.R.2 was taken into custody, Mother left the shelter with R.R., who was four years old at the time. Mother's whereabouts became unknown, and she consequently was not offered reunification services. R.R.2 was removed from Father because he suffered from a substance abuse problem, he used inappropriate physical and verbal discipline, he engaged in domestic violence in R.R.2's presence, and he failed to protect R.R.2 from sexual abuse that occurred in his home. Father's prior criminal history dated back to 1999 and included two convictions for disorderly conduct under the influence of alcohol or drugs, one conviction for inflicting corporal injury on a spouse, one conviction for possession of a controlled substance, and one conviction for possession of a smoking device. Reunification services were ordered for Father, but Father failed to participate in any of those services, which were therefore terminated at the six-month status review hearing. Father's parental rights to R.R.2 were subsequently terminated. B. R.R.'s Detention
In June 2017, when R.R. was seven years old, San Bernardino County Children and Family Services (CFS) took R.R. into protective custody after investigating allegations of general neglect, physical abuse by Mother, and substance abuse by Mother. The social worker's initial attempts to contact Mother at home were unsuccessful. The social worker then attempted to contact R.R. at school, but those initial attempts also failed because R.R. was absent from school for numerous days. When the social worker finally interviewed R.R. at school, R.R. explained that she missed so much school because she usually was too tired to wake up in the morning. She stayed up "'all night'" playing with her tablet.
When the social worker eventually made contact with Mother at home, Mother confirmed that R.R. did not wake up sometimes in the morning. Mother agreed to submit to a drug test that day but was unable to because there was not a doctor at the drug testing site.
The social worker made numerous unsuccessful attempts to follow up with Mother by phone and by contacting Mother at home. On June 27, 2017, the social worker went to the house at 7:00 p.m. in another attempt to contact Mother. The front door was open. As the social worker approached it, he saw R.R. R.R. closed the door.
The social worker knocked on the front door for several minutes without any response and became concerned that R.R. was at home alone. Through a slightly open window on the side of the house, the social worker called into the home, saying that he needed to know that there was someone inside the house with R.R. He also called out to R.R. and asked her to speak with him. No one responded to either inquiry. The social worker walked to the back of the house to ensure that no one was leaving and did not see anyone. When returning to the front of the house, the social worker noticed that the side window had been closed. The social worker returned to the front door, knocked loudly, and reiterated that he was concerned that R.R. was home alone.
The social worker warned that he would call law enforcement if no one responded. No one responded, so he called the police. While awaiting their arrival, the social worker continued to knock on the front door and ask for a response, to no avail.
When police arrived at the house, a police officer knocked on the door, identified himself as a police officer, and received no response. That police officer and the watch commander knocked and warned that they would forcibly enter the residence if they were not shown that R.R. was okay. They continued to knock on the door for another twenty minutes without receiving any response. Police officers forcibly entered the house by kicking open the door. Debris flew from the door and the doorframe. The officers entered the house with their weapons drawn.
Both Parents were inside the house with R.R. Both Parents appeared intoxicated. Mother told the social worker that Father would not allow her to open the door. Mother did not understand that the social worker needed to follow up with her. She also did not understand how she had endangered R.R. by not responding to the social worker or to police officers at the door. In response to questioning about why R.R. had missed so much school, Mother contradicted her previous explanation and said that Father would sometimes take R.R. and not bring her back.
The social worker attempted to have a conversation with Father. Father's responses were incoherent. The police officers believed that Father was under the influence of a central nervous system stimulant. Both Parents were arrested. R.R. was removed and placed in the home of her maternal uncle and aunt. While in custody, Father tested positive for methamphetamine, marijuana, and alcohol.
After being released from jail the next day, Father went to the CFS office and spoke with the social worker. He said that R.R. was "his life" and that he would not be able to live without her, so he hoped to be provided reunification services. The social worker explained that reunification services were unlikely, given Father's history of having his parental rights to R.R.2 terminated two years before. Despite the positive drug test the day before, Father denied using drugs.
On June 29, 2017, CFS filed a dependency petition under section 300, alleging that R.R. was at substantial risk of serious physical harm as a result of both Parents' failure to adequately protect her or to provide her regular care due to Parents' "extensive, abusive, and chronic use of drugs or alcohol." (§ 300, subd. (b)(1).) The petition also alleged that both parents had placed R.R. at substantial risk of harm by engaging in acts of domestic violence in R.R.'s presence and by failing to comply with police commands when CFS was conducting a welfare check. (§ 300, subd. (b)(1).) CFS further alleged that R.R. was at substantial risk of abuse or neglect because her sibling and half siblings were previously removed from Parents. (§ 300, subd. (j).) The juvenile court detained R.R. and ordered once weekly supervised visits. C. Jurisdiction and Disposition Proceedings
Because of Parents' history of chronic alcohol and substance abuse and significant history with CFS, CFS recommended that Parents not be offered reunification services. R.R. wanted to visit with Parents, but they had failed to respond to the social worker who was attempting to arrange for supervised visitation with them at a visitation center. Mother and Father had not visited at all with R.R. by July 20, 2017, nearly three weeks after her removal.
The initial jurisdiction and disposition hearing was held in July 2017. Father's request to bifurcate the proceedings was granted. The court ordered the parties to attend mediation to resolve the issues of visitation and reunification services.
At the mediation session held on September 6, 2017, Father agreed to submit on revised allegations under subdivision (b)(1) of section 300, alleging that R.R. was placed at risk by Father's current substance abuse problem and his history of domestic violence. Father also agreed to submit on the other allegations under subdivisions (b)(1) and (j) of section 300.
At a contested jurisdiction and disposition hearing held on September 6, 2017, after the mediation session, CFS continued to recommend no reunification services. Father had started visiting with R.R., and the visits were reported to be going well. However, Father missed several visits. CFS reported that R.R. wanted to be returned to Parents but mostly to Father. Concerned about R.R.'s interest in returning, the court continued the disposition hearing for six weeks to allow Father to demonstrate that he had engaged in services and made substantial progress to warrant being granted reunification services.
On October 23, 2017, CFS filed an additional information report with the court. Father had engaged in services and appeared to be making progress. Father submitted to five drug tests between September 6, 2017, and October 17, 2017, and the results were all negative. Father regularly attended visits with R.R. The visits were positive. Because of Father's engagement in services and R.R.'s age, CFS revised its recommendation to offering Father reunification services.
At the disposition hearing held two days later, the court adopted the findings and recommendations of CFS. Father was found to be R.R.'s presumed father. Reunification services were ordered for Father. D. Six-Month Review Period
During the first six-month review period, Father participated in services and attended weekly two-hour supervised visits with R.R. at a park. He and Mother visited R.R. together. R.R. appeared happy to see them, and the visits were reported to be going well.
In January 2018, R.R. started receiving wraparound services to address difficulties she was having after visiting with Parents. R.R. had "issues hitting others, engaging [in] inappropriate conversations and experienc[ing] nightmares." With services, R.R. made good progress in regulating her emotions, expressing her feelings appropriately, and acting aggressively less frequently.
Father was required to participate in random drug testing. He tested negative three times but was a no-show for six other tests between November 2017 and March 15, 2018. Father had a note dated February 21, 2018, from an urgent care center stating that Father's drug test referral had expired.
At the six-month status review hearing on April 25, 2018, the court ordered reunification services continued to the 12-month review hearing. E. Twelve-Month Review Period
Over the next review period, Father continued to attend weekly two-hour supervised visits with R.R. No details about the visits were provided in the 12-month status review report.
Father had participated in and completed some services. However, CFS reported that Father made minimal progress toward demonstrating how he benefitted from the services he received. Father continued to drug test inconsistently. Of 14 scheduled and random drug tests between January 19, 2018, and July 20, 2018, Father did not show up for eight. CFS could not confirm whether Father had consistently remained clean and sober and therefore could not determine if Father had mitigated one of the initial reasons for R.R.'s removal, namely, Father's alcohol and substance abuse. CFS recommended that Father's services be terminated.
R.R.'s caregivers were "extremely bonded and attached to" R.R. and were interested in adopting her if reunification failed. R.R. continued to make progress with wraparound services. She was learning to communicate better, developing confidence, and learning personal hygiene skills.
At the 12-month status review hearing on October 2, 2018, the court adopted the findings and orders of CFS, terminated services for Parents, and scheduled a hearing to select and implement a permanent plan. Supervised weekly visits with R.R. were continued. Acknowledging that Father appeared physically healthier and had made some progress, the court encouraged Father to file a section 388 petition before parental rights were terminated to demonstrate that further progress had been made. E. Postreunification Visitation
In January 2019, the selection and implementation hearing was continued to allow CFS more time to complete an adoption assessment of R.R.'s aunt and uncle. R.R.'s maternal aunt and uncle wanted to adopt R.R., and R.R. said that she wanted to be adopted by them.
CFS reported that Father failed to attend any weekly visits in December 2018. R.R.'s aunt and uncle reported that "the visits with father [were] confusing for [R.R.] as he promises her a lot of things, including going home to live with him." The court granted CFS's request to reduce the visits to once monthly. F. Selection and Implementation Hearing
The selection and implementation hearing was held on May 30, 2019. CFS recommended that Father's parental rights be terminated and that a permanent plan of adoption be implemented. R.R. appeared "very comfortable" in the placement with her aunt and uncle. R.R.'s aunt and uncle loved R.R. very much and wanted to adopt her to provide her a stable home. R.R. wanted to be adopted by her aunt and uncle if she could not live with her parents. R.R. was concerned about not having any contact with Parents after being adopted.
Father attended his monthly visits with R.R. after the January 30, 2019, hearing. R.R. appeared more bonded to Father than to Mother. She engaged in activities with Father. At the end of the visits, R.R. did not cry or refuse to leave.
Father testified. He provided no explanation for failing to appear for drug tests, but he claimed to have stopped using drugs 18 months to two years before. He claimed that all of the missed visits with R.R. were not the result of any failure on his part but were the fault of either R.R.'s caregivers or the visiting coach.
When Father and R.R. visited, R.R. was happy to see him and called him "Dad." She would hug him and stay close to him. During the visits, R.R. and Father painted, did arts and crafts, took pictures of one another, and talked about school. Father described R.R. as a "daddy's girl" who would be disappointed when their visits ended.
Father and R.R. would "always talk about school." He would ask R.R. about her grades and about her school activities in general. During their most recent visit on May 29, 2019, the day before the hearing, Father asked R.R. about how school was going. R.R. responded, "'Daddy, school's out. There's no more school.'"
Father argued that the parental bond exception to termination applied. The juvenile court rejected the argument and concluded that Father failed to prove both elements of the exception. On the first element, the court gave more weight to CFS's report than Father's testimony and found that Father had not visited with R.R. consistently. On the second element, the court found that the bond that existed between Father and R.R. was the kind that exists for "any parent-child relationship, just in nature of having some benefit, but it's hard for the [c]ourt to say that is anything other than a friendly visitor type relationship with the [F]ather and that the benefits of maintaining that relationship outweigh the benefits of adoption."
The court terminated Father's parental rights and ordered adoption as R.R.'s permanent plan.
The court also terminated Mother's parental rights.
DISCUSSION
Father argues that the juvenile court erred by terminating his parental rights because the parental bond exception applied. We disagree.
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.) As relevant here, the parental bond exception provides that a court can forego terminating 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).) This exception "to the general rule that the court must choose adoption where possible—'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, 1343.)
We review the court's finding on the existence of the beneficial parental relationship for substantial evidence. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) 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. (Id. 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 recently granted review of the issue and will therefore 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 showing that the parental bond exception applies. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) "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 (Autumn H.).)
Father has not carried his burden of showing that the trial court abused its discretion or made findings that were not supported by substantial evidence. The trial court's finding that Father did not establish that he had maintained regular visitation and contact with R.R. is supported by substantial evidence. In the permanency planning report, the social worker reported that Father "did no[t] show up to visits in December" 2018. No explanation for the missed visits was provided in the report. Father testified that he was not responsible for missing any of those visits. Rather, according to him, all of the missed visits were attributable to various issues with the caregivers or with the visitation monitor. Father's testimony merely provides conflicting evidence on whether the missed visits could be excused or overlooked.
We do not with reweigh conflicting evidence. Instead, "[o]n review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.) Consistent with the juvenile court's finding, we therefore presume that the missed visits were properly attributed to Father and not to the actions of others. The juvenile court was under no obligation to believe Father's testimony, and neither are we.
Regardless of fault for the missed visits, Father contends that he established the first element of the parental bond exception because he maintained consistent visits with R.R. throughout the nearly two-year period of visitation and only missed "a few" visits. Father cites no legal authority to support the proposition that he could miss a few visits and still carry his burden of demonstrating that he maintained regular visitation and contact with R.R. While the record indicates that Father mostly maintained regular and consistent visits with R.R. after reunification services were ordered, that is not the statutory standard. To prove the first element of the parental bond exception, Father must demonstrate that he maintained regular visits and contact. (§ 366.26, subd. (c)(1)(B)(i).) Missing a few visits might create enough irregularity to show that Father did not carry his burden on that element. However, because the record does not support Father's characterization of how many visits he missed, we need not decide the effect that missing a few visits could have on the regularity determination.
Father missed more than a few visits. Father was not present for any of the weekly visits in December 2018—that could have been four or five visits. In addition to those missed visits, Father failed to respond to the social worker's initial efforts to set up visits with R.R. for nearly one month after R.R. was detained. And after visitation started Father missed several visits before reunification services were ordered. Given this totality of missed visits, there was substantial evidence to undermine the existence of regular visitation and contact necessary to establish the first element of the parental bond exception. (In re J.C. (2014) 226 Cal.App.4th 503, 531-532.) On this ground alone, Father has failed to carry his burden on appeal of demonstrating that the trial court erred under the applicable standard of review.
The record also confirms that the juvenile court did not abuse its discretion when it determined that the strong preference for adoption was not outweighed by the positive relationship Father maintained with R.R. during visitation. There is no dispute that R.R. enjoyed visiting with Father. She appeared happy during their weekly supervised visits, would hug and kiss Father, and called Father "Dad." Father also points out that although R.R. indicated that she wanted to be adopted by her aunt and uncle, she maintained that her first preference was to live with Parents. This evidence shows that Father shared an emotional bond with R.R. and that he and R.R. enjoyed their visits. But that is not sufficient to demonstrate that Father and R.R. shared such a substantial, positive emotional attachment that terminating Father's parental rights would greatly harm R.R. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109 (Andrea C.).)
There is no evidence that Father occupied a "meaningful and significant parental role." (Andrea C., supra, 75 Cal.App.4th at p. 1109.) The closest Father came to acting like a parent with R.R. was talking to her about school during their limited visits. However, Father was so removed from acting in a meaningful parental capacity that he did not even know when R.R. was attending school. Father failed to show anything more than that he and R.R. enjoyed loving and frequent contact. 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.)
Father failed to present any evidence that R.R.'s relationship with him was so significant that its termination would cause R.R. detriment. Father never progressed beyond supervised visits with R.R. Throughout the review period, Father persistently failed to appear for and submit to mandatory drug tests, making it impossible for CFS to verify whether Father was clean and sober and capable of remaining clean and sober. In addition, Father made inappropriate comments during visits that undermined R.R.'s well-being. Father promised R.R. she would be going home to live with him, causing R.R. to be confused. Visiting with Father was so disruptive that R.R. started receiving wraparound services to help her cope.
Moreover, the record indicates that R.R. was happy, attached, and well bonded to her aunt and uncle and that she was thriving in their home. They loved her and wanted to adopt her, and she wanted to be adopted by them. Moreover, the benefits to R.R. of being in a secure and stable home for nearly two years were apparent. She was communicating more effectively and acting less aggressively toward others. In contrast to when she lived with Parents and was frequently absent from school, R.R. was excited about school and had done so "incredibly well" that she received an award for being the most improved student.
For all of the foregoing reasons, we conclude that the juvenile court did not abuse its discretion by concluding that the benefits R.R. would receive from adoption outweighed any possible detrimental impact that might occur from severance of the relationship she had with Father.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. We concur: CODRINGTON
Acting P. J. RAPHAEL
J.