Opinion
D069720
01-23-2017
In re E.Q., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.Q., et al., Defendants and Appellants. K.L. et al., Movants and Respondents.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant C.Q. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant S.O. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent. Judith E. Klein for De Facto Parents and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EJ3733) APPEALS from an order of the Superior Court of San Diego County, Kimberlee Lagotta and Donal B. Donnelly (Judge of the Imperial Sup. Ct. assigned by the Chief Justice pursuant to art. IV, § 6 of the Cal. Const.), Judges. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant C.Q. Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant S.O. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent. Judith E. Klein for De Facto Parents and Respondents.
C.Q. and S.O. separately appeal an order under Welfare and Institutions Code section 366.26 selecting adoption as the permanent plan for their daughter E.Q., and terminating their parental rights. They both contend the court erred in finding there was not a beneficial parent-child relationship between them and E.Q. within the meaning of section 366.26, subdivision (c)(1)(B)(i) that precluded the termination of their parental rights. S.O. additionally contends the court violated her due process rights by terminating her parental rights based solely on her failure to obtain more visitation than what the Agency and E.Q.'s caregiver would allow. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
E.Q. was born in May 2012. In July 2012, C.Q. beat S.O. on the head with a belt buckle during a violent altercation between them while E.Q. was present in a baby swing. S.O. kicked C.Q. out of the home and ended their relationship after that incident, but two months later, C.Q. punched S.O.'s right hand several times while she was holding E.Q. C.Q. was arrested for spousal abuse and the parents were advised to protect E.Q. from exposure to future domestic violence. In September 2012, S.O. obtained a restraining order against C.Q. that was set to expire in 2015.
In March 2013, when E.Q. was 10 months old, S.O. was involved in another violent incident with her new boyfriend, George L. S.O. reported that George hit her with a fist, shoved her into a cabinet, and threatened to kill her. He then pushed her onto her bed and started strangling her. E.Q., who was sleeping nearby in her crib when the altercation started, awoke during the incident and started to cry. S.O. initially denied E.Q. was present during the incident because she was afraid CPS (Child Protective Services) would remove E.Q. from her. During an investigation of the incident, S.O. reported that George, whom she had met only four months prior, had been violent with her previously and had threatened that someone would follow S.O. home and kill E.Q. S.O. reported she had never had a relationship in which she had not been physically abused.
Because S.O. had failed to protect E.Q. from three separate domestic violence incidents during the first 10 months of E.Q.'s life, the Agency opened a voluntary services case and S.O. agreed to voluntarily place E.Q. in the care of the maternal grandparents. After placing E.Q. with the maternal grandparents, S.O. regularly participated in supervised visits with E.Q. in the caregivers' home, but continued to expose E.Q. to domestic turmoil by screaming, yelling, and cussing at the maternal grandparents. The maternal grandparents began documenting S.O.'s visits and occasionally recorded and took videos of her outbursts. The Agency reported it was "clear that [S.O.'s] yelling and screaming [rose] to the level of domestic violence." On multiple occasions, S.O. threatened to take E.Q. to Mexico or somewhere else outside of San Diego County. She told the maternal grandmother that a friend had told her " 'all I have to do is take [E.Q.] and move to Calexico and CPS will leave me alone.' " The Agency was concerned because S.O. had a sister living in Mexico with whom S.O. could stay.
The maternal grandmother's husband is E.Q.'s stepgrandfather. S.O.'s mother and biological father separated when S.O. was young and S.O. reportedly had "little to no contact" with him. For convenience, we refer to the maternal grandmother (K.L.) and stepgrandfather as the maternal grandparents.
In October 2013, the Agency filed a petition on behalf of E.Q. under section 300, subdivision (b), alleging she was periodically exposed to violent confrontations "in that [S.O.] had 3 incidents of violence in [E.Q.'s] presence involving punching, hitting, and choking." The petition further alleged that although S.O. had engaged in voluntary services to address domestic violence, "she continued to demonstrate poor impulse control, when she pushed the maternal grandmother, yelled and screamed, threatened to take [E.Q.] to Mexico and acted belligerently on numerous occasions." The petition alleged S.O.'s voluntary services were scheduled to end and S.O. still demonstrated problems that placed E.Q. at a substantial risk of serious physical harm.
At the detention hearing in October 2013, the court found C.Q. was E.Q.'s presumed father and ordered E.Q. detained in an approved home of a relative (the maternal grandparents). The court granted the parents liberal supervised visitation.
In its report for the jurisdiction/disposition hearing, the Agency stated that S.O. had shown "a tremendous lack of impulse control when it comes to confrontations with the maternal grandmother. Both [S.O.] and [C.Q.] have made several statements indicating they continue to prioritize their own needs ahead of those of their daughter."
S.O. reported the maternal grandmother and a maternal aunt had substance abuse problems when S.O. was in her teens, and that she had a very difficult childhood and was very insecure as a teenager. She stated the maternal grandmother "was a bad mom. She was selling drugs from the house, heroin, starting in middle school." S.O. had received SSI (Supplemental Security Income) from 2002 to 2006 due to anxiety and depression. She was very depressed about E.Q.'s removal from her custody.
C.Q. reported he graduated from San Diego State University in 2010 and was currently working as a security guard. When asked about a family court order that he undergo a substance abuse assessment, C.Q. stated the court ordered the assessment because of name calling and that " '[t]he Court said it, so now I have to go.' " He stated he had a medical marijuana card a year ago and occasionally drank alcohol socially, but denied any other drug use. The social worker asked C.Q. why he had failed to complete the substance abuse assessment in the year following the family court order and C.Q. stated, " '[E.Q.] was with her mother, she was fine. I didn't need to do anything.' " C.Q. had not yet entered a substance abuse treatment program and he denied domestic violence and substance abuse.
In the report, the Agency stated that both S.O. and C.Q. had "been defensive during their interviews and focused on their own needs for visitation and validation rather than prioritizing [E.Q.'s] needs for safety and well[-]being." The social worker and the maternal grandparents were concerned that if E.Q. were returned to the parents, they would continue to expose her "to yelling, hitting, punching, and choking[,] which could cause her to be scared as well as damage her developing brain." The Agency concluded both C.Q. and S.O. presented "as having some sort of mental health disorder or mental health issues[,]" and recommended they both participate in a psychological evaluation.
The Agency also noted that S.O. and the maternal grandmother had struggled in their relationship. S.O. believed the maternal grandmother wanted to keep E.Q. from her, and the maternal grandmother felt that S.O. did not focus on E.Q. during her visits. The Agency concluded it was not in E.Q.'s best interests to continue visiting S.O. in the maternal grandmother's home and referred S.O. to a visitation center for future visits. The maternal grandmother reported that visits between E.Q. and C.Q. were going fine and that C.Q. played with E.Q. during the entirety of visits.
At the jurisdiction/disposition hearing in November 2013, S.O. and C.Q. both submitted on the petition on the basis of the social worker's reports, and the court sustained and made a true finding on the petition. The court declared E.Q. a dependent of the court, removed her from parental custody, and continued her placement with a relative (the maternal grandparents). The court ordered supervised visitation for S.O. and C.Q. and gave the social worker discretion to allow unsupervised and overnight visits with notice to minor's counsel. The court ordered both S.O. and C.Q. to undergo a psychological evaluation.
In its report filed in May 2014 for the six-month review hearing, the Agency noted both C.Q. and S.O. had maintained a positive relationship with E.Q. and were having supervised visits with her in the maternal grandparents' home. In April 2014, S.O. informed the Agency she and C.Q. were living together again in a new apartment. In October 2013, S.O. vacated the 2012 restraining order protecting her from C.Q.
S.O. began participating in individual therapy in April 2013. Her therapist reported S.O. had addressed many of the objectives of her case plan, but had not addressed certain objectives, including anger management techniques and strategies to use in handling emotional stressors and conflict situations. After January 30, 2014, S.O. stopped attending therapy because she did not think the therapy was helping her. She resumed her therapy in May 2014.
S.O. completed a domestic violence treatment program in January 2014 after attending 26 sessions. Her facilitator reported she "was at expectation for participation, attitude and homework."
S.O. underwent a psychological evaluation in January 2014. The psychologist who performed the evaluation reported S.O. had a lot of unresolved anger toward the maternal grandmother as a result of neglect and abuse in her childhood due to the maternal grandmother's substance abuse. Although S.O. had completed the domestic violence program, she did not seem to be able to control herself to apply what she had learned in the program. A lot of her anger appeared to be an attempt to bully the maternal grandmother and others to get what she wanted, and she appeared to use childhood techniques to manipulate the maternal grandmother and others. S.O. had not internalized what she had learned in the domestic violence program or developed control of her behavior to avoid such conflict.
The psychologist concluded S.O.'s long-standing mental health diagnosis adversely impacted her ability to parent appropriately, noting that despite services and interventions, S.O. repeatedly exposed E.Q. to domestic violence in all of her relationships. S.O. showed little insight into her problems and little motivation to participate in services.
C.Q. was enrolled in a substance abuse treatment program and had been tested for drug use five times since entering the program. All of his tests were negative. His attendance was good and he was participating in the program. He had not yet started a domestic violence program but was attending an anger management class. He completed a psychological evaluation in February 2014. The psychologist told the social worker C.Q. would benefit from at least 12 months of domestic violence education and also needed parenting education.
Both parents had maintained regular visitation with E.Q. C.Q. had weekly supervised visits that consisted mostly of him playing with E.Q. and sharing a meal with the family. He often had to be prompted to change E.Q.'s diaper or attend to her other needs. S.O. had supervised visits at a visitation center between November 2013 and April 2014. The visitation monitor reported that S.O. needed help with demonstrating a parental role and redirecting E.Q. when E.Q. was not listening.
S.O. denied the need for ongoing therapy or mental health medication, and C.Q. continued to deny any domestic violence between him and S.O. or the need for domestic violence education. S.O. reported that in March 2014, C.Q. raised his voice in a grocery store and told S.O. she would be sorry if she ever cursed around him. She described C.Q. as an "evil violent guy," but called him the next day and asked him to come over because she was so depressed she thought she was going to kill herself.
The Agency was highly concerned for the safety and well-being of E.Q. should she be returned to parental custody because of the history of domestic violence between C.Q. and S.O., S.O.'s relationships with others, C.Q.'s being untreated for domestic violence, and S.O.'s lack of insight into domestic violence after completing a 26-week course. The Agency recommended E.Q. remain placed with the maternal grandparents and the court terminate S.O.'s and C.Q.'s reunification services and set a section 366.26 hearing.
At the six-month review hearing in July 2014, the court found that returning E.Q. to the parents would create a substantial risk of detriment to her safety, protection, and emotional well-being. However, the court denied the Agency's request to terminate reunification services, stating it did "not find by clear and convincing evidence that the parents [had] failed to participate regularly and make substantive progress in [their] court-ordered treatment plan[s]." The court continued reunification services and supervised visitation for S.O. and C.Q. and continued E.Q.'s placement with the maternal grandparents.
The minute order from the six-month review hearing states that the court made its risk-of-detriment finding by a preponderance of the evidence. In its oral ruling at the hearing the court stated its finding was by "by preponderance of the evidence . . . as well as by clear and convincing evidence."
In November 2014, the Agency filed its status review report for the 12-month review hearing. E.Q. was doing well in the maternal grandparents' home and her supervised visitation with C.Q. and S.O. had been going well. S.O. denied her relationship with C.Q. could harm E.Q. and C.Q. continued to deny any domestic violence between him and S.O., stating they had only " 'verbal arguments like any other couple.' "
C.Q. and S.O. later reported to the social worker they were no longer in a relationship. In early October 2014, S.O. moved into a one-bedroom apartment and was working two jobs—as a hairdresser and exotic dancer. C.Q. reported that he continued to attend school and work at night as a security guard. He was participating in substance abuse treatment and reportedly had good attendance. He began a 52-week domestic violence program in September 2014.
Both C.Q. and S.O. reported arguments and altercations had caused greater tension and hostility between them. In August 2014, they engaged in a verbal altercation that resulted in S.O.'s frantically calling the maternal grandmother and asking her to call the police. The maternal grandmother reported the incident to the Agency social worker. The social worker spoke to the parents and reported that "both parents minimized the incident and assured [the social worker] it would not occur again."
In October 2014, S.O. told the maternal grandmother she and C.Q. wanted to be together but the Agency was forcing them to stay apart because of their domestic violence. The Agency referred C.Q. and S.O. to a parenting class, which they attended following their weekly visits with E.Q. S.O. received mixed feedback from the parenting program. She was praised for positive interactions, but she had to be redirected regarding setting limits with E.Q. and tended to give up easily and simply laugh when E.Q. engaged in inappropriate behavior such as yelling and hitting. C.Q. was described as being appropriate and engaging with E.Q.
C.Q. began therapy in August 2014. His therapist reported C.Q. was aware of the protective issue with E.Q. and had admitted there had been altercations between him and S.O. However, C.Q. denied that he ever was physically violent with S.O. Although both parents had participated in their reunification services and reportedly had good attendance and compliance, the Agency was concerned that they continued to minimize the protective issues and engage in domestic violence and unsafe behavior.
At the 12-month review hearing in November 2014, counsel for all parties submitted on the Agency's report. The court found that the parents had not made substantive progress with their case plans and that return of E.Q. to the parents would create a substantial risk of detriment to her physical and emotional well-being. However, the court found the parents had consistently and regularly contacted and visited E.Q., made significant progress in resolving the problems that led to E.Q.'s removal, and there was a substantial probability E.Q. would be returned to the parents by the 18-month date. The court continued E.Q.'s placement with the maternal grandparents and continued the current visitation orders and the parents' reunification services to the 18-month date.
The Agency's report for the 18-month review hearing noted the parents continued to live apart and have supervised visitation with E.Q. Both parents continued to participate in services, including individual therapy, and attend domestic violence classes. The Agency conducted random drug tests on both parents. All of S.O.'s tests had negative results and C.Q. tested positive for marijuana four times. He denied using marijuana and stated he did not understand why he was testing positive.
During a team decision meeting (TDM) the Agency scheduled with the family, S.O. reported she had been involved in an altercation with a new boyfriend named Juan S., whom she had met online. The maternal grandmother was concerned that S.O. continued to bring random men into her life and surround herself with people who had criminal histories and engaged in substance abuse, and that C.Q. continued to minimize his substance abuse problem and was smoking marijuana regularly.
S.O. completed her parenting education program in December 2014 and received mixed feedback. A program therapist reported concerns about S.O.'s " 'keeping track of [E.Q.]' " The therapist stated it was hard for S.O. to apply the learned techniques in her class with E.Q. and S.O. needed to show improvement in a number of areas, including increasing her level of supervision and being able to set limits. The therapist feared E.Q. would not be safe if left unsupervised with S.O.
C.Q. appeared to be losing interest in his substance abuse treatment program. He tested positive for marijuana four times between December 22, 2014, and March 25, 2015. Throughout the TDM C.Q. displayed bizarre behavior consistent with someone under the influence. The social worker reported C.Q. "blurted out random answers without being asked" and laughed uncontrollably after stating that E.Q. had " 'a 28 trillion IQ.' "
C.Q. had attended 25 weekly classes of a 52-week domestic violence program and completed his parenting education program. He had been visiting E.Q. once per week but did not take advantage of the therapist's offer to facilitate a second weekly visit.
The social worker supervised a visit between E.Q. and S.O. in January 2015. When S.O. texted on her phone for 10 minutes, E.Q. became impatient and urged S.O. to play with her. S.O. finally stopped using her phone when the social worker redirected her to attend to E.Q.'s needs. The maternal grandmother reported that during a supervised visit between S.O. and E.Q. in February 2015, E.Q. was upset when S.O. arrived because she wanted to visit C.Q. and not S.O.
E.Q.'s court appointed special advocate (CASA) reported concern for E.Q.'s safety and well-being after observing a visit with each parent. S.O. appeared " 'off and had a lack of responsiveness to [E.Q.'s] needs.' " E.Q. appeared to be very uncomfortable and screamed at S.O. to " '[g]et away' " and leave her alone. S.O. was unable to communicate with E.Q. and again showed inadequate parenting skills by being on her cell phone half the time during the visit. The CASA described C.Q. as " 'a playmate . . . or a big kid.' " She did not believe he was capable of caring full time for E.Q. and thought E.Q. saw him more as a playmate or equal than a parental figure.
The Agency was concerned that S.O. had made minimal progress in changing her lifestyle and gaining insight into the protective issues. Despite her participation in counseling and domestic violence treatment, she continued to engage in relationships that potentially could cause harm to her and E.Q. and she did not focus on E.Q.'s needs during visitation.
The Agency reported C.Q. also continued to show "a tremendous lack of insight into the protective issue." He continued to test positive for marijuana and deny any responsibility for domestic violence. He was more of a playmate than a parent to E.Q. and had not asked for more than one weekly visit with her nor wanted to call her. The Agency concluded there would be detriment to E.Q. if she were placed with C.Q. or S.O. The Agency recommended the court terminate the parents' reunification services and set a section 366.26 hearing. The CASA agreed with the Agency's recommendation.
In an addendum report filed in May 2015, the Agency reported the maternal grandmother no longer wanted to supervise visits for C.Q. in a visitation center because he had been engaging in bizarre behavior indicating he was under the influence of something. The maternal grandmother reported that during a phone call in March 2015, C.Q. slurred his words and told E.Q. that " 'if you don't tell us when you have to go potty and use your words you will get splinters in your brain. Splinters in your brain are really bad for you so be sure to use your words.' " When the social worker asked C.Q. to undergo another drug test, he yelled profanity and called the social worker a " 'stupid little girl.' " E.Q. told her therapist she was afraid of C.Q. " 'because he laughs at me. I don't like it. He is scary.' "
One of S.O.'s childhood friends told the maternal grandmother S.O. had been threatening to kill the friend with a gun and had begun to associate with a gang member. S.O. told the maternal grandmother she had ended a relationship with a boyfriend named Stephen, whom she described as " 'explosive and mean.' " She was no longer with Stephen because he embarrassed her in public and was always yelling and screaming at the neighbors.
The Agency filed an addendum report in June 2015, noting the maternal grandmother reported C.Q. had been arrested for being under the influence of a controlled substance and obstruction/resistance to an officer. S.O. thought C.Q. was " 'on [c]rystal again[,]' " and stated that he continued " 'to act crazy[,]' " and that he could not " 'control himself and when he gets mad he does not know when to stop.' " S.O. acknowledged C.Q. was not safe to be with but told the maternal grandmother she was considering bailing him out of jail because she felt sorry for him.
Both C.Q. and S.O. set the 18-month review hearing for trial on requests for unsupervised visitation and the issues of reasonable services and return of E.Q. At the contested hearing on June 25, 2015, the court admitted the Agency's 12-month and 18-month review reports and the addendum reports following those reports. The court also heard testimony from an Agency social worker and the maternal grandmother. After hearing closing argument, the court found that return of E.Q. to C.Q. would create a substantial risk of detriment to E.Q.'s safety, protection, and physical and emotional well-being, based mainly on evidence that C.Q. had failed to fully understand "the [principles] and protective issues to prevent domestic violence," and had failed to acknowledge and overcome his substance abuse. The court also noted the evidence of C.Q.'s recent pattern of "very erratic and unstable behavior . . . in his interactions with family members, as well as the child welfare officials, and others[,]" and inferred "from those incidences that there's a risk of a fairly serious mental health issue that would [affect E.Q.], should she be returned to him."
Judge Donal B. Donnelly presided over the 18-month review hearing. Judge Kimberlee Lagotta presided over the six- and 12-month review hearings and the section 366.26 hearing.
The court found that S.O. had substantially completed all of the counseling, therapy, and education services provided to her. The court stated it was "also prepared to find that [S.O.] has acknowledged and taken responsibility for her role in preventing domestic violence within the family home. I believe she has gained insight into issues that could cause domestic violence." The court concluded S.O. had learned in her classes to step away from violence or threats of violence, stating, "So that was a significant issue in this case, and a very delicate one, but I find . . . in [S.O.'s] favor on that."
Notwithstanding those findings, the court found by a preponderance of the evidence that returning E.Q. to S.O.'s custody would create a substantial risk of detriment to E.Q.'s safety, protection, and physical and emotional well-being, based on the lack of evidence that S.O. had requested an increase in her supervised visitation during the preceding six-month period. The court stated: "Although there's evidence that [S.O.] communicated with the grandmother about making up visits or having some periodic additional visits, what I find compelling is that, at this stage of the reunification process, one would expect a parent [who] seeks to reunify before this final [stage] would have made an effort to actually increase her basic level of visitation with the child."
The court also noted the record reflected that S.O.'s visitation remained at two supervised visits per week and observed: "There's no evidence that [S.O.] asked for increased [visitation to] three or four times a week, every day after school, or after [E.Q.'s] daily activities. Nothing about weekend requests, other than, apparently, there was at least some attempt at that, but not regular weekends, and no evidence that she ever sought or requested or fought for or advocated to obtain overnight visits."
Based on S.O.'s failure to seek more visitation, the court inferred "a lack of a genuine and committed interest in motivation to more fully interact with [E.Q.] to prove to the [Agency] and the court that [E.Q.] could safely be with [S.O.] so as to demonstrate that there would, in fact, not be a substantial risk of detriment to . . . [E.Q.]" The court explained that placing E.Q. "with [S.O.] in [S.O.'s] Chula Vista apartment, without any previous history in the last six months of a safe and careful and protective environment, is too great a risk at this stage."
The court terminated both parents' reunification services and set a section 366.26 hearing. On July 2, 2015, S.O.'s counsel filed a notice of intention to file a writ petition challenging the order setting the section 366.26 hearing. This court dismissed S.O.'s writ case on September 11, 2015, because no timely petition for writ relief had been filed on her behalf.
C.Q.'s counsel also filed a notice of intent to file a writ petition challenging the order setting the section 366.26 hearing. This court dismissed C.Q.'s writ case after his counsel notified the court that a writ petition would not be filed because there were no viable issues for writ review.
Social worker Maychao Moua prepared the Agency's report for the section 366.26 hearing. Moua reported that E.Q. had a happy disposition and seemed to be thriving under the care of the maternal grandparents. She continuously sought her caregivers to meet her needs, both emotionally and physically. The maternal grandparents were willing to adopt E.Q. and give her a permanent home.
Moua observed the first visit between C.Q. and E.Q. after C.Q.'s release from incarceration. The maternal grandmother told the social worker that E.Q. had displayed anxiety about visiting C.Q. and said she did not want to visit him, and she had cried when C.Q. arrived at the visit, but willingly went to his arms after she calmed down. E.Q. seemed to enjoy the visit but left C.Q. without difficulty when it ended. When Moua met with C.Q. to discuss the next visit, C.Q. told her he was going to take care of the terrorist group ISIS for the government. C.Q. was attentive and engaging with E.Q. during four subsequent visits that Moua supervised. However, at the end of the last of those visits, E.Q. refused a kiss from C.Q. by turning her face away.
Moua also supervised several visits between S.O. and E.Q. When Moua arrived at the first visit, S.O. was sitting away from E.Q. and the maternal grandmother and used her phone for about 15 minutes. The maternal grandmother prompted S.O. several times to engage with E.Q. during the visit. S.O. asked E.Q. for a hug and kiss at the end of the visit but E.Q. turned away and refused to comply. During subsequent visits, S.O. occasionally engaged with E.Q., but the maternal grandmother sometimes had to prompt her to play with E.Q. During one visit E.Q. cried when she tried to get S.O.'s attention to take her to the restroom and S.O. ignored her. During the first part of the next visit E.Q. told S.O. to " 'get away from me[,]' " and S.O. told Moua that E.Q. wanted her (S.O.) to go away.
Moua reported that although it was apparent C.Q. and S.O. loved E.Q. and E.Q. enjoyed visiting them, E.Q. had also refused affection from them and did not display distress in separating from them after visits. Moua stated that the "relationships between [C.Q.], [S.O.], and [E.Q.] cannot be described as [a] beneficial parent-child relationship[,]" and "[i]t would not be detrimental for [E.Q.] if [C.Q. and S.O.'s] parental rights were terminated." The Agency recommended termination of parental rights and adoption as E.Q.'s permanent plan. The CASA filed a report agreeing with the Agency's assessment and recommendation.
On November 30, 2015, the maternal grandmother informed Moua that S.O. had harassed the maternal grandparents because they would not agree to legal guardianship of E.Q. instead of adoption. S.O. was also upset that she was not allowed to go to the maternal grandparents' home to visit E.Q. The maternal grandparents put the Agency on notice they were no longer willing to supervise S.O.'s visits because of her behavior. On November 30, 2015, the court granted the maternal grandparents' request for de facto parent status.
At a special hearing in December 2015, the court granted the maternal grandparents' request for a temporary restraining order prohibiting S.O. from contacting them. On January 12, 2016, the court issued a restraining order protecting the maternal grandparents from contact by S.O. for one year, based primarily on threatening text messages S.O. had sent the maternal grandmother.
Moua filed an addendum report on January 22, 2016, noting S.O. had asked the Agency for an additional visit with E.Q. in December and the Agency had been providing her the additional visit at the Child Welfare Office. Moua reported that during visits in December 2015, S.O. was more interactive with E.Q., but E.Q. was not receptive to S.O.'s directives. When S.O. arrived to a visit in January 2016, E.Q. did not acknowledge her until she pulled out a gift. On January 7, 2015, the maternal grandmother sent Moua a video in which E.Q. was upset and crying and saying she did not want to visit S.O.
Moua supervised two visits between C.Q. and E.Q. in January 2016, during which C.Q. was appropriate and attentive toward E.Q. At the second visit, C.Q. initially argued with CWS staff about their not checking his identification, apparently viewing that omission as lax security. Moua reported that although the parents' visitation had been appropriate and the parents had been more engaging with E.Q., "the relationship between parent and child is still absent in the sense that [E.Q.] does not show any distress when separating from her parents after the visits, and sometimes [E.Q.] does not acknowledge either parent at the beginning of the visits."
At the section 366.26 hearing on February 2, 2016, the court received in evidence the Agency's report for the hearing and subsequent addendum reports, and Moua's curriculum vitae. Moua, C.Q. and S.O. testified at the hearing. After hearing argument from counsel, the court found by clear and convincing evidence that it was likely E.Q. would be adopted and that none of the exceptions set forth in section 366.26, subdivision (c)(1)(B) applied. The court specifically found that although it was clear that S.O. and C.Q. loved E.Q. and she called them "Mommy" and "Daddy," "the parents' role is more akin to a family friend who visits [E.Q.], but is not in a position of [a] parent, nor is there a parent bond between mother, father, and this child." The court found "by clear and convincing evidence that neither parent has a bond with [E.Q.] which would outweigh the benefits of adoption, nor would or does the parent bond make termination of parental rights detrimental to [E.Q.]" The court selected adoption as E.Q.'s permanent plan, terminated parental rights, and referred E.Q. to the Agency for adoptive placement. The court granted the maternal grandparents' request that they be designated prospective adoptive parents.
DISCUSSION
The de facto parents (maternal grandparents) filed a letter joining in the Agency's respondent's brief with an attached declaration of the de facto mother. S.O., in her reply brief, requests that we strike the declaration and the portions of the joinder letter discussing the declaration under California Rules of Court, rule 8.204(e)(2)(B), on the ground the declaration constitutes evidence outside the record. We deny the request to strike but disregard the declaration and discussion of the declaration. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
I. Due Process
S.O. contends the juvenile court violated her right to due process by terminating her parental rights based on her failure to ask often or persistently enough for additional visits with E.Q. rather than on clear and convincing evidence of parental unfitness. She complains that at the 18-month review hearing, the court based its finding that returning E.Q. to her custody would be detrimental to E.Q. solely on its view that she had not tried hard enough to obtain more or unsupervised visitation. She argues that the termination of her parental rights was based on this unsupported finding of detriment and, therefore, violated her fundamental due process right to the care and custody of E.Q.
Natural parents have a "fundamental liberty interest . . . in the care, custody, and management of their child . . . ." (Santosky v. Kramer (1982) 455 U.S. 745, 753.) Consequently, due process requires proof of parental unfitness by clear and convincing evidence before the state may terminate parental rights to a child. (Id. at p. 769.) However, "a finding of parental unfitness is not necessarily required at the point when parental rights are terminated. In a dependency proceeding, due process is satisfied if unfitness is established at an earlier stage, and parental rights terminated later based on the child's best interest." (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1134.)
"By the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer 'reason to believe that positive, nurturing parent-child relationships exist' [citation] . . . . In light of the earlier judicial determinations that reunification cannot be effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256.) "At this late stage in the process the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must now align itself. Thus the proof by a preponderance standard is sufficient at this point." (Ibid.)
The petition filed on behalf of E.Q. alleged that she had suffered or there was a substantial risk that she would suffer serious physical harm or illness as a result of S.O.'s failure or inability to supervise or protect E.Q. adequately, specifying the domestic violence that had occurred between S.O. and C.Q. and between S.O. and her boyfriend, George L. At the jurisdiction/disposition hearing the court sustained and made a true finding on the petition by clear and convincing evidence. The court additionally stated, "I do find by clear and convincing evidence that" E.Q. should be removed from the custody of her parents. At the six-month review hearing the court found that returning E.Q. to the parents would create a substantial risk of detriment to her safety, protection, and emotional well-being. As noted, in its oral ruling at the six-month review hearing, the court stated that its detriment finding was by "by preponderance of the evidence . . . as well as by clear and convincing evidence." (Italics added.) At the 12-month review hearing the court again found, by a preponderance of the evidence, that returning E.Q. to her parents' custody would create a substantial risk of detriment to her safety, protection, and emotional well-being. The court having determined at multiple review hearings before and at the 18-month review hearing that reunification could not be effectuated because returning E.Q. to her parents would create a substantial risk of detriment to her, the court did not violate S.O.'s right to due process when it terminated her parental rights at the section 366.26 hearing. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256.)
Based on the court's comments at the 18-month review hearing, S.O. contends the court improperly rested its detriment finding at that hearing solely on its view that she had not tried hard enough to expand her visitation. We disagree. Before stating its detriment finding, the court (Judge Donnelly) made clear its findings were "[b]ased on the evidence presented, both direct and circumstantial, as well as reasonable inferences that may be drawn from that evaluating the totality of the record, but focusing, especially, on the last six month reunification period . . . ." (Italics added.)
The reports admitted into evidence for the 18-month review hearing presented substantial evidence that S.O. had not sufficiently progressed with her case plan and services to warrant continuation of her reunification services past the 18-month date. The maternal grandmother was concerned that S.O. continued to bring random men into her life and surround herself with people who had criminal histories and engaged in substance abuse. The therapist from her parent education program expressed concern that S.O. had difficulty applying the techniques she was taught with E.Q. and that E.Q. would not be safe if left unsupervised with S.O. Reports of S.O.'s visitation during the period preceding the 18-month review hearing showed a pattern of her not deeply engaging with E.Q. during visits and having to be redirected to attend to E.Q.'s needs. The Agency was concerned that S.O. had made minimal progress to change her lifestyle and had not made substantive progress on her case plan. Shortly before the 18-month review hearing, S.O. told the maternal grandmother that she was considering bailing C.Q. out of jail because she felt sorry for him, even though she acknowledged he was not safe to be with, was likely abusing drugs, and was unable to control himself when he became angry.
Based on this evidence, the court could reasonably view S.O.'s failure to obtain more visitation as a reflection that she prioritized her dysfunctional relationships with men over her relationship with E.Q. and had failed to learn parenting skills from her reunification services, even if she had gained some awareness of certain issues that could cause domestic violence. The reports for the 18-month review hearing evidenced S.O.'s apparent lack of interest in seriously engaging and parenting E.Q. during visits, difficulty applying parenting techniques taught in her parenting classes, and continued poor choices in her relationships with men. S.O.'s lack of progress on these issues largely contributed to the Agency's recommendations that she not be allowed unsupervised visitation.
Judge Donnelly specifically found that S.O. lacked a commitment "to more fully interact with [E.Q.] to prove . . . that [E.Q.] could safely be with her," and that placing E.Q. with her was too great a risk "without any previous history in the last six months of a safe and careful and protective environment." Although Judge Donnelly stated the basis for his detriment finding was S.O.'s failure to expand her visitation, the finding encompassed specific reasons for S.O.'s failure to expand visitation that were supported by substantial evidence and reasonably supported the finding that E.Q. could not be safely returned to S.O. Judge Donnelly's preliminary finding that S.O. had gained insight into domestic violence issues did not preclude him from making a detriment finding based on the status of S.O.'s relationship with E.Q., and it did not conclusively establish that S.O. had completely and finally resolved her domestic violence issues or preclude the court from reevaluating S.O.'s progress with those issues at the time of the section 366.26 hearing.
S.O. argues in her reply brief that under the doctrine of law of the case, the juvenile court was precluded from re-examining those issues at the section 366.26 hearing, citing a federal case for the proposition that a decision on a factual or legal issue must be followed in subsequent trial court proceedings in the same case (Pit River Home and Agr. Co-op. Assn. v. U.S. (9th Cir. 1994) 30 F.3d 1088, 1096-1097). Under California law, the doctrine of law of the case does not apply to trial court rulings; it "applies only to a decision of an appellate court in the same case." (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 489.)
S.O. complains that the court violated her right to due process by terminating her parental rights based on her failure to seek more visitation. S.O. misconstrues the record. The court did not terminate her parental rights based solely on her failure to expand her visitation. At the section 366.26 hearing Judge Lagotta, who had presided over the six-month and 12-month review hearings, reasonably found, in her words, that despite "18 months of services . . . the parents failed to demonstrate appropriate insight into the issues that brought them before this court. And I'm not going to go back and relitigate that. It's throughout the reports . . . that are before the court and admitted into evidence. [¶] There has simply been a complete lack of demonstrated insight into the issues that brought [E.Q.] before the court. And because the parents were unable to do that, the visits never expanded beyond supervised. And so it's not that the parents were not in a position to establish a parent/child bond. It was because the parents failed to demonstrate insight into the issues that brought [E.Q.] and the parents before the court, which put the parents in a position that they were not able to expand [their] visits to unsupervised visits and to generate a stronger parent bond, because they weren't in a position to safely parent [E.Q.] and, certainly, were not in a position, as a result, to have unsupervised visits with [E.Q.]" Accordingly, the court found by clear and convincing evidence that neither parent had a bond with E.Q. that would outweigh the benefits of adoption or make termination of parental rights detrimental to E.Q.
To the extent Judge Lagotta's findings supporting the decision to terminate parental rights were contrary to Judge Donnelly's findings at the 18-month review hearing regarding S.O.'s insight into domestic violence issues, Judge Lagotta was entitled to reassess S.O.'s overall progress in meeting the goals of her case plan at the section 366.26 hearing. The most recent reports concerning her progress and the testimony at the hearing indicated S.O. continued to struggle with domestic violence issues, as evidenced by the restraining order issued against her after the 18-month review hearing. The court did not terminate S.O.'s parental rights solely based on her failure to seek more visitation and did not violate her right to due process in terminating her parental rights for the reasons it stated at the section 366.26 hearing.
II. Beneficial Parent-Child Relationship Exception
S.O. and C.Q. both contend the court erred in finding that there was not a beneficial parent-child relationship between them and E.Q. within the meaning of section 366.26, subdivision (c)(1)(B)(i) that precluded the termination of their parental rights. " 'At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.' [Citation.] '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). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ' " (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
This court has interpreted "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 (Autumn H.).)
"A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence. [Citation.] It is not enough to show that the parent and child have a friendly and loving relationship. [Citation.] ' "Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . ." ' [Citation.] For the exception to apply, 'a parental relationship is necessary[.]' [Citation.] ' "While friendships are important, a child needs at least one parent. 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." [Citation.]' " (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.).)
Appellate courts have applied different standards of review to the parent-child beneficial relationship exception. (See In re K.P. (2012) 203 Cal.App.4th 614, 621.) Most courts initially applied the substantial evidence standard. (See ibid.; J.C., supra, 226 Cal.App.4th at p. 530.) However, this court has applied a "hybrid standard," under which "[w]e apply 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.) We will apply the hybrid standard.
Division Three of this District also recently applied the hybrid standard. (See J.C., supra, 226 Cal.App.4th at p. 531.)
As a practical matter, the analysis is essentially the same under either standard of review. As noted above, " '[e]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order [under review].' . . ." ' " (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) --------
We conclude that neither S.O. nor C.Q. has met the burden of showing the juvenile court abused its discretion in determining that termination of parental rights would not be detrimental to E.Q. In the review period between the 12-month and 18-month review hearings, C.Q.'s parenting education program therapist encouraged him to demonstrate a more parental role with E.Q. and not only be a "play mate" to her. C.Q. did not take advantage of the therapist's offer to facilitate a second weekly visit with E.Q. When the Agency social worker reminded C.Q. that the maternal grandmother had offered to supervise more visits between him and E.Q., his response was that he had simply forgotten to call the maternal grandmother to request more visits. The CASA described C.Q. as " 'a playmate . . . or a big kid,' " and thought E.Q. saw him more as a playmate or equal than a parental figure.
The Agency also reported that C.Q. was more of a playmate than a parent to E.Q. and was unsure about his ability to care for E.Q. He had not asked for more than one weekly visit with her and had not wanted to call her. The maternal grandmother wanted to discontinue supervising visits with C.Q. because he had been engaging in bizarre behavior indicating he was under the influence of drugs. Noting C.Q.'s "tremendous lack of insight into the protective issue" and his continual denial of any responsibility for domestic violence, the Agency concluded placing E.Q. with C.Q. or S.O. would be detrimental to E.Q.
During the same review period, S.O. often had to be directed to attend to E.Q.'s needs and engage with her during visits instead of texting and talking on her cell phone. She did not focus on E.Q.'s needs during visitation and the visitation monitors had noted safety concerns. The CASA reported that S.O. appeared " 'off and had a lack of responsiveness to [E.Q.'s] needs,' " and that E.Q. appeared to be very uncomfortable and wanted to leave the visit. The Agency was concerned that S.O. continued to show lack of judgment and insight into the protective issues by engaging in relationships that potentially could cause harm to her and E.Q.
Between the 18-month review hearing and the section 366.26 hearing, E.Q. on one occasion displayed anxiety about visiting C.Q. and said she did not want to visit him. She cried when C.Q. arrived at the visit, although she willingly went to his arms after she calmed down. At the end of the last visit with C.Q. that Moua supervised, E.Q. refused a kiss from him by turning her face away.
During visits Moua supervised between S.O. and E.Q., S.O. sometimes ignored E.Q. and had to be prompted to engage with her. S.O. had difficulty following through with directives and setting limits with E.Q., and E.Q. sometimes refused affection from S.O. Moua's assessment was that although the parents' visitation had been appropriate and they had been more engaging with E.Q., "the relationship between parent and child is still absent in the sense that [E.Q.] does not show any distress when separating from her parents after the visits, and sometimes [E.Q.] does not acknowledge either parent at the beginning of the visits."
At the section 366.26 hearing, Moua testified regarding her observation and supervision of visits between both parents and E.Q. E.Q. ignored S.O. and C.Q. during visits three or four times as to each parent and separated easily from them. After the visits she sought out her caregivers. Moua testified: "[T]he caregivers are her family . . . . She's been with them for pretty much her whole life and . . . these are the people that she looks to to have her needs met." Moua did not observe a parent-child relationship between S.O. and E.Q. The relationship of both parents with E.Q. was more like that of a family friend and E.Q. did not look to either parent to provide for her primary needs. The parents' visits had never progressed to unsupervised because neither parent asked for extended visits. The Agency offered C.Q. extended visits at one point but he did not act on the offer.
Moua opined that it would be more beneficial for E.Q. to be adopted and there would be no detriment to E.Q. in terminating parental rights, stating, "[T]here's no parent-child relationship there. And I don't see a bond there. And I think it's because she has been with these caregivers [since] she was just a few months old. So these are the only parents that she's known." Based on her observations of E.Q.'s interactions with the maternal grandparents, Moua believed there was a parental bond between them and E.Q. The court was entitled to find Moua's opinions credible and to give great weight to her assessment. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
As noted, to overcome the preference for adoption and preclude termination of parental rights at a permanency plan hearing, the evidence must support a finding that "severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed . . . ." (Autumn H., supra, 27 Cal.App.4th at p. 575, italics added.) Although S.O. and C.Q. argue that E.Q. would benefit from continuing a parent-child relationship with them, they do not cite any evidence in the record that E.Q. would be greatly harmed by termination of their parental rights. The court in effect found that E.Q. would not be greatly harmed by severance of her natural parent-child relationships with S.O. and C.Q. in finding neither parent had a bond with E.Q. that "would outweigh the benefits of adoption, nor would or does the parent bond make termination of parental rights detrimental to [E.Q.]"
Given the evidence of S.O.'s failure to sufficiently address her domestic violence issues; C.Q.'s lack of insight into the protective issues and denial of any responsibility for domestic violence; the evidence of the lack of a parental bond between E.Q. and either parent; and the evidence that E.Q. was thriving in the care of the maternal grandparents, who essentially were the only parental figures she had ever known, the court could reasonably find that E.Q. would not be greatly harmed by the termination of S.O. and C.Q.'s parental rights. Even assuming the evidence showed the existence of parent-child relationships between C.Q., S.O. and E.Q. that provided some benefit to E.Q., we conclude the juvenile court reasonably found that the benefits of adoption greatly outweighed any detriment that severance of those relationships might cause her. The court did not abuse its discretion in determining that neither S.O. nor C.Q. had a beneficial parent-child relationship with E.Q. within the meaning of section 366.26, subdivision (c)(1)(B)(i) that precluded the termination of parental rights.
DISPOSITION
The order terminating parental rights and selecting adoption as the permanent plan for E.Q. is affirmed.
/s/_________
HALLER, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
AARON, J.