Opinion
D071168
03-15-2017
In re A. R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. AMANDA R. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J519174) APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee Lagotta, Judge. Affirmed.
Amanda R. (Mother) and T. R. (Father) appeal the order terminating their parental rights to their daughter, A.R., entered at a permanency plan and selection hearing held under Welfare and Institutions Code section 366.26. Mother and Father (together, Parents) allege the court erred because it misapplied the beneficial parent-child relationship exception (§ 366.26, subd. (c)(1)(B)(i)) when assessing whether termination was proper. We conclude the court had substantial evidence to conclude the beneficial parent-child relationship exception did not apply, and did not abuse its discretion in terminating their parental rights.
All further statutory references are to the Welfare and Institutions Code.
I
FACTUAL AND PROCEDURAL SUMMARY
We set forth only those facts relevant to our evaluation of the court's ruling at the permanency planning hearing challenged in this appeal.
A. Background
In April 2015 San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of three-month-old A.R. alleging there was a substantial risk she would suffer serious physical harm or illness as a result of failure to adequately supervise or protect her because of recurrent domestic violence between Parents. On April 29, 2015, the court made a true finding on the petition, declared A.R. a dependent, and removed her from Parents' custody and placed her in a confidential foster home. Parents were ordered to engage reunification services, including individual therapy, group domestic violence therapy, and parenting classes.
The reunification period was marked by numerous reports of new episodes of domestic violence between Parents, including an incident in August 2015 that led the court to issue a criminal protective order to protect Father from Mother. During this time, Father also exhibited violence towards third persons. Although Mother participated in some individual and group therapy sessions during the reunification period, her attendance was inconsistent and she had "minimal to no" progress on the domestic violence issues. Father also participated in individual and group therapy sessions but he was not internalizing the information, because he continued to live with Mother and engage in domestic violence. Although both Mother and Father articulated the need to dissolve their marriage because they could not maintain the relationship without violence, they continued to seek conjoint therapy or co-parent coaching, and the evidence suggested they continued to live together through the beginning of 2016.
Parents visited A.R. during the initial six months following the initial detention and engaged with her during visits, although both Mother and Father missed or rescheduled visits during periods they were incarcerated or had other commitments. Persons observing those visits opined Parents had a good understanding of A.R.'s developmental stage, and appeared to be loving of and attentive to her, but Father's tendency to become angry in A.R.'s presence was concerning.
At the October 26, 2015, six-month review hearing, the Agency recommended services be terminated for Parents, A.R. remain a dependent, and a section 366.26 hearing be scheduled. A.R.'s Court Appointed Special Advocate (CASA) agreed with this recommendation. The court set the matter for trial.
After a contested review hearing the court, considering all of the evidence before it, found Parents had failed to make substantive progress with the provisions of their case plans, return would create a substantial risk of detriment to A.R., and there was no substantial probability A.R. would be timely returned to their care even if reunification services were extended. Accordingly, the court terminated reunification services and set a section 366.26 hearing.
B. The Section 366.26 Assessments
Agency filed section 366.26 reports, and a subsequent addendum, recommending Parents' parental rights be terminated and a permanent plan of adoption be ordered. The social worker noted that Parents visited A.R. regularly. Moreover, the social worker opined there was some bond, but Father's bond was that of "a fun relationship" and "friendly visitor," and A.R. "is not in distress at the end of visitation, does not ask for Father in his absence and is able to carry on in her daily routine without concern." The social worker similarly opined Mother's bond to A.R. was also that of a "friendly visitor," and noted that "[a]t the end of visits, [A.R.] separates easily, and is used to the routine of visit time and then back into the stroller [and A.R.] does not look for Mother in her absence or remain in distress when not in Mother's presence."
The social worker also reported A.R. was assessed as generally adoptable, with 25 possible adoptive families in San Diego County willing to adopt a child with her characteristics. Additionally, A.R. was assessed as specifically adoptable because her caregivers, with whom she had been placed since late 2015, wanted to adopt her.
The social worker opined, based on her observations, that little or no progress had been made to end the cycle of domestic violence marking Parents' relationship, and Parents remained in regular contact with each other through the date of the assessment and had continued their pattern of domestic violence. Their visitation with A.R. had never progressed to an unsupervised setting and was inadequate to have developed the secure attachment bond that would qualify as an exception to the preference for the stability and permanence of an adoptive placement. Thus, the social worker opined there was no detriment to A.R. if parental rights were terminated, and a permanent plan of adoption was in A.R.'s best interests.
In a September 26, 2016, addendum, the social worker reiterated concerns over the continued domestic violence between Father and Mother, as well as Father's violence toward others. The social worker attached a police report indicating that, on September 15, 2016, Father was arrested on felony charges of robbery and assault after Father met and paid a prostitute for sex but, when a conflict arose between them he grabbed her, choked her and caused her to lose consciousness, and then took her purse and fled.
The CASA concurred with the Agency's assessments and recommendations.
C. The Contested 366.26 Hearing
The court heard testimony from A.R.'s social worker, Father and Mother. At the contested hearing, Parents argued against terminating parental rights because the parent-child bond exception, under section 366.26, subdivision (c)(1)(B)(i), should be applied. After considering their testimony, as well as the various reports and addenda admitted at trial, the court found A.R. would be adopted if parental rights were terminated, she was generally adoptable, and that none of the exceptions under section 366.26, subdivision (c)(1), pertained here. The court specifically noted the parent-child bond exception had two prongs—regular visitation and that maintaining the relationship outweighed the benefits of permanence from an adoptive placement—and although the former was shown, the court concluded the benefits of adoption outweighed the benefits of maintaining A.R.'s relationship to Parents. The court, after observing Parents had 17 months of services and nevertheless continued in their dysfunctional relationship that inhibited their ability to protect A.R. from their own dysfunctionality, found that A.R. was bonded to the caregiver who wanted to adopt her, and the benefits of the safety and permanence that such adoption would provide outweighed preserving Father's and Mother's relationships to A.R. Accordingly, the court ordered parental rights terminated and referred A.R. for adoptive placement.
The court also heard testimony from a social worker assigned to handling a dependency proceeding involving A.R.'s younger sibling. He testified, among other things, that Parents are attending the mandated therapy sessions but there did not appear to be a "lot of progress" in their therapy concerning domestic violence, nor had their behavior shown any significant improvement.
Parents timely appealed.
II
CHALLENGES TO THE RULING TERMINATING PARENTAL RIGHTS
Mother and Father assert the trial court erred when it ordered their parental rights terminated and approved a permanent plan of adoption for A.R., arguing there was no substantial evidence that the parent-child bond exception did not apply.
A. Legal Framework
"At a section 366.26 hearing the court is charged with determining a permanent plan of care for the child. If a child is likely to be adopted, adoption is the plan preferred by the Legislature. [Citation.] The Legislature has provided an exception to the general rule of adoption: the court should not order a permanent plan of adoption when termination of parental rights 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.' " (In re Casey D. (1999) 70 Cal.App.4th 38, 50 (Casey D.), quoting former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).)
Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1) (In re Michael G. (2012) 203 Cal.App.4th 580, 589), such as the exception for the parent-child beneficial relationship. "In the context of the dependency scheme prescribed by the Legislature, we interpret the 'benefit from continuing the [parent/child] relationship' exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, 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, italics added (Autumn H.).)
"Interaction between [the] natural parent and child will always confer some incidental benefit to the child. The significant attachment from [the] child to [the] parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from [the] child to [the] parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
"The factors to be considered when looking for whether a relationship is important and beneficial are: (1) the age of the child, (2) the portion of the child's life spent in the parent's custody, (3) the positive or negative effect of interaction between the parent and the child, and (4) the child's particular needs." (In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) "[F]or the [beneficial relationship] 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." (Id. at p. 468.) Frequent and loving contact between parent and child, without the existence of a parental role to the child, may be insufficient to justify the selection of a permanent plan other than adoption. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
On appeal, we employ a hybrid standard of review by applying "the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.) The reason for this hybrid standard was explained in In re Bailey J. (2010) 189 Cal.App.4th 1308, in which the court observed the assessment of whether an adoption exception applies involves two component determinations:
"Since the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination. . . . [¶] The same is not true as to the other component of these adoption exceptions. The other component of both the parental relationship exception and the sibling relationship exception is the requirement that the juvenile court find that the existence of that relationship constitutes a 'compelling reason for determining that termination would be detrimental.' (§ 366.26, subd. (c)(1)(B), italics added.) A juvenile court finding that the relationship is a 'compelling reason' for finding detriment to the child is based on the facts but is not primarily a factual issue. It is, instead, a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption. [Citation.] Because this component of the juvenile court's decision is discretionary, the abuse of discretion standard of review applies." (Id. at pp. 1314-1315.)
B. Analysis
We conclude Parents have not shown that the evidence, viewed in the light most favorable to the judgment (Autumn H., supra, 27 Cal.App.4th at pp. 575-576), is insufficient to support the determination that there was not a significant parent-child bond between Parents and A.R., nor have they shown that it was an abuse of discretion to determine that the benefits of adoption outweighed the detriment that would accompany severance of the relationship that had developed between Parents and A.R. First, there was ample evidence from which the court could have concluded neither parent had a significant parent-child bond with A.R. The social worker opined both Father and Mother, whose inability to resolve their domestic violence issues compelled the Agency to limit them to separate and supervised visits, had developed little more than the bond of a "friendly visitor," and A.R. displayed no distress when those visits ended, did not ask for them when they were absent, and carried on her daily life without concern when apart from them. In contrast, A.R. was "well bonded with her caregivers," appeared to be thriving in their care, and the caregivers were able and willing to provide a permanent and safe home for A.R. that Parents had shown themselves incapable of providing. There was ample evidence to support the conclusion that Parents, by their inability to confront and break free of their dysfunctional relationship, had prevented themselves from participating with A.R. in the "day-to-day interaction, companionship and shared experiences" (Autumn H., supra, 27 Cal.App.4th at p. 575), or from providing A.R. the "attention to the child's needs for physical care, nourishment, comfort, affection and stimulation" (ibid.), from which the "significant, positive, emotional attachment" (ibid.) contemplated by the statutory exception might have developed.
On appeal, Mother's sole claim is that the trial court erred because the evidence showed, as a matter of law, that there was a significant parent-child bond. Mother correctly points out there was evidence she provided appropriate care for and love toward A.R. during her supervised visits, and there was no evidence A.R. did not enjoy Mother's attention or shunned her during such visits. However, evidence that A.R. responded to Mother as a friendly person in A.R.'s life is not the equivalent of evidence there was a significant parent-child bond. The court in In re Angel B., supra, 97 Cal.App.4th 454 explained that where, as here, the child is too young to understand the concept of a biological parent and has spent relatively few hours visiting with the parent in contrast to the many hours being parented by the foster family, the fact the parent-child interactions have been positive during their visits is not dispositive because "for 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." (Id. at pp. 467-468.) Because the evidence cited by Mother is consistent with the conclusion A.R. viewed Mother as a friendly visitor, particularly in light of the evidence showing the ease with which A.R. separated from Mother at the end of those visits, we cannot disturb the conclusion that there was not a significant parent-child bond between A.R. and Mother.
Moreover, Parents have not shown the court abused its discretion in concluding they failed to prove that the benefit to A.R. of continuing their relationship outweighed the benefits of adoption such that termination of parental rights would greatly harm her. As Autumn H., supra, 27 Cal.App.4th at page 575 explained, "the 'benefit from continuing the [parent/child] relationship' exception . . . mean[s] the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." When a child has been adjudged a dependent of the juvenile court, the child should not be deprived of an adoptive parent merely because the birth parent has maintained a relationship that confers a modicum of benefit, because preserving that modicum can detract from the child's need for a permanent parent. (See In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Here, A.R. lived with Parents for her first three months but, by the time of the section 366.26 ruling, had been out of their custody for the next 18 months of her life and had been with her current caregivers for 10 months. These caregivers provided her day-to-day care, took her to doctors for regular check-ups and implemented recommended dietary changes (despite Father's resistance) to resolve her digestive problems, and showed themselves willing and able to adopt A.R. and provide for her physical, emotional, and developmental needs. Against benefits that would accrue to A.R. over the course of her formative years from the safety and security provided by an adoptive placement, Parents offered nothing more than the benefits A.R. might enjoy from occasional separate, supervised visits by a friendly visitor. On this record, Parents have failed to show the court abused its discretion when it concluded that continuing those visits did not outweigh the benefits of adoption.
On appeal, Father argues reversal is required, relying (in part) on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) and In re S.B. (2008) 164 Cal.App.4th 289 (S.B.). Neither case aids Father's argument. Although the Amber M. court concluded the trial court erred by declining to apply the beneficial relationship exception, the evidence there was markedly different from the facts of this case. In Amber M., all three children spent a significant time with the mother prior to removal, including the oldest having spent her first five years in the mother's care. (Amber M., at p. 689.) Moreover, in Amber M., the CASA, bonding psychologist, and one of the children's individual therapists opined the mother had a strong bond with the children, and the court noted that "[t]he common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption," while also noting "[t]he social worker, the only dissenting voice among the experts, provided no more than a perfunctory evaluation of Mother's relationship to the children." (Id. at p. 690.) Finally, in Amber M., the children were able to verbalize that they missed their mother, and at least one of the children had a difficult time parting with the mother at the end of visits. (Id. at pp. 689-690.) The evidence here is markedly different: A.R. had spent only her first three months with Parents, had no distress transitioning from visitation, and did not ask for either Mother or Father when they were not around. We conclude Amber M. is too factually distinct to provide any guidance here.
We are equally convinced S.B., supra, 164 Cal.App.4th 289 provides no assistance here. In S.B., this court required that a father relying on the parent-child bond establish the existence of a significant, positive, emotional attachment between him and his daughter and, in finding the father met this requirement, this court noted his role as the child's primary caretaker for three years provided the "day-to-day interaction, companionship and shared experiences" that forms the foundation of that bond. (Id. at pp. 298-299.) In S.B., this court also recognized that such bond, once established, could be continued and developed with regular, consistent and appropriate visitation with the child, even after removal from his custody. (Ibid.) However, this court has subsequently cautioned that "[t]he S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (In re Jason J., supra, 175 Cal.App.4th at p. 937.)
Here, Father did not act as A.R.'s primary caretaker for three years, and hence lacked three years of the "day-to-day interaction, companionship and shared experiences" that provides the milieu for creating that bond. Father had many visits with A.R., but only on an occasional basis and in a supervised setting. Although the evidence supports the conclusion those visits provided pleasant interludes in A.R.'s life, we cannot say that those visits, while pleasant for A.R. and involving appropriate behavior by Father, as a matter of law created the parent-child bond of sufficient depth that would preclude the court from finding A.R. viewed Father as a friendly visitor rather than as a parent.
Father finally asserts that the court's order must be reversed because it erroneously considered Parents' lack of progress during the reunification period when it terminated their parental rights. He asserts that, although the evidence may have supported the conclusion Parents had made little or no progress in improving the conditions that led to A.R.'s removal, the current inability of a parent to provide a safe home cannot justify termination of parental rights, and therefore the court's focus was misplaced.
During the hearing, the court observed:
"I do find that the benefits of adoption outweigh any detriment that [A.R.] may have as the result of the termination of parental rights. Because after 17 months of services, the fact that the minor has been out of her parents' care since she was three months old, the domestic violence issues, and the relationship between the parents continues, I think it was the social worker who—I'm talking about the male social worker, who indicated that safety is defined as 'acts of protection over time.' [¶] . . . [¶] And here, those acts of protection over time, based upon the totality of the evidence, have not been demonstrated, even after almost 18 months of services."
Father relies on Amber M. for the proposition that the current inability of a parent to provide a safe home cannot justify termination of parental rights. However, Father overstates the holding in Amber M. First, it was factually distinguishable because, unlike here, the children had been in the mother's care for significant periods of their lives before they were removed. (Amber M., supra, 103 Cal.App.4th at p. 689.) Moreover, the Amber M. court recognized that the mother was devoted to her children "and did virtually all that was asked of her to regain custody." (Id. at p. 690.) In that context, the court concluded that, although the mother "was not ready for the children's return to her custody . . . that fact . . . can[not] justify the termination of parental rights." (Ibid.) Certainly, substantial progress toward curing the underlying problems, when coupled with a strong parent-child bond developed over many years of serving as the primary caretaker, may be relevant in some circumstances. However, neither factor is present here. --------
However, contrary to Father's argument, the facts adverted to by the trial court were not irrelevant to the assessment of the issues presented at a section 366.26 hearing. As this court observed in Casey D., supra, 70 Cal.App.4th 38:
"Another way of stating the beneficial parent-child concept described in Autumn H. is: a relationship characteristically arising 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. A strong and beneficial parent-child relationship might exist such that termination of parental rights would be detrimental to the child, particularly in the case of an older child, despite a lack of day-to-day contact and interaction. The Autumn H. standard reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist, one of those exceptional circumstances being the existence of such a strong and beneficial parent-child relationship that terminating parental rights would be detrimental to the child and outweighs the child's need for a stable and permanent home that would come with adoption. That showing will be difficult to make in the situation, such as the one here, where the parents have essentially never had custody of the child nor advanced beyond supervised visitation. The difficulty is due to the factual circumstances of the parents in failing to reunify and establish a parental, rather than caretaker or friendly visitor[,] relationship with the child." (Id. at p. 51, italics added.)
Here, the court's comments merely articulated the facts that undergirded some of the factors relevant to its decision: (1) Parents' domestic violence issues compelled removal of A.R. at an extremely young age before the significant parent-child bond could begin to crystalize; (2) Parents' inability to make progress on those issues mandated that for the next 18 months A.R. remained out of the "[d]ay-to-day contact . . . typical in a parent-child relationship" (Casey D., supra, 70 Cal.App.4th at p. 51); and (3) Parents' continued dysfunctionality meant they "essentially never had custody of the child nor advanced beyond supervised visitation" (ibid.), all of which were relevant factors in assessing whether Parents had shown this was "the exceptional case where a beneficial parent-child relationship existed at the time of the section 366.26 hearing." (Ibid.) Accordingly, we reject Father's claim that the court's reference to Parents' lack of progress during the reunification phase of the proceedings was wholly irrelevant to assessing whether to terminate parental rights.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. AARON, J.