Opinion
C088916
01-14-2020
In re K.H., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. D.C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-JV-DP-2017-0000042)
Appellants D.C. (mother) and Ko.H. (father) appeal from the juvenile court's order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) They contend reversal is required because the social worker failed to discuss the permanency issue with the five-year-old minor and, therefore, the juvenile court failed to consider the minor's wishes in making its permanency decision. They also contend the juvenile court erroneously failed to apply the beneficial parental relationship exception to adoption. We will affirm.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2016, the San Joaquin County Human Services Agency (Agency) received a report that the then three-year-old minor (born in Oct. 2013) fractured his right tibia but received no medical attention until six days after the injury despite severe pain. Parents made inconsistent statements about the minor's injury and their failure to obtain medical treatment. Additionally, parents had previously failed to follow a prior order to obtain blood work for the minor's anemia diagnosis. Mother has an extensive history with the Agency, having had her parental rights to the minor's older half siblings terminated in 2012. Mother also has a history of methamphetamine use and parents have a history of domestic violence.
On January 23, 2017, the Agency filed a section 300 petition on behalf of the minor. Although the juvenile court noted the minor was bonded with parents, it ordered the minor detained after finding that continuance in the home created substantial danger to the minor's physical and emotional health. Parents were provided visitation.
The April 2017 jurisdiction/disposition report indicated that parents were "extremely attached and bonded to the minor" and the minor was "also very attached" to parents. The report also indicated that the minor was too young to provide a statement but appeared bonded to his caretakers and was not showing any "mental or emotional symptoms unusual for his age." The social worker also reported that the Agency had separated the parents' visitation following mother's February 2, 2017 report of additional physical abuse by father and her departure from the home. Thereafter, mother visited the minor three days per week, and father visited the minor one day per week.
Mother failed to make substantial progress in her reunification plan and her services were terminated on February 21, 2018. Father, however, progressed in his reunification plan and was approved for overnight visits from Friday through Sunday. The overnight visits began in April 2018, but were terminated in July 2018 after father was arrested for battery and vandalism toward his sister (with whom he was residing) and for driving under the influence. Father's reunification services were thereafter terminated and parents' visits were reduced to weekly one-hour visits.
The section 366.26 hearing took place on February 19, 2019. The social worker reported the minor had been in his current placement since his removal on January 24, 2017. He was reported to be bonded with his foster parents and they were committed to adopting him. They had been meeting all of the minor's emotional, medical and financial needs, the minor referred to them as "mom" and "dad" and considered them to be his family. The minor also got along well with the other children in the home and had bonded with his foster parents' extended family. He was thriving in his placement, doing well in school, and had no concerning mental or emotional issues.
Parents had remained consistent in their visitation and attended weekly one-hour visits. Parents brought activities and appropriate snacks to visits and the visits went well. The minor's foster mother reported that sometimes the minor wanted to leave visits early or did not want to go to visits at all, but he did not "throw a fit" about going and did not demonstrate any issues after visits with parents. The minor was observed to be bonded with the parents, as demonstrated by his communication with them. Parents reported he referred to them as "mommy" and "daddy," and father believed the minor would miss him if parental rights were terminated.
The juvenile court found the minor likely to be adopted, that no exception to adoption applied, and terminated parental rights.
DISCUSSION
I
Consideration of the Minor's Wishes
Parents contend the order terminating parental rights must be reversed because the social worker did not ask the minor directly if he assented to permanent separation from his parents or how he would feel if he never saw them again. Thus, they argue, the juvenile court did not, and could not, properly consider the minor's wishes, as required by statute. We disagree.
Section 366.26, subdivision (h) provides the court must " 'consider the child's wishes to the extent ascertainable' " prior to terminating parental rights. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) But courts have moved away from the early position of In re Diana G. (1992) 10 Cal.App.4th 1468, 1480, that the dependent must be aware that the "proceeding involves the termination of parental rights." (See In re Julian L. (1998) 67 Cal.App.4th 204, 208-209; In re Leo M., at p. 1593.)
"[T]he evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing. ([In re Leo M., supra, 19 Cal.App.4th at p. 1591].) And [father's] assertion the court must specifically ask how the child feels about ending the parental relationship is just plain wrong. As the Leo M. court aptly stated, '[I]n honoring [the minors'] human dignity . . . we should not carelessly impose upon them decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. . . . [W]e conclude that in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.' (Id. at p. 1593, italics added.) [¶] What the court must strive to do is 'to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court.' (In re Leo M., supra, 19 Cal.App.4th at p. 1592.)" (In re Amanda D. (1997) 55 Cal.App.4th 813, 820-821.) Here, the juvenile court had the requisite evidence before it.
Although the social worker believed the minor, at five years old, was "probably" capable of understanding the concepts of adoption and guardianship, she did not want to "push him" by broaching the subject directly. There was, however, a reasonable basis for inferring the minor's wishes.
The social worker observed a bond between the minor and parents, demonstrated by the minor's communication with them. The minor referred to them as "mommy" and "daddy." Visits went well and the parents described their parental bond with the minor as affectionate and close. The minor was asked about his visits with parents and, although he said the visits were "good," there also was evidence the minor sometimes asked to end the visits early and sometimes did not want to visit at all. And there was no evidence that the minor ever asked to visit more frequently, even after visits were reduced to one hour a week, nor is there any evidence in the record that he indicated he missed his parents between visits.
Father testified that the minor's affectionate and close relationship with him continued up through the time of the section 366.26 hearing. Mother testified she and the minor had a close or good relationship "until CPS started." --------
The social worker also observed the minor in his foster home, where he had been placed for over two years and was thriving. The minor was bonded to his foster parents, to whom he referred as "mom" and "dad," and he appeared to be very comfortable in the home. The minor referred to the foster home as "his home" and showed the social worker "his room," and considered his foster parents to be his family. The minor also got along well with the other children in the home and had bonded with his foster parents' extended family.
With this information, the juvenile court could adequately consider the minor's feelings regarding his biological parents, foster/prospective adoptive parents and his current living arrangements. Father argued to the juvenile court that the social worker should have specifically discussed the plan of adoption with the minor and elicited minor's feelings more directly. And he argues here that such a discussion should have elicited the minor's "wishes for permanency and how he would feel if he never saw his [biological] father or mother again." But the juvenile court could reasonably determine that little would be gained from imposing the heavy burden of directly asking the young minor whether he wanted parental rights to be terminated and never to see the parents again, especially in light of the court's ultimate task.
In considering a child's best interests at the section 366.26 hearing, the court may be obligated to consider the child's wishes, but it need not follow the child's wishes unless he or she is 12 years of age or older. (§ 366.26, subds. (c)(1)(B), (h).) Thus, even if the five-year-old minor had definitively expressed a desire for guardianship over adoption so as to maintain continued contact with parents, the juvenile court could properly conclude that doing so may not be in the minor's best interests and nonetheless terminate parental rights. There was sufficient evidence for the court to assess the minor's wishes and best interests. Thus, the parents have not demonstrated reversible error in not eliciting the minor's feelings more directly. (See, e.g., In re Joshua G. (2005) 129 Cal.App.4th 189, 201.)
II
Beneficial Parental Relationship Exception to Adoption
Parents also contend the juvenile court erred by failing to find the beneficial parental relationship exception to adoption applied. We disagree.
It is well settled that at the selection and implementation hearing held pursuant to section 366.26, the permanent plan preferred by the Legislature is adoption. "If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a "compelling reason for determining that termination [of parental rights] would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances justifying an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373; Cal. Rules of Court, rule 5.725(d)(2).)
Termination of parental rights may be detrimental to the minor when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) However, the benefit to the child must promote 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; In re C.F. (2011) 193 Cal.App.4th 549, 555.)
Parents regularly visited the minor, thus meeting the first requirement of the beneficial parental relationship exception. As to the second requirement, the evidence did demonstrate that there was a bond between parents and the minor. But parents failed to show that the minor would benefit so much from continuing the relationship that it would outweigh the benefits of adoption or that he would be greatly harmed by its termination.
To show that the beneficial parental relationship exception applies, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) Even a strong and positive parent-child attachment is insufficient for purposes of this exception if the minor looks to his or her prospective adoptive parents to meet their needs. (In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
Here, as stated ante, the minor was bonded to his foster parents, with whom he had lived for over a third of his young life. He called them "mom" and "dad" and considered them to be family. Their home was "his home." They met all his emotional, medical, and financial needs and he was thriving in their care. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 231; In re Angel B. (2002) 97 Cal.App.4th 454, 467 [child's age, portion of life spent in biological parent's custody, positive and negative effect of interaction between parent and child, and particular needs must be considered in assessing whether a relationship is important and beneficial to child].)
On the other hand, although reported to have a continuing bond with parents, by the time of the permanency hearing, the minor had been out of parents' care and with his foster parents for more than two years and was seeing parents for only one hour per week. He did not have any problems separating or adjusting after those visits and, in fact, sometimes wanted to leave visits early or not visit at all. There was no evidence that the minor ever asked to visit more frequently, even after visits were reduced to one hour per week, did not ask about his parents, nor did he indicate he missed his parents between visits.
Considering the evidence, the juvenile court could properly conclude that any benefit of minor's continuing his relationship with the parents did not outweigh the benefits of a stable and permanent home.
DISPOSITION
The orders of the juvenile court are affirmed.
KRAUSE, J. We concur: MURRAY, Acting P. J. DUARTE, J.