Opinion
A148588
01-25-2017
In re Z.M., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY HEALTH & SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, v. P.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J42335)
P.M. (Father) appeals after the juvenile court terminated his parental rights to his four-year-old daughter, Z.M. (Minor). He contends the trial court abused its discretion in denying his request for further reunification services and in declining to apply the beneficial relationship exception to the termination of parental rights. We shall affirm the orders.
I. BACKGROUND
A. Jurisdiction and Disposition
The Solano County Health and Social Services Department, Child Welfare Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 in January 2014 alleging that Father and A.A. (Mother) had failed to protect Minor, who was 21 months old at the time, and left her with no provision for support. According to the detention report, social workers had previously observed that the family's home was unsanitary and infested with cockroaches. On December 4, 2013, a social worker visited the family's house and found moldy food on the floor, cigarette butts and dishes with moldy food throughout the house, steel nails out in the open, discarded bottles, food wrappers, and dirty clothes on the floors, and garbage cans overflowing with dirty diapers and used feminine hygiene pads. The house had a strong smell of urine, molding food, and cigarette smoke. Myriad cockroaches were crawling on the floor and walls of the home and gathering on the corners of the ceiling. There were dead cockroaches throughout the house. The beds of Minor's two maternal half siblings (who were seven and five years of age) had bed bugs crawling on the mattress, and there was a live maggot on one mattress. Minor's diaper smelled of urine and feces. Her hair was greasy, with visible knots, and she had dirt on her face, torso, and limbs. At one point, Minor picked up a cigarette butt and put it in her mouth. Mother told the social worker she and Father cleaned continuously but the children kept making messes. She also indicated she sometimes became overwhelmed with having all three children in her care and that she had been diagnosed with bipolar disorder and depression. Father said that cleaning was primarily Mother's responsibility. He said the landlord had fumigated the apartment but that the cockroaches persisted, and that the home was clean enough to keep the children safe.
All undesignated statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal, and we shall discuss the facts relating to Mother only to the extent they are relevant either to an understanding of the background of this case or to the issues Father raises.
Two days later, the social worker again visited the home and found it to be cleaner. Another visit five days later showed the condition of the home to be again deteriorating and Minor with poor hygiene, wearing an unchanged diaper. The half siblings' father assumed care of them. Mother and Father agreed to keep the home clean, and during the rest of December, the social worker found it cleaner and clear of debris. However, in mid-January 2014, the social worker visited the home and saw it was accumulating garbage and other debris, smelled of urine and cigarette smoke, and was infested with cockroaches. Minor was unkempt, and when the social worker arrived, Mother began changing Minor's diaper and visibly dirty clothes. Mother told the social worker she had been tired and had not had a chance to clean, and that Father had lost his job and had been looking for new work.
On January 22, 2014, the social worker again visited the house and found it in the condition it had been in early December: moldy food was scattered throughout the house in Minor's reach; there was an open bucket of clear liquid on the kitchen floor with mold and dead cockroaches in it; the pantry contained open food containers, live and dead cockroaches, and rotting fruit; the freezer and refrigerator contained live and dead cockroaches; there were loose wires in the living room; garbage and debris were scattered throughout the house; the garbage cans were overflowing; used diapers were on the bathroom floor and bathtub; the bathroom had a litter box with large amounts of animal feces; feces were spread throughout the house; cockroaches were crawling on the floors, walls, and furniture; and the house smelled of urine, cigarette smoke, and molding food. Minor had an unchanged diaper and poor hygiene. Father told the social worker he and Mother had both been cleaning and that the house was safe. Mother and Father were arrested for child endangerment, and Minor was taken into protective custody and placed in a foster home.
The disposition report, filed in March 2014, noted that Mother and Father had agreed to maintain a safe and sanitary home and to participate in parenting classes. Father also agreed to participate in counseling to improve his insight into hazards in the home. Minor's maternal grandmother had called the social worker to say she was concerned that Father had "anger issues" and had physically abused Minor's half brother. Minor's paternal aunt and uncle (Aunt and Uncle), who lived in another state, were interested in being a concurrent placement for Minor.
Both Mother and Father were having supervised visitation with Minor twice a week, and they behaved appropriately.
On March 20, 2014, the juvenile court sustained allegations that Mother and Father had a history of maintaining unsafe and unsanitary living conditions and that Mother suffered from mental health issues that impaired her ability to maintain a safe and sanitary home. Minor remained in foster care, and the court ordered reunification services. B. Six-Month Review
The September 2014 status review report noted that the previous month Mother had been the victim of a physical altercation with Father. According to a police report, Father threw a shoe at Mother, pushed her down the hallway and into the bedroom, held her by pushing her arms against her body, and took her cell phone to keep her from calling 911. The report indicated that two of Mother's other children were present during the incident. When one of them, eight-year-old M.A., tried to go out the back door, Father grabbed her wrist and told her he would "[w]hoop her [a]ss" if she called the police. Father was arrested and charged with false imprisonment (Pen. Code, § 236), spousal battery (Pen. Code, § 243, subd. (e)(1)), and injuring a cell phone to prevent Mother from calling law enforcement (Pen. Code, § 591.5).
The case was later dismissed.
The report noted that since Minor entered foster care, her vocabulary had increased significantly. Her therapist had described her as looking tired and having a flat affect when she began receiving services, but reported that she had become a happy child, had fewer tantrums, and had improved communication skills.
Father had completed a two-month parenting course and was participating in individual counseling. Mother and Father had supervised visits with Minor twice a week. There were many positive interactions, but twice Father had to be told not to frighten Minor by jumping out from behind a door. On one occasion, Minor said she needed to use the restroom; Father asked Mother to take her, but Mother delayed doing so and Minor wet herself. Mother and Father were referred to therapeutic visitation services to improve their parenting skills and help them focus on Minor's needs during visits.
At the September 18, 2014 six-month review hearing, the juvenile court found Mother and Father had made minimal progress toward alleviating the causes necessitating placement, found there was a substantial probability Minor would be returned to Mother and Father within six months, and continued reunification services. C. Twelve-Month Review and Recommendation for Minor's Return
In January 2015, the Department reported that Mother was taking psychiatric medications but was experiencing symptoms of depression. She and Father were participating in therapeutic visitation services. The supervising clinician reported that Father showed basic parenting skills, could recognize when Minor became overwhelmed, and could accept suggestions. Mother and Father had begun having unsupervised visits with Minor three days a week.
The social worker visited the home in October 2014 and found that, with the exception of Minor's room, it was dirty and cluttered, with garbage that needed to be discarded, old food on the kitchen table, and cockroaches. The home was found to be clean on later visits.
At the January 29, 2015 twelve-month review hearing, the juvenile court found Mother and Father had made adequate progress, continued reunification services, authorized unsupervised visitation, and gave the Department discretion to return Minor to her parents with 10 days' notice.
In July 2015, the Department recommended that Minor be returned to the care of Mother and Father, with family maintenance services. Mother had recently been arrested for shoplifting and reported that she had urges to steal things. She was taking medications for her mental health problems and participating in therapy, and she was more able to stay awake and alert during visits. Father had been participating in individual counseling to improve his anger management and coping skills. He and Mother were participating in therapeutic visitation services.
Minor had been having unsupervised overnight visitation with Mother and Father. Since she began having frequent visits with Mother and Father, Minor had been having trouble getting along with other children at her daycare. She had been having a hard time returning to her normal routine at her foster home after unsupervised overnight visits with her parents and had been increasingly defiant at daycare. However, Minor looked forward to visits with her parents and often cried when they ended. Father was nurturing and set firm rules and limits. The Department concluded that Minor could be safely returned home because Mother and Father were participating in services, they had reached out to service providers and their support network for help, and Father could protect Minor.
At the July 2015 eighteen-month hearing, Minor's counsel objected to the Department's recommendation and requested a contested hearing. The court continued reunification services and set a hearing for November 2015. D. Domestic Violence, Interim Review, and Termination of Services
In an interim review report before the November hearing, the Department recommended terminating reunification services and setting a selection and implementation hearing pursuant to section 366.26. In early October 2015, Mother had reported that Father had yelled at her aggressively and snatched Minor from her car seat. When a social worker visited the home, Father told her Mother had spent all of the money in their bank account, that he could not buy food or pay the rent, and that he was frustrated with her. A neighbor had seen Father yelling at Mother while chasing her down the street and yanking Minor from her car seat, as Minor yelled, "no daddy." The next day, Minor's foster mother told the social worker that Minor had a difficult night. Minor told the foster mother that she had a bad day and that Father and Mother were fighting. When Father called, Minor did not want to talk with him. Three days later, the foster mother told the social worker that Minor had said she was scared because her parents were fighting. She also reported that when Minor returned to her care after the incident, she had a "blank stare" and seemed "checked out." Minor was "out of character" for three days. Later in October, the foster mother said that Minor had been "crumbling" for the previous two months, had been having nightmares about violent events, and had been overly sensitive and apologetic. The foster mother also told the Department that Minor had reported that her "daddy yells and screams." After the incident, visits reverted to being supervised.
Mother and Father agreed that their relationship was unhealthy and that Minor was affected by their "yelling and cursing." Mother said she planned to file for divorce. She had obtained a temporary restraining order against Father; in the request, she alleged that Father had chased her from her home and told her to "get the 'fuck' in the house," that he threw a steel toed boot at her head in front of the children, causing a lump in her head, and that he was "high and drunk" and very aggressive. Mother and Father had stated in therapy that Minor's older half brother had placed Minor in the dryer and tried to turn it on, but that Father had stopped him, and that Minor's older half sister had been watching "sexual programs and demonic anime movies" on the Internet, and Minor had access to those movies while in her parents' care.
The foster mother supervised a visit between Minor and Mother at a festival in October 2015 and reported that the visit was "disastrous." Mother had difficulty controlling Minor and "took off" for 30 minutes. On October 20, 2015, during a family team meeting, it was agreed that visits would be limited to one supervised visit a week. At the visits, Father interacted with Minor more than Mother did, and Minor seemed to enjoy their company. During a supervised visit to a pumpkin patch, Father was attentive, paid attention to Minor's cues and needs, and supervised her appropriately.
On October 30, 2015, Father told the social worker Mother had moved out of the house.
The Department asked the court to terminate reunification services and set the matter for a hearing to set a permanent plan pursuant to section 366.26. At the contested hearing on the motion, the social worker who had responded after the October 2015 domestic violence incident testified that it was not safe for Minor to have unsupervised visits with her parents while the incident was being investigated. She had learned that even after Mother said she had moved out of the family home, she sometimes stayed in the home. Minor's foster mother had told the social worker that Minor said she did not want to go to Father's house. Father had told the social worker he had a network of friends who would be able to help him care for Minor.
Another social worker on the case testified that she was concerned that Mother and Father were not truly separated. She did not believe the issues regarding Father's anger and physical violence could be resolved by January 2016. She agreed that during the visits since the domestic violence incident, Father's interactions with Minor had been appropriate, that he had visited regularly, that he had completed all of the classes he had been asked to take during the dependency, including parenting and domestic violence classes, and that he had participated in counseling. Father and Minor appeared to share a strong parental bond, and Father loved Minor.
On December 17, 2015 the juvenile court terminated reunification services to both parents, found the parents had made minimal progress, and set a hearing pursuant to section 366.26. E. Request to Change Order and Section 366.26 Hearing
Father requested that the court change its order terminating reunification services on March 24, 2016. He averred he was separated from Mother and had begun the process of filing for divorce, he had secured housing, he was able to provide for Minor financially, he was visiting with Minor weekly and participating in counseling, and Minor's foster parents were not interested in adopting her.
In March 2016, Minor was moved from her foster home to the home of Aunt and Uncle.
In advance of the section 366.26 hearing, the Department prepared a report in which it recommended that parental rights be terminated and a permanent plan of adoption be approved. Mother had told the Department she would agree to a plan of adoption either with her mother or with paternal relatives as long as she could maintain contact with Minor. Father had told a social worker he was receiving mental health services. He behaved appropriately during supervised visits with Minor. The social worker had received reports that Father was harassing and threatening Aunt, with whom Minor was living; Father's explanation was that he had contacted Aunt to ask a few questions about visiting with Minor.
Minor's foster mother reported that Minor's tendency to bite and bully had decreased when visitation with Mother and Father were reduced and that Minor continued to have a difficult time listening to directions after visits with her parents. She had been having monthly transition visits with Aunt and Uncle, who had been approved for placement and were interested in adopting her. Minor was relaxed and happy in their presence.
The Department reported in May 2016 that Father was living in a one-bedroom home he had purchased, which was overall in habitable condition. Mother had filed for divorce. Father said he and Mother were no longer in a relationship or living together, although Mother sometimes visited him. However, Mother said she had lived with Father on and off between December 2015 and April 2016, and two of her other children and their father reported that Mother lived with Father. The other children's father believed, based on the observations between them, that Mother and Father still had a romantic relationship. He also reported that Minor's half siblings appeared more out of control when they visited Mother and Father and that they said they did not have enough food to eat during the visits.
Father said he was participating in an anger management class and weekly therapy. The service provider told the social worker that Father had had an intake appointment on February 15, 2016, but had missed four out of nine sessions since then. Anger management was being discussed in therapy, but he was not participating in a separate anger management class. The Department acknowledged that Father loved Minor but concluded that he had not demonstrated he could manage his anger and provide a safe home for her.
The hearing on Father's request that the court change its order terminating reunification services took place on May 27, 2016. His therapist testified that anger management had been one of the focuses of their therapy. She believed that Father would need support, continued therapy, and possibly additional services in order to parent Minor safely on his own. Father had told her that on occasion Mother had slept at his home when she needed a place to sleep, but that there was no romantic relationship. During therapy in summer of 2015, Father and Mother had indicated their relationship was tumultuous, involving shouting matches and throwing objects at each other. The therapist agreed that Minor would experience trauma from living in such an environment.
In his testimony at the hearing, Father acknowledged that Mother "occasionally" lived at his home and that he had allowed her to stay there because he did not want the mother of his child to live on the street. He said Mother slept on the couch in the living room and that they were no longer living as husband and wife. He had told a social worker Mother was not living with him because he feared the truth would make it difficult for him to have Minor returned to him, but he said that if Minor were returned to him, he would not allow Mother to live with them. He acknowledged that his relationship with Mother was tumultuous. He understood that he needed more therapy and that Minor could not be returned to his care immediately.
Father testified that Minor recognized him as her father, was excited to see him, ran toward him and hugged him, was loving and attentive to him, and liked his kisses; he said he "put them in her armpit" and "[s]he says that she uses them for later." However, he acknowledged that he had recently become angry when Minor referred to him by his first name during a telephone call. He had no doubts that Aunt and Uncle could care for her properly. He did not object to them having guardianship of Minor but did not want them to adopt her, and he hoped that in the future he might be able to have Minor returned to his care. Father thought that Minor would feel abandoned if he had little or no contact with her.
The juvenile court found there had been no change in circumstances and that it was in Minor's best interest that current orders remain in place. The court therefore denied Father's request to reinstate reunification services.
The court then proceeded with the section 366.26 hearing. The parties stipulated that the relevant evidence from the hearing on Father's petition to change the order terminating reunification services was admissible and that Minor was adoptable.
Minor's foster mother testified that Minor had been in her care from early 2014 to March 2016. During the first part of that time, Minor's behavior after visits with her parents was fine, but after Minor began having longer, unsupervised visits with her parents, her behavior after visits changed. She would appear stressed, become angry, shake, hit and throw things, and kick and hit other children in the home, then go to sleep for 12 hours. Before visits, Minor would often say she did not want to go, and she was sometimes angry with the foster mother after visits and would say that the foster mother "made her go there." Minor said Mother and Father yelled at each other and were "cranky." When unsupervised visits were halted after the October 2015 domestic violence incident, Minor's behavior quickly improved and she became calmer and more content.
Minor moved to live with Aunt and Uncle about nine weeks before the hearing. She had been back to California to visit the foster mother twice since then. On the most recent visit, Minor was calmer than she had been, she called Aunt "mommy," and the foster mother could tell they had a bond. Minor did not show anger and she did not hurt the other children; instead, she hugged them and played with them. At the time of the hearing, Minor and Aunt were visiting California, staying with the foster mother's family. Minor appeared very comfortable and happy, and she showed no signs of stress. She appeared very bonded to Aunt, with a "loving, gentle relationship" that the foster mother described as "what I dreamed of for [Minor]." Minor clung to Aunt and turned to her, rather than the foster mother, for help when she hurt her foot because she wanted her "mommy" to fix it. The foster mother had never seen Minor act in that way toward Mother or Father. Minor told the foster mother during the current visit that her new state was her home, and she was just visiting the foster mother.
The foster mother agreed that Father was attentive with Minor during visits, that they were very affectionate toward each other, and that Minor loved Father. About four or five months before the hearing, Minor had begun sometimes calling Father by his first name, instead of "Daddy." The foster mother thought Minor did not have a father- daughter relationship with Father; rather, he was "more like a toy" to her, "the fun person to go have candy with and play a game."
Father testified that he loved Minor and showed her his love and affection. They engaged in activities she enjoyed. She enjoyed their time together and told him she loved him. She would tell him she missed him and ask when she could come home. She recognized him as her father and always called him "[D]addy." He wanted to remain an active part of her life.
The juvenile court terminated Mother and Father's parental rights on May 31, 2016, and ordered a permanent plan of adoption.
II. DISCUSSION
A. Request to Reinstate Reunification Services
Father contends the trial court abused its discretion in denying his request to change its order terminating reunification services. "Section 388 permits a parent to petition the court on the basis of a change of circumstances or new evidence for a hearing to change, modify or set aside a previous order in the dependency. The parent bears the burden of showing both a change of circumstance exists and that the proposed change is in the child's best interests. [Citation.] A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) After termination of reunification services, the focus of the proceedings is not on the parents' interest in the care, custody, and companionship of the child, but rather the child's need for permanence and stability, and the juvenile court must recognize this shift in focus in ruling on a section 388 petition. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) We review the juvenile court's decision for abuse of discretion. (In re Casey D., supra, at p. 47.)
There was no abuse of discretion here. Father contends the changed circumstances are found in the facts that he was separated from Mother, had secured housing and could provide for Minor financially, and was visiting Minor and attending counseling. However, there was evidence that Mother and Father had continued living together even after Father assured the Department that was not the case. The juvenile court could reasonably disbelieve Father's assertion that he and Mother no longer had a romantic relationship. Moreover, despite the mutual affection Minor shared with Father, he was participating in only supervised visits with her, and he acknowledged he was not yet able to take her into his home. This record shows, at most, "changing circumstances." (In re Casey D., supra, 70 Cal.App.4th at p. 47.) And, as in Casey D., reinstating services would mean delaying the time that Minor would have the stability of a permanent home, in the hope that Father might be able to reunify at some future point. (Ibid.)
Minor was only four years old at the time of the hearing, and she had lived out of Father's care for more than half her life. Father had already had more than 18 months of reunification services and had failed to reunify with Minor. He had trouble managing his anger, and Minor had suffered emotionally after unsupervised visits with her parents. Meanwhile, Minor was living with prospective adoptive parents, with whom she had bonded, and since living with them had become calmer, happier, and better behaved. The court could reasonably conclude Minor's well-being would not be served by delaying permanence and allowing Father to resume reunification services.
B. Beneficial Relationship Exception to Termination of Parental Rights
Father contends the juvenile court erred in not applying the section 366.26, subdivision (c)(1)(B)(i) exception to the termination of parental rights because he and Minor share a loving bond and Minor would benefit from continuing a parent-child relationship with him.
Where reunification services have failed and a hearing pursuant to section 366.26 is held, the court must determine whether the child is likely to be adopted; if so, with limited exceptions, the court must terminate parental rights and order the child placed for adoption. (§ 366.26, subd. (c)(1).) Under that section, the denial of reunification services "shall constitute a sufficient basis for termination of parental rights" unless "(B) [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. . . ." The parent has the burden of proving the applicability of the beneficial relationship exception. (In re Autumn H. (1994) 27 Cal.App.4th 567, 574.)
The In re Autumn H. court recognized that "[i]nteraction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.) The beneficial relationship exception applies only when the relationship with the natural parent "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." (Autumn H., at p. 575.) Only 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 [is] the preference for adoption . . . overcome [so that] the natural parent's rights are not terminated." (Ibid.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs." (Id. at p. 576.)
There is some conflict in the courts of appeal as to the proper standard of review of a juvenile court's finding as to whether one of the exceptions to adoption applies. (See In re Autumn H., supra, 27 Cal.App.4th at pp. 575-577 [substantial evidence standard applies to finding on the applicability of beneficial relationship exception]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [applying abuse of discretion but recognizing difference in standards not significant]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315 [applying combination of both standards].) We agree with Jasmine D. that the practical differences between the two standards in evaluating the beneficial relationship exception are not significant. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On the record before us, we would reach the same result under either standard.
The juvenile court could reasonably decline to apply the beneficial relationship exception here. We recognize that Father loved Minor, that she showed love for him, and that he behaved appropriately toward her on supervised visits. However, Minor was removed from his care when she was only 21 months old, she had lived away from him more than half her life, her behavior after visits had deteriorated after she began having unsupervised visits with her parents and improved shortly after unsupervised visits ceased in October 2015, she was happy in her new placement with Aunt and Uncle, she considered their home her new home, and she had become calmer and better behaved since living with them. There is ample support for a conclusion that Minor would not be "greatly harmed" if Father's parental rights were terminated and that any harm was outbalanced by the security she would gain as part of a new adoptive family.
III. DISPOSITION
The orders appealed from are affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.