Opinion
A155629
09-06-2019
In re A.G., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. E.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. DEP4693)
This case is before us for the second time, the first being a challenge by the parents to the jurisdiction and disposition orders for their daughter, A.G. (who is now 10 years old) and her maternal half-brother. The father, E.M., now appeals the termination of his parental rights to A.G., claiming the court erred in failing to apply the beneficial parental relationship exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).) He also claims the court erred when it advised him he could file a petition under section 388 if he wanted to maintain contact with A.G. after termination of his parental rights. We hold the juvenile court did not err in refusing to apply the parent-child relationship exception, and even though the judge's advice about a section 388 petition was incorrect, the error was forfeited by failure to raise it below, and in any case the error was harmless. We will affirm the orders made at the section 366.26 hearing.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
In August 2015, A.G. (then age six) and her maternal half-brother (then age eight), were removed from their parents' home by the Sonoma County Human Services Department (Department) due to ongoing domestic violence between E.M. and the children's mother, Amy. A.G.'s half-brother was returned to his presumed father. This appeal involves only A.G., as to whom E.M. attained presumed father status.
The children also have an adult maternal half-sister, and A.G. has several adult paternal half-siblings.
Both adults were guilty of physical aggression in the domestic violence, and the children were adversely affected by it. A more complete recitation of the facts leading to removal of the children is contained in our prior unpublished opinion (In re A.G. (May 26, 2017, A147252) [nonpub. opn.]), of which we take judicial notice. (Evid. Code, §§ 452, 459.) The parties are familiar with those facts, which will not be repeated. On Amy and E.M.'s first appeal, we affirmed the jurisdiction and disposition orders. This opinion shall focus on the facts that developed after those orders were entered.
In October 2015, before the disposition hearing, A.G. was placed in the care of Morgan M. (Morgan), who had at one time been married to E.M.'s brother, but who was now divorced from him and was regarded as a non-relative extended family member (NREFM). A.G. has been in Morgan's care ever since. Morgan has provided A.G. with a stable home, has attended closely to her significant medical needs, ensured that she has attended school, supported the mental health work A.G. has been engaged in through the Department, and involved her in extracurricular activities. A.G. likes living with Morgan and feels safe in Morgan's home. Through most of the dependency, however, A.G. reported that she wanted to live with her mother, father and Morgan, as well as other family members.
At the time of the six-month review, E.M., who had previously been a good provider for the family, was splitting his time between living with family and living in his van; he was working intermittently as a contractor. He had completed 17 group sessions in a batterer's intervention program and was participating in individual therapy. The social worker expressed no concerns about his sobriety and decided drug testing was unnecessary.
E.M. did visit A.G. regularly, although he missed a few visits for various reasons. Then and throughout the dependency, when E.M. visited, parent and child showed consistently strong bonds. E.M. excelled at staying patient and calm. He praised A.G. and expressed affection for her, and she for him.
At the six-month review hearing on June 2, 2016, the judge declined to return A.G. to her parents. He eliminated drug treatment from E.M.'s reunification plan and ordered additional reunification services for E.M.
On June 20, 2016, E.M. was arrested for possession of methamphetamine and possession of drug paraphernalia. In August 2016, the Department asked the court to add substance abuse services back into E.M.'s case plan, and the court complied. E.M. insisted he never used methamphetamine, and though an officer noted in a police report that E.M. had admitted methamphetamine use during booking, E.M. claimed that statement was fabricated. From the time random drug testing was reinstated until the 12-month review, E.M. consistently tested negative for drugs. His criminal case was dismissed.
In its 12-month status review report in December 2016, the Department recommended termination of Amy's parental rights, but requested further reunification services for E.M. E.M. had completed the 52-week batterer's program. He was living with family and had some contracting work.
E.M. was still visiting with A.G. consistently and the visits were generally going well. The Department, however, was still concerned about E.M.'s ability to manage A.G.'s care in light of her chronic illnesses (severe eczema, food allergies, and asthma), which had remained largely untreated until A.G. entered Morgan's care. In November 2016, the court authorized a trial home visit with E.M. In January 2017, Morgan applied for and was granted de facto parent status, fearing that if A.G. were returned to E.M.'s care, he would not allow her to see Morgan.
By February 2017, the Department was recommending returning A.G. to her father under a plan of family maintenance. In late February 2017, however, the Department reported that Amy stayed in a van at E.M.'s home over a weekend when A.G. was visiting, and the two parents got into an argument in which Amy cussed and spat at E.M. It scared A.G. and she became uncommunicative, withdrawn, and sad. This incident called into question E.M.'s judgment and capacity to keep A.G. safe. E.M. said it was a one-time mistake, but in April 2017, at the 18-month contested review hearing, the court terminated reunification services for E.M. and set a section 366.26 hearing, which was held in September 2017.
Dr. Gloria Speicher, Ph.D., performed a bonding study for A.G. She concluded A.G. and E.M. shared a strong parent-child bond. A.G. sought E.M.'s proximity and maintained closeness. She was energetic, light-hearted, and animated around him. She expressed affection, touched him and gazed at him. She wanted to spend time with E.M. and wished she could live with him and Amy.
Dr. Speicher testified at the hearing that A.G. would be emotionally harmed if she lost her relationship with E.M. Dr. Speicher was concerned that Morgan would have difficulty supporting a continued relationship between A.G. and E.M., but opined that A.G. needed that access. Social worker Jesse Saffold, who observed many visits between A.G. and E.M., confirmed the visits were positive and said A.G. missed her family. Saffold believed E.M. recognized A.G.'s needs, and A.G. loved him.
At the September 2017 hearing, Morgan was identified as A.G.'s potential adoptive parent. At the conclusion of the hearing, the court found there was clear and convincing evidence that A.G. was adoptable. The court also found, however, that A.G.'s relationship with E.M. outweighed the benefits she would receive from adoption. The court named Morgan as A.G.'s guardian, forgoing the termination of parental rights. E.M. was granted monthly visits with A.G. in accordance with an agreed-upon schedule, with certain extended family members also allowed to attend.
After the guardianship was established, further conflicts developed between Morgan and E.M. around visitation because E.M. did not communicate his plans in advance to Morgan. At the first monthly visit, E.M. brought nine other people with him, and they planned to go to the Oakland Zoo. This was not communicated in advance to Morgan. E.M. was not speaking to Morgan at all. When Morgan helped A.G. try to contact her father by FaceTime, he did not answer and did not call back, which left A.G. feeling sad. At the second monthly visit, some 30 people attended, and A.G. barely had a chance to talk to E.M. E.M. was invited to Christmas dinner at Morgan's house, but he did not confirm his attendance and did not show up. For the third monthly visit, E.M. planned to involve 17 people, but did not identify who they were or if they were appropriately included. In January 2018, E.M. arrived an hour late to the visit and left 35 minutes early, which disappointed A.G.
By February 2018, Morgan decided she wanted to adopt A.G., saying she could no longer function as A.G.'s guardian given E.M.'s behaviors and the chaotic and stressful nature of the visits. By this time, A.G. said she wanted to live with Morgan, and her father could visit. For his part, E.M. complained that the visitation order was not being followed. On March 1, 2018, the court set the case for a new section 366.26 hearing, finding the plan of guardianship might no longer be appropriate.
In its next section 366.26 report, the Department noted E.M.'s visits were inconsistent, difficult to arrange, and highly contentious. He did visit in March and April of 2018 and those visits went well. A.G. still wanted her father to visit. Nevertheless, the social worker believed the beneficial parent-child relationship exception no longer applied and termination of parental rights would not be detrimental to A.G.
The second section 366.26 hearing commenced on June 14, 2018 and was concluded on August 20, 2018. Dr. Speicher had submitted a follow-up letter in April 2018 saying that A.G. continued to have a strong bond with her parents and particularly with her father. Dr. Speicher believed Morgan wanted to adopt A.G. primarily because she wanted more respect from A.G.'s biological family, and she was not considering A.G.'s best interests. Dr. Speicher continued to support application of the beneficial parental relationship exception.
At the August hearing, a tribal expert, Richard England, opined that custody of A.G. by either parent was likely to result in serious emotional or physical damage. Social worker Anna Costello testified that from June 8 until August 20, 2018, A.G. had not asked about E.M. or requested to visit with him. Morgan testified that setting up visits was very difficult. Morgan wanted to adopt and would facilitate visits with A.G.'s siblings, but did not want to continue supervising visits between E.M. and A.G.
E.M. is an enrolled Freedmen Band citizen of Seminole Nation. The court found A.G. was an Indian child and the Indian Child Welfare Act (ICWA) applied. --------
The court found no doubt there was a bond between father and daughter. Nonetheless it found adoption was the best plan for A.G. and terminated parental rights. It hoped there could be a plan for ongoing father-daughter contact and suggested E.M. could file a section 388 petition to seek future visitation. E.M. filed a timely notice of appeal.
II. DISCUSSION
E.M. raises two issues on appeal: first, the trial judge erroneously told him at the section 366.26 hearing that he could file a petition under section 388 if he wanted continued contact with his daughter, and second, the court should have applied the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) A. Section 388 Petition for Continuing Contact after Termination of Parental Rights
At the end of the second selection and implementation hearing, the court told E.M. he could file a petition under section 388 if he wanted to continue to maintain visitation with A.G. E.M. correctly points out this was an error of law. A parent whose parental rights to a given child have been terminated lacks standing to file a section 388 petition to attempt to acquire ongoing contact with that child. (Amber R. v. Superior Court (2006) 139 Cal.App.4th 897, 902-903.) Postadoption contact agreements are not ordered as part of the dependency proceedings. (In re Kimberly S. (1999) 71 Cal.App.4th 405, 413-415; see also In re Zachary D. (1999) 70 Cal.App.4th 1392, 1395-1398.) Under section 366.26, the court has no authority to modify an order terminating parental rights by granting postadoption visitation to the parent. (§ 366.26, subd. (i)(1); see In re Jacob E. (2004) 121 Cal.App.4th 909, 925.) The law does provide E.M. with an opportunity to seek continuing contact with A.G. in the future, but that would have to be done in the adoption proceedings, and it would require the voluntary agreement of the adoptive parent. (Fam. Code, § 8616.5.)
The Department does not disagree with E.M.'s premise that a section 388 petition is not available to a parent in these circumstances. It advocates, however, that E.M.'s failure to raise this issue at the section 366.26 hearing forfeited the issue. Alternatively, it argues that any error by the trial court was nonprejudicial.
We agree that E.M. forfeited this argument by failing to raise it in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) This is the type of error that easily could have been corrected if timely raised, and it would be unfair if E.M. were allowed to raise it for the first time on appeal. (See ibid.; In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
Moreover, the error was harmless. Unlike In re S.B. (2008) 164 Cal.App.4th 289, 300, upon which E.M. relies, any residual hope the judge had about future father-daughter contact does not appear to have influenced his decision to select adoption as A.G.'s permanent plan. In In re S.B., the juvenile court recognized that the child would benefit from continuing her relationship with the father and based its decision to terminate parental rights in part on the caregiver's willingness to allow the father to continue to visit the child. (Id. at p. 300.) The Court of Appeal "did not believe a parent should be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." (Ibid.) In contrast, here the court did not specifically base its decision on the possibility that E.M. could have future visits with A.G. The court had already made its findings and orders, terminated parental rights, and given appellate advisements before making the comment that E.M. could file a section 388 petition if he wanted contact with A.G. In these circumstances, we see no prejudice from the court's error. B. Beneficial Parental Relationship Exception to Adoption
The court's role at a hearing under section 366.26 is to select the best permanent plan for a child who cannot be returned to his or her parent's care, which generally may be categorized as: adoption with termination of parental rights, tribal customary adoption, guardianship, relative placement, or long-term foster care. (§ 366.26, subd. (b)(1)-(7).) As the most permanent of the available options, adoption is the plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).) Indeed, when a court finds a child is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds a "compelling reason for determining that termination would be detrimental to the child" due to one or more of the statutory circumstances delineated in section 366.26. (§ 366.26, subd. (c)(1)(B).)
One such exception is the beneficial parental relationship exception, which exists 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).) To constitute a "compelling reason" for deciding against adoption (id., subd. (c)(1)(B)), the parent must prove 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." (Autumn H., supra, 27 Cal.App.4th at p. 575.)
The question of regular visitation and whether the parent occupies a beneficial parental role in the relationship are essentially factual determinations, but the final balancing function—deciding whether the relationship provides a " 'compelling reason' " to choose an option other than adoption—while "based on the facts . . . is not primarily a factual issue." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315.) Rather, it is "a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Ibid.)
The parent has the burden of proof by a preponderance of the evidence when invoking the beneficial relationship exception. (In re E.T. (2018) 31 Cal.App.5th 68, 76.) When a court agrees the beneficial relationship exception applies, it must state the supporting reasons in writing or on the record. (§ 366.26, subd. (c)(1)(D).)
Finally, the juvenile court must consider the wishes of the child, but the court must weigh those wishes in light of the child's best interests. (§ 366.26, subd. (h)(1).) Even when a child loves his or her parents and desires continued contact with them, the court may nonetheless terminate parental rights if doing so is in the child's best interests. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 955.)
There is some inconsistency in the appellate cases about the correct standard of review. (Compare In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) [abuse of discretion] with In re G.B. (2014) 227 Cal.App.4th 1147, 1166 & fn. 7 [substantial evidence standard applied, but recognizing other views].) This issue is pending in the California Supreme Court in In re Caden C. (2019) 34 Cal.App.5th 87, review granted July 24, 2019, S255839. Most recently, there has been a trend to adopt a hybrid or composite standard of review, applying the substantial evidence standard to underlying factual determinations—whether a parent has maintained regular visitation or whether a parent-child bond exists—and the abuse of discretion standard to the ultimate question whether such a bond provides a compelling reason to forgo adoption. (E.g., In re E.T., supra, 31 Cal.App.5th at p. 76; In re Breanna S. (2017) 8 Cal.App.5th 636, 647; In re K.P. (2012) 203 Cal.App.4th 614, 621-622; In re Bailey J., supra, 189 Cal.App.4th at p. 1315.) Under any of these standards, we would conclude there was no error.
We may accept for purposes of argument that E.M. consistently visited and maintained contact with A.G. and that they had an emotional parent-child bond the continuation of which would to some extent benefit A.G. The crux of the dispute is whether that bond was so meaningful to A.G. that it would outweigh the benefits of adoption and its termination would be detrimental to A.G. On that point, whether reviewed for abuse of discretion or substantial evidence, we find no basis for overturning the juvenile court's decision.
E.M. concedes that a parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) He claims, however, "when the parent has met the burden of showing maintenance of regular visitation and contact, and the relationship is beneficial to the child, the court errs in not applying the exception," citing In re Amber M. (2002) 103 Cal.App.4th 681, 689-691. But the word "beneficial" in this context has a special meaning. (See id. at p. 689.) "Interaction between natural parent and child will always confer some incidental benefit to the child." (Autumn H., supra, 27 Cal.App.4th at p. 575.) The statute requires the court to balance the strength of the parent-child bond against the benefits of adoption and to apply the statutory exception only where the parent-child 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." (Ibid.)
Here, substantial evidence supports the trial court's conclusion that A.G.'s relationship with her father was not so significant and compelling that the benefit of preserving it outweighed the stability and permanence of adoption. The ICWA expert, England, testified that "beyond a reasonable doubt continued custody [with her parents] would likely cause emotional and physical damage" to A.G., and that "the circumstances that led up to this [dependency] were very negatively impactful on [A.G.] emotionally, behaviorally, psychologically" and "[b]eing exposed to direct violence and not having her medical needs met was very damaging to her." He observed there was "obviously a very strong bond and attachment" between A.G. and Morgan, A.G. had "stability at her current placement," and it was "very peaceful in their home." He described her living environment as "exceptional" and opined, "most importantly, your permanency is something that provides children with, you know, self-confidence and self-esteem, and they are the building blocks they need to be successful, and I think that she has that in her current placement."
The social worker also testified that permanency of adoption was important for A.G. because she "deserve[d] the right to have a permanent and stable home where she [could] grow up and have all of her needs met, her physical, emotional, and basic needs met, as well as just having a secure place in the community." When she spoke with A.G. about her week, her days and thoughts, A.G.'s discussions always revolved around Morgan and A.G.'s siblings, not E.M. The social worker expressed her "opinion that the benefits of [A.G.'s] relationship with her parents [did] not outweigh the benefits of permanency of adoption." A.G. felt safe living with her "mom" (Morgan) and wanted to stay where she was living. A.G. confirmed she did not experience fighting in Morgan's home, and one of the main values all family members were taught was to "be loving and share kindness."
A.G.'s therapist, Marianne Rickards, authored a letter saying A.G. would be sad if she did not get to visit with her father. Nevertheless, Rickards indicated A.G. needed a plan of permanency that did not include "on-going court check-ins and scheduled visits that may or may not result in success." She noted that A.G. wanted to reside with Morgan and wanted no more involvement with the courts or social workers. Rickards also opined that severance of parental rights would not be detrimental to A.G., "given the [father's] lack of responsibility . . . in attending to [A.G.'s] needs."
As previously mentioned, E.M. relies in large part on In re S.B., supra, 164 Cal.App.4th 289, but that case does not compel a reversal of the court's orders. In In re S.B., the father had a strong bond with the child who spontaneously stated that she wanted to live with him (id. at p. 298), and "the only reasonable inference [was] that S.B. would be greatly harmed by the loss of her significant, positive relationship" with her father (id. at p. 301). Here, only Dr. Speicher supported E.M.'s position that the parent-child relationship promoted A.G.'s well-being sufficiently to outweigh the benefits of adoption. Dr. Speicher had not seen E.M., A.G., or Morgan recently before completing her updated April 2018 letter. She based her opinion solely on the status review report submitted to the court on March 1, 2018.
All of the other witnesses believed adoption was in A.G.'s best interests and the bond with her father did not outweigh the well-being and stability she would gain through adoption. Circumstances had changed since the section 366.26 hearing held in September 2017, and the facts no longer supported a finding that this was the exceptional case described in S.B. (See In re C.F. (2011) 193 Cal.App.4th 549, 558 ["S.B. is confined to its extraordinary facts"].) Indeed, "it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The court did not abuse its discretion in finding the benefit of maintaining A.G.'s relationship with E.M did not outweigh the benefits of adoption.
III. DISPOSITION
The juvenile court's orders of August 20, 2018 terminating E.M.'s parental rights to A.G. and selecting adoption as A.G.'s permanent plan are affirmed.
/s/_________
STREETER, Acting P.J. We concur: /s/_________
TUCHER, J. /s/_________
BROWN, J.