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San Diego Cnty. Health & Human Servs. Agency v. Z.P. (In re Aiden L.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 31, 2019
No. D076001 (Cal. Ct. App. Oct. 31, 2019)

Opinion

D076001

10-31-2019

In re AIDEN L. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Z.P. et al., Defendants and Appellants.

Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Z.P. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ4250C-D) APPEALS from orders of the Superior Court of San Diego County, Margie G. Woods, Judge. Affirmed. Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant Z.P. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant C.M. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent

Z.P. (Father) and C.M. (Mother) appeal from orders of the juvenile court terminating their parental rights to their minor children Aiden L. and A.L. Father contends the juvenile court erred by finding the beneficial parental relationship exception set forth in Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude the termination of his parental rights. Mother joins in Father's arguments and asserts the juvenile court's error also resulted in the termination of her parental rights. We reject Father's contentions, find Mother's appeal has no merit in light of that rejection, and affirm the orders.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

I

FACTUAL AND PROCEDURAL BACKGROUND

Abuse of A.L.

In February 2018, Mother took then-two-month-old A.L. to the emergency room. Hospital staff observed bruising on A.L.'s legs, stomach, and face, and a more extensive examination revealed 21 fractures in various stages of healing throughout her body, as well as abrasions and bruises on her throat, thighs, and vaginal area. The injuries to her throat were so severe that she could not swallow and had to receive nutrition through an IV. Several of the fractures were high-impact injuries often associated with physical abuse and the throat abrasions were consistent with someone forcibly thrusting an object into A.L.'s throat. Child abuse expert, Suzanne Starling, M.D., concluded the totality of injuries suggested ongoing abuse and the hospital made a referral to the San Diego County Health and Human Services Agency (the Agency).

The Agency spoke with Mother and Father at the hospital. They confirmed they were A.L.'s only caretakers but could not provide any explanation for her injuries. Mother described A.L. as a happy baby. She said A.L. was born with medical issues and noted her nephew had been diagnosed with leukemia after sustaining bruises. Father said he had asked Mother about the bruises, but Mother told him she did not know what had happened. Mother admitted to testing positive for marijuana when Aiden was born, approximately one year earlier, but claimed she had not used drugs since that time.

The Agency also spoke to A.L.'s half siblings, then-five and three years old. Both children indicated that Mother hit them with a brush and Father hit them with a belt. The five year old told the social worker that Father sometimes hits Mother, and she had recently seen Father grab, push, and hit A.L. The parents agreed to place the older siblings, including Aiden, with family members while the Agency continued to investigate. A.L. remained hospitalized.

The two half siblings are not at issue in this appeal. Accordingly, they are mentioned only to the extent relevant to the proceedings involving Aiden and A.L.

The Agency spoke with the maternal grandmother the next day. She indicated A.L. was "stiff and crying," like she was in a lot of pain, whenever she was awake. She had previously seen bruising on A.L.'s face and said, "[t]he bruises come and go." She said Father was violent and had physically injured Mother in the past, but Mother refused to press charges. She also said Mother told her that Father had "spanked" A.L. when she cried.

Initiation of Juvenile Dependency Proceedings

The Agency filed juvenile dependency petitions on behalf of Aiden and A.L. on February 28, 2018. The Agency alleged both children were at risk of severe physical abuse due to the extensive injuries A.L. had sustained while in the care of Mother and Father. The juvenile court found the Agency had made a prima facie showing on the petitions and detained the children. The court granted both parents liberal supervised visitation.

Thereafter, the Agency made several attempts to interview the parents, but they refused, stating their counsel had advised them not to give any statements in light of the potential for criminal charges. They did, however, participate in a child and family team meeting in early March 2018. Aiden attended the meeting and the social worker noted he interacted well with both parents.

Mother and Father visited A.L. in the hospital. The foster mother supervised. She noted Father was emotional during the visits and whispered, "I'm sorry" to A.L. Mother, on the other hand, was cordial but unemotional. At one visit, the foster mother told Mother it would be uncomfortable for A.L. to be held in an upright burping position due to her injuries, but Mother proceeded to hold A.L. in that position anyway. A.L. immediately began to scream and cry and the hospital social worker ended the visit.

A.L. was discharged from the hospital in mid-March 2018. She had an NG tube for nutrition as she was still unable to swallow and required extensive follow-up care. Aiden and the two other siblings had been placed in the care of the maternal grandfather, but it was not feasible to place A.L. with him due to her unique medical needs. Accordingly, she was placed with a licensed foster family approved to care for medically fragile children.

The maternal grandfather reported that the older children told him Father hit the baby when she cried. He indicated Father previously struggled with alcohol and drugs, and also stated he was aware of at least one incident in which Mother passed out from drinking, leaving A.L. alone in Father's care.

The Agency referred both parents to a child abuse treatment program. Father promptly began attending the program, but Mother did not respond to telephone calls regarding the referral. When she did schedule an intake appointment, she arrived late, and the treatment provider asked the Agency to refer Mother to a different provider.

Visits and Interviews in June and July

An Agency social worker observed several more visits between the parents and A.L. in June and July. The social worker indicated both parents consistently demonstrated a parental role, demonstrated knowledge of child development, and put A.L.'s needs ahead of their own. However, he noted that he could not adequately assess A.L.'s reactions to or interactions with the parents given her age. Father canceled one visit in late June due to transportation issues.

On July 25, 2018, Mother agreed to speak with an Agency social worker. She indicated she had seen bruises on A.L.'s body while in her care and that she had been concerned A.L. was anemic. Mother said she would never injure any of her children but maintained that she and Father were the only caregivers for A.L. Mother admitted using marijuana and alcohol, and stated she had blacked out while A.L. was in her care on at least two occasions, once while Father was not home. She suggested it was possible she had unintentionally hurt A.L. while blacked out.

In addition, Mother told the social worker that she often left A.L. in a glider that was accessible to the other children and that she had seen them hit and throw things at A.L. She caught Aiden sticking a chicken bone next to A.L.'s neck and one of the other children tried to put candy in A.L.'s mouth. However, Mother never felt that it was inappropriate or unsafe to leave A.L. in the glider. She stated that A.L. was "always a happy baby," but also said that she left her in the glider because she was "always crying" and the glider was the only thing that soothed her. Mother thought visits with the children were going well but admitted A.L. sometimes cried hysterically when the parents held her and that she seemed more bonded to the foster mother.

Father also agreed to an interview. Like Mother, he maintained the parents were the only caregivers for A.L. but denied having any knowledge as to how she was injured. He admitted having a history of alcohol abuse, including a recent arrest for driving under the influence and an incident in 2017 in which he dropped Aiden while intoxicated. He said he had a loving relationship with Aiden but that A.L. had not been in his care long enough for him to develop a relationship with her. Father had been attending the child abuse treatment program regularly but said he did not feel like he belonged in the group.

The foster mother reported that A.L. frequently cried and looked to her for assurances during the visits she supervised. She tried to show the parents how to hold A.L. in a way that would not hurt her but said they "just haven't gotten there yet." However, she noted A.L. recently started to fall asleep while Father was holding her. The parents attended the majority of medical appointments, but the foster mother did not think they really comprehended much of what was discussed at the appointments. For example, she said the parents did not seem "phase[d]" when a doctor recently informed them that A.L. might need to be fed through a tube for the rest of her life.

Denial of Reunification Services

The juvenile court held a contested jurisdiction and disposition hearing on August 1, 2018. The Agency recommended the juvenile court deny reunification services for both parents pursuant to section 361.5, subdivision (b)(5) given the severity of the abuse inflicted on A.L. and the parents' continued lack of remorse and unwillingness to accept responsibility.

The court found that it had jurisdiction pursuant to section 300, subdivisions (e) and (j), respectively, and that the extent of the progress made by either parent in mitigating the causes necessitating placement of the children outside their care had been minimal. It therefore ordered, pursuant to section 361.5, subdivision (b)(6), that neither Mother nor Father receive reunification services. The court ordered that a section 366.36 permanency hearing be set within 120 days and granted both parents reasonable supervised visitation in the interim.

Both parents filed notice of their intent to file a writ petition, but the attorneys subsequently notified this court that the petitions would not be filed as there were no viable issues for writ review.

A.L. was moved to a new foster home in late September 2018. She was familiar with the new foster parents as they had previously provided respite care for her. The foster mother worked as a pediatric occupational therapist, specializing in swallowing and weaning children off of gastronomy tubes, and had recently become licensed to accept medically fragile placements. The new foster parents told the Agency they were committed to adopting A.L., and also Aiden in the event that the Agency wanted to keep them together.

Visitation in Late 2018 and Early 2019

The parents continued to have supervised visitation with Aiden a couple of times per week and with A.L. once per week. Aiden's visits were supervised by family members and they reported the visits generally went well, but Father sometimes missed visits due to a lack of communication with Aiden's caregivers. Father also missed several visits with A.L. in August, October, and November. At the visits he did attend, A.L. frequently sought assurances from the caregiver and did not allow Father to pick her up.

In November, the Agency concluded it was unlikely either parent could safely assume a parental role for Aiden or A.L. but requested a 90-day continuance to more fully assess potential placement of A.L. with relatives and to identify the best permanent home for both children. Accordingly, the juvenile court set the section 366.26 hearing for February 26, 2019.

That same month, Father was arrested for driving under the influence, willful cruelty to a child, and felony child cruelty, among other charges. Mother was also charged with felony child abuse.

The parents continued to have supervised visitation with both Aiden and A.L., typically once or twice a week for one to two hours. Mother's visits generally went well but A.L.'s caregiver had to remain in the room to reassure her or A.L. would cry. A.L. had no trouble separating from Mother at the end of visits. A.L. cried during the majority of her visits with Father and generally would not allow Father to pick her up. She often looked to her foster mother for reassurance and would cry if the foster mother left the room.

Termination of Parental Rights

In a report dated February 26, 2019, the Agency concluded a beneficial parent-child relationship did not exist between either parent and Aiden or A.L., and recommended a permanent plan of adoption for both children. Mother and Father disagreed with the recommendation and the juvenile court set the matter for a contested trial in June.

The parents continued to visit with both children in the interim but, in March, Father cancelled the majority of his visits with A.L. In April, he was hospitalized and unable to visit either child. Father resumed visitation in late April. A.L. continued to look to her foster mother for reassurance and refused to allow Father to pick her up. Aiden seemed to enjoy his visits but had no trouble separating from Father at the end of each visit.

At trial, Father argued the beneficial parental relationship exception precluded the termination of his parental rights. The Agency relied on its written reports. Father submitted additional visitation logs into evidence and called the Agency social worker for cross-examination. She agreed Father was generally attentive to A.L.'s needs during his early visits but stated A.L. had more recently become "very stand off-ish" with him. She also agreed Aiden's visits with Father generally went well, but determined there was not a parent-child bond between them based on the entire context of the case and the fact that Aiden was doing well in his placement and had no issue separating from Father at the end of visits.

After reviewing the evidence, the juvenile court found the connection between Father and the children was not sufficient to support a parent-child bond exception to adoption. The court terminated Mother's and Father's parental rights and ordered a permanent plan of adoption for both Aiden and A.L.

Mother and Father appeal.

II

DISCUSSION

A. The Juvenile Court Did Not Err in Concluding the Beneficial Relationship Exception Did Not Preclude the Termination of Father's Parental Rights

Father asserts the juvenile court erred by terminating his parental rights and argues the court should have applied the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i).

1. Applicable Law

Once the juvenile court terminates reunification services in a dependency proceeding, the focus shifts from preserving the family to promoting the best interests of the child, including the child's interest in a stable, permanent placement. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534 (Fernando M.); In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)

At this point, "the juvenile court has three options: (1) to terminate parental rights and order adoption as a long-term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care." (Fernando M., supra, 138 Cal.App.4th at p. 534.) Of those options, adoption is the permanent plan preferred by the Legislature, even though it requires termination of the natural parents' legal rights to the child. (Autumn H., supra, 27 Cal.App.4th at p. 573.) Accordingly, if the juvenile court finds a caregiver is willing and able to adopt the child, the court must select adoption as the permanent plan unless it finds the termination of parental rights would be detrimental to the child under one of the exceptions enumerated in the statute. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); Autumn H., at p. 573.)

Section 366.26, subdivision (c)(1)(B)(i) provides one such exception to the preference for adoption where "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Courts have interpreted this exception as requiring a parent-child relationship that "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 . . . ." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "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." (Ibid.)

A parent claiming the parental relationship exception has the burden of establishing it applies and must prove the child has a significant and positive emotional attachment to the parent. (In re T.S. (2009) 175 Cal.App.4th 1031, 1039 (T.S.); In re C.F. (2011) 193 Cal.App.4th 549, 555 (C.F.).) Because a selection and implementation hearing occurs "after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)

The parent asserting the exception will not meet his or her burden by showing the existence of a "friendly and loving relationship," an emotional bond with the parent, or pleasant, even frequent, visits. (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.); C.F., supra, 193 Cal.App.4th at p. 555; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re L.S. (2014) 230 Cal.App.4th 1183, 1200 ["To avoid termination of parental rights, it is not enough to show that a parent-child bond exists."].) Rather, there must be a parental role in the child's life, resulting in a significant, positive emotional attachment from the child to parent that if severed would result in harm to the child. (C.F., at p. 555; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324; see also J.C., at p. 529 [observing that interaction between a natural parent and child will always confer some incidental benefit to the child and for the exception to apply, " 'a parental relationship is necessary' "].)

We apply a hybrid standard of review on appeal. (J.C., supra, 226 Cal.App.4th at pp. 530-531.) We review the juvenile court's findings regarding the existence of a beneficial parental relationship for substantial evidence and review the juvenile court's determination as to whether there is a compelling reason for concluding the termination of parental rights would be detrimental to the child for an abuse of discretion. (Ibid.; In re Anthony B. (2015) 239 Cal.App.4th 389, 395; see also Jasmine D., supra, 78 Cal.App.4th at p. 1351 [practical difference between pure substantial evidence standard of review and hybrid standard of review is insignificant].)

2. Analysis

Turning first to the visitation requirement of section 366.26, subdivision (c)(1)(B)(i), Father asserts he maintained regular visitation with the children and the juvenile court did not explicitly find that he did not. However, there is no dispute the juvenile court did find that Father did not have a beneficial parental relationship with either child. As the exception requires regular visitation and a beneficial parental relationship, that finding was sufficient to preclude the application of the exception, so long as it was supported by sufficient evidence. (See J.C., supra, 226 Cal.App.4th at pp. 530-531.) We conclude that it was.

In each case, the court must conduct an individualized inquiry into the nature of the parent-child relationship, but the following factors are generally relevant: "(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 (Angel B.); Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)

Here, A.L. was just two months old and Aiden was just over a year old when they were removed from Father's care. When the juvenile court suspended Father's parental rights, the children had been in foster care for over a year. Accordingly, Aiden had spent more than half of his life and A.L. had spent the vast majority of hers outside of Father's care. Moreover, as Father himself admitted, A.L. was not in his care long enough for them to develop a relationship.

We acknowledge that Father did visit with both children throughout the course of the dependency proceedings, and that many of those visits were positive, particularly with respect to Aiden. However, the evidence indicated both children were doing well outside of Father's care and neither had any trouble separating from Father at the end of visits. Moreover, A.L. often expressed anxiety around Father. She would cry during visits, particularly if her foster mother left the room, would look to her foster mother for assurance, and would refuse to let Father pick her up. Father contends A.L. had difficulty with most people, but the record indicates she did not exhibit similar resistance to her caregivers, with whom she was bonded.

By contrast, the benefits of adoption were significant. Both children were healthy, happy, and thriving in stable homes with caregivers to whom they were bonded. With respect to A.L., the Agency noted, "[she] has spent most of her life in the care of people other than her parents. She views her caregivers as her primary parental figures and looks to them for safety and assurance while interacting with her parents during visitation." In addition, Aiden was placed in the care of his maternal grandfather along with his siblings, allowing him to maintain familial relationships.

Father contends the maternal grandfather will not allow him to continue to visit Aiden, but he provides no support for his contention and, in any event, Aiden was secure in his placement and had no trouble separating from Father.

Considering this evidence along with her own observations of Father's interactions with the children, the social worker concluded Father did not have a beneficial parental relationship with either child. The juvenile court was entitled to give significant weight to the social worker's opinion, and it did. (See In re Casey D. (1999) 70 Cal.App.4th 38, 53 (Casey D.).)

Father argues there was evidence of a beneficial parental relationship at least with respect to Aiden as Aiden enjoyed their visits, Father performed parental tasks like cooking and putting Aiden to bed, and Aiden was affectionate toward Father. However, a "friendly and loving relationship" and pleasant visits are not sufficient to trigger the exception. (See, e.g., J.C., supra, 226 Cal.App.4th at p. 529.) Nor is it enough that Father performed general caretaking tasks during those visits. (See Casey D., supra, 70 Cal.App.4th at p. 52.) In any event, Father is essentially asking us to reweigh the evidence and we have no power to do so on appeal. (See id. at pp. 52-53.)

Father also argues he was disadvantaged by the lack of written visitation logs describing his relationship with Aiden, but it was Father's burden to demonstrate the existence of a beneficial parental relationship. (See T.S., supra, 175 Cal.App.4th at p. 1039; C.F., supra, 193 Cal.App.4th at p. 555.) Father could have presented testimony of the family members present during his visits in support of his position, but he did not.

With respect to A.L., Father contends he showed genuine concern for her, was affectionate towards her, and put her needs above his own. As with Aiden, though, these interactions do not establish that A.L. had a positive emotional attachment to Father. (See, e.g., J.C., supra, 226 Cal.App.4th at p. 529; Angel B., supra, 97 Cal.App.4th at p. 467 [emphasizing child's connection to parent].) Father also asserts the social worker's testimony regarding A.L. was unreliable as it was inconsistent with the visitation logs, but the log entries he points to are primarily from early to mid-2018, when A.L. was an infant. As the social worker noted, A.L. was too young to express her feelings toward Father at that time but, as she grew older, she increasingly displayed discomfort around him.

Finally, Father asserts the social worker improperly considered the original circumstances leading to removal in determining whether there was a beneficial parental relationship, and that the juvenile court improperly followed suit. Father presents no authority indicating the circumstances of removal cannot be considered as part of the individualized inquiry the juvenile court must make in each case. (See Autumn H., supra, 27 Cal.App.4th at pp. 575-576 [court must consider many variables in each case].) To the contrary, here, the fact that A.L. was severely abused while in Father's care—along with Father's refusal to take any responsibility for the abuse—certainly had an impact on Father's relationship with the children and, at a minimum, belies his assertion that he genuinely cared for their well-being.

We therefore conclude that substantial evidence supports the juvenile court's findings and that the court did not abuse its discretion in deciding the beneficial parental relationship exception to adoption did not apply. (See J.C., supra, 226 Cal.App.4th at pp. 530-531.) B. The Juvenile Court Did Not Err in Concluding the Beneficial Relationship Exception Did Not Preclude the Termination of Mother's Parental Rights

Mother's appeal is limited to the adoption of the arguments set forth in Father's briefing and the assertion that the juvenile court's error also resulted in the termination of her parental rights. As we have determined that Father's appeal lacks merit, we conclude that Mother's appeal also lacks merit.

Mother asserts for the first time in her reply brief that we must reverse the termination of her parental rights if we reverse the termination of Father's. Since we have not reversed the termination of Father's parental rights, we need not and expressly do not address this assertion.

DISPOSITION

The orders terminating Father's and Mother's parental rights as to Aiden and A.L. are affirmed.

IRION, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Z.P. (In re Aiden L.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 31, 2019
No. D076001 (Cal. Ct. App. Oct. 31, 2019)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Z.P. (In re Aiden L.)

Case Details

Full title:In re AIDEN L. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Oct 31, 2019

Citations

No. D076001 (Cal. Ct. App. Oct. 31, 2019)