Opinion
C086218
10-19-2018
In re A.T., a Person Coming Under the Juvenile Court Law. SUTTER COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. A.T., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DPSQ106610)
Father of minor A.T. appeals from the juvenile court's order terminating parental rights and adopting a permanent plan of adoption. (Welf. & Inst. Code, §§ 366.26 & 395.) Father contends the juvenile court erred in failing to apply the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Finding the claim lacks merit, we will affirm the juvenile court order.
Undesignated statutory references are to the Welfare and Institutions Code. --------
BACKGROUND
On June 9, 2015, the Sutter County Human Services Department (Department) filed a dependency petition pursuant to section 300, subdivisions (a) and (g). The petition alleged the then eight-year-old minor suffered significant bruising after father hit him with a belt, something father admitted doing all the time. The petition alleged father had an extensive criminal history dating back to the 1980's which included multiple assaults, corporal injury, battery of a spouse, and assault with a deadly weapon causing injury. As a result of the alleged assault on the minor, father was arrested for child cruelty. (Pen. Code, § 273a, subd. (a).) The petition also alleged the minor's mother was deceased and father left the minor without support or care while father was incarcerated.
The juvenile court ordered the minor detained on June 11, 2015.
The jurisdictional report recommended dismissal of the section 300, subdivision (g) allegation due to father's release from custody. Father submitted to the report after an agreement with the Department regarding a dispositional recommendation that would return the minor to father's custody in two weeks contingent upon father's participation in his case plan. The juvenile court adopted the recommended findings in the report, struck the subdivision (g) allegation from the petition, found the subdivision (a) allegations true by a preponderance of evidence, and ordered father to participate in reunification services as provided by the Department.
The disposition report recommended the minor be declared a dependent of the juvenile court and returned to father with a family maintenance program. The report stated the minor was diagnosed with autism and was being provided with respite care and specialized academic instruction, language, speech, and occupational therapy at school. The report noted father and the minor appeared to be bonded and visits at the caregiver's home were reportedly going well. Father went to the foster home in the evenings and spent one to two hours visiting with the minor. The foster mother reported no concerns, stating that when father came to her home for visits, the minor "lights up . . . and the two play together and are affectionate." Father brought clothes and shoes to the minor, and regularly took the minor to the doctor. The minor told the social worker he wanted to live with father. It was also reported that father's case plan included a positive discipline parenting class and a mental health assessment. Father requested that services be flexible around his work schedule. Father identified a former girlfriend, J.J., as a potential caregiver for the minor during father's work hours.
At the August 18, 2015 disposition hearing, the juvenile court adopted the recommendations in the disposition report, found the minor's placement in foster care was no longer necessary, and ordered the minor returned to father's care and custody under a family maintenance program.
On October 19, 2015, the Department filed a supplemental dependency petition pursuant to section 387 alleging father had been arrested after engaging in domestic violence against his girlfriend P.U. in the minor's presence.
On October 20, 2015, the juvenile court ordered the minor detained and further ordered supervised visits three times per week, giving the Department the discretion to determine whether unsupervised visits were appropriate.
The jurisdictional report filed November 10, 2015 recommended the juvenile court sustain the allegations in the supplemental dependency petition. The report noted that father "continues to make poor decisions in regard to the safety and care of his son, [the minor]," and "has continued to maintain a tumultuous relationship with [P.U.]" The report also noted that father had visited with the minor at the Department and had engaged with the minor in age-appropriate play.
At the November 10, 2015 jurisdictional hearing, the juvenile court adopted the recommended findings and orders, found the allegations in the supplemental petition true by a preponderance of evidence, and ordered the minor detained.
The disposition report filed December 15, 2015 recommended the minor be continued in out-of-home placement. The report stated father visited with the minor three days a week for one hour. Father was attentive to the minor during visits, and the minor stated he enjoyed visits with father. The minor stated he was sad about the fighting between father and P.U. and wished it would stop. Father was reportedly benefiting from his parenting class. However, despite recommendations for referrals for a mental health assessment and a domestic violence program, father stated he did not need anger management. He later stated he did not agree to the domestic violence classes and could not afford them.
At the December 15, 2015 disposition hearing, the juvenile court found father's progress toward alleviating or mitigating the issues necessitating removal of the minor to be minimal and continued the minor's out-of-home placement. The juvenile court continued supervised visitation and granted the Department discretion to increase the number of visits and transition to unsupervised visits.
The interim review report filed March 15, 2016 stated father was enrolled in the batterer's treatment program on January 28, 2016 but did not believe he had a problem with domestic violence because "he was wrongly accused," and did not believe the use of corporal punishment was wrong. He was reportedly late or absent for a number of scheduled therapy appointments and had not yet completed a mental health assessment. He was, however, visiting the minor frequently. The social worker reported father "wasted a lot of time and energy during this reporting period complaining, arguing, and blaming others and the system for his present circumstances." He often claimed he had taken domestic violence classes in prison and for three months after release from prison, but he had not provided any verification of attending or completing any domestic violence program or anger management. He further argued that "whoopings" were a part of his culture.
At the March 15, 2016 review hearing, the juvenile court again found father's progress in his case plan to be minimal and continued the minor in out-of-home placement.
The six-month status review report filed June 14, 2016 recommended the minor continue in out-of-home placement. It was reported that father resolved his related criminal case on April 15, 2016 and was placed on felony probation for four years and ordered to complete a 52-week batterer's treatment program as a condition of his probation. While father had previously enrolled in a batterer's treatment program in January 2016 as part of his case plan, he had yet to attend the program and stated he felt he did not need to do so. He had also not yet participated in mental health counseling. Since the March 15, 2016 interim hearing, father had participated in visitation with the minor, but had yet to comply with the court-ordered individual therapy. The report stated father's "resistance continues to place his son's welfare at risk by not addressing the concerns that brought him to the attention of the Court" and noted that, without father's "full commitment and engagement in the case plan," there was no new information to evaluate whether it would be safe to return the minor to father's care.
At the June 14, 2016 six-month review hearing, the Department informed the juvenile court that father had been consistent with visitation but had not otherwise complied with his case plan. The juvenile court ordered that the minor remain in out-of-home placement and continued father's reunification services. The juvenile court granted the Department discretion to return the minor to father prior to the next hearing and advised the parties that, so long as father was compliant with his case plan and probation, visitation should continue to be increased to possibly include overnight visits.
According to the interim review report filed September 6, 2016, father was observed on August 9, 2016 having a physical altercation with his girlfriend in the parking lot of the behavioral health offices in the presence of the minor's sibling. A social worker was able to separate the couple, both of whose shirts were torn. No arrests were made and father and the minor's sister were given a ride home by a law enforcement officer.
The interim review report stated father "avoided therapy" during both the previous and the current reporting period, either rescheduling, canceling, or no-showing for appointments and for the initial evaluation. According to father's therapist, Thomas Metcalf, father was scheduled for an orientation to mental health services and a mental health assessment but missed two appointments and arrived late for the third appointment preventing Metcalf from completing the evaluation. Father failed to show up for the scheduled follow-up session to complete the evaluation. While Metcalf was unable to determine whether father had the ability to have healthy relationships due to father's missed appointments, Metcalf offered his impression that father "presents himself as a victim when talking about the way he is treated" by law enforcement, Child Protective Services (CPS), and former girlfriends. Metcalf was unable to reach father and, from March 2016 to May 11, 2016, father failed to follow-up with Metcalf to finish the evaluation or reschedule his therapy session. Father also failed to attend any therapy in June or July 2016, but eventually attended a session with Metcalf on August 22, 2016.
The interim review report stated father enrolled in a 52-week batterer's treatment program on January 28, 2016, but failed to provide income verification information until March 2016. Staff attempted to reach father by telephone, but his number was disconnected. A letter was sent informing father to start the class on April 7, 2016. However, father failed to attend any of the scheduled classes and, after missing six consecutive classes, was dropped from the program. When questioned about this, father stated he could not afford the class and did not want to pay for something he would do voluntarily. Father was scheduled for the probation department's next available batterer's treatment program orientation meeting on August 31, 2016.
Father participated in an eight-week positive parenting class from September to November 2015. He was participating in supervised visits with the minor twice a week for two hours but canceled three visits due to work and no-showed for two additional visits. The minor reportedly enjoyed visits with father, and father had not used any physical punishment during visits with the minor. The Department again recommended that the minor continue in out-of-home placement.
Father was not present for the September 6, 2016 review hearing. The juvenile court ordered the minor continued in out-of-home placement and adopted the findings and orders recommended in the interim review report.
The November 2016 status review report stated father attended four out of the five scheduled sessions of the batterer's treatment program, with 48 sessions remaining. He reportedly had a good attitude, his acceptance of responsibility was average, his homework completion was poor, his practice of learned skills was average, and his overall participation was average. The program facilitator noted father "needs to gain a full understanding of the circumstances that led him to be ordered to complete the class." Father reportedly attended 6 out of 11 scheduled therapy sessions. With regard to the altercation with his girlfriend in the parking lot on August 9, 2016, father stated he had since ended the relationship with his girlfriend and claimed he filed a restraining order against her although he had no proof of doing so.
At the November 8, 2016 review hearing, father requested that the plan transition to family maintenance or, alternatively, a three-month review and expanded visitation to include unsupervised and overnight visits with Departmental discretion to return the minor to father's custody. The juvenile court found father had consistently and regularly visited with the minor, and that his progress in services was "steadily improving." The juvenile court continued the minor in out-of-home placement and continued the plan of family reunification, adopted a permanent plan of returning home to father's custody, and set the matter for a three-month interim review hearing as requested by the parties. The visitation order was modified to allow for a minimum of two supervised visits per week with CPS discretion to increase visits and include overnight visits. Finally, the juvenile court reiterated the importance of father's participation in therapy, the batterer's treatment program, and visitation, and the need to be on time for his appointments.
According to the interim review report filed January 31, 2017, father missed two scheduled safety mapping appointments and showed up 30 minutes late for the third appointment. Father was attending batterer's treatment sessions with average participation and acknowledgment of responsibility for his abusive actions. The facilitator noted father "continues to struggle with taking responsibility for his actions as he doesn't have a clear understanding of the circumstances of why he is in the [program]." He told staff he was committed to returning to therapy, abiding by his safety plan, and completing his batterer's treatment program. However, therapist Metcalf and the social worker expressed concern about father's constant tardiness and failure to attend appointments or visits altogether. Metcalf stated father seemed to always be late or caught up in other activities that prevented him from being on time.
The report indicated father missed 7 out of 20 scheduled visits with the minor between November 2016 and January 2017. The social worker noted father's attendance at visits was poor.
According to the May 2017 status review report, father attended only half of the 52-week batterer's treatment program sessions and was dropped from the program due to his failure to comply with program requirements. In particular, the facilitator noted father attended groups without having prepared the assignments and completed only a quarter of the 24 required training modules. As a result, it was recommended that father's probation be revoked. It was also reported that father's therapist, Metcalf, was closing father's case due to excessive absences, noting father had not been motivated for treatment and exhibited marginal action or effort to change his dysfunctional behaviors.
The report stated father had been inconsistent with his twice-weekly visitation schedule. Between February and May 2017, father missed 11 scheduled visits with the minor, who reportedly became very sad and broke down crying when father was late to visits or failed to show up at all.
The Department recommended that the juvenile court terminate father's reunification services, noting father was stuck in his misguided belief system that the system is out to get him, and he continued to fail to understand that it was his violent actions that caused his son to be placed at risk and subsequently placed in foster care. The Department said father had not benefitted from the services offered. The Department also recommended that the minor be continued in out-of-home placement with a permanent plan of adoption, and it requested that visitation be decreased to once per week due to father's inconsistent pattern of visits. In addition, the Department requested that father be ordered to call the day prior to visits to verify whether he would attend so as not to disrupt the minor's routine.
According to an addendum report filed June 1, 2017, father pleaded guilty in January 2017 to driving on a suspended license, improper display of a license plate, and possession of drug paraphernalia following a traffic stop. Father was sentenced to three years of summary probation. A second addendum report, filed the same day, noted father's continued inability to arrive on time to visits with the minor, as well as his inability to return on time from several visits causing the minor's transporter to be late in transporting other children. The Department requested visits be held on-site at the Department.
At the June 1, 2017 continued 18-month review hearing, father testified he was unemployed and staying with his friend Mary, with whom he was not in a relationship. He stated he had not been in a relationship within the past six months nor had he been involved in any kind of domestic violence. He admitted he was removed from the batterer's treatment program but stated he had been reinstated two weeks prior to the hearing. Father testified he had unsupervised visits with the minor twice a week for two hours and that visits were going well. He claimed he had not used corporal punishment on the minor or his siblings for the past 18 months and stated he believed the minor should not have been removed from his care.
Social worker Paul Reiner testified there was a substantial risk of detriment if the minor were returned to father based on the fact that father had three opportunities to engage in therapy and failed to keep his appointments or benefit from services, resulting in termination of his therapy. Reiner added that while father was initially doing pretty well in the batterer's treatment program, approximately one month prior to the hearing, he was discharged from the program based on excessive absences and not being prepared for class or completing his homework assignments. Reiner also testified that a background check of the son of father's roommate, Mary, revealed that the son had violent criminal behavior in his past, thus preventing father from bringing the minor to Mary's home for overnight visits. When asked his opinion regarding the risks associated with returning the minor to father's custody, Reiner stated father did not have a known address, was no longer in therapy, and failed to continue the batterer's treatment program, "so the risk . . . is that [father] has had a pattern of selecting partners and being involved in violence in those relationships." Reiner was concerned that father would become involved in a relationship in the future without first completing the batterer's treatment program and without first making "substantial gains to prevent other violent episodes from happening."
The juvenile court adopted the Department's recommended findings and orders, including that father made minimal progress towards alleviating or mitigating the issues necessitating removal of the minor. The juvenile court terminated father's reunification services, found a permanent plan of adoption was appropriate, and set the matter for a section 366.26 hearing. The juvenile court also ordered that visitation between father and the minor remain as previously ordered.
The section 366.26 report filed December 21, 2017 reflected the Department's recommendation that the juvenile court terminate father's parental rights and order a permanent plan of adoption. According to the report, the minor had been in his current placement since November 29, 2016 and was doing well. His foster parent was reportedly "very committed" to the minor and expressed a desire to adopt him. The Department assessed the minor and determined he was likely to be adopted.
According to the batterer's treatment program facilitator, father was reinstated in the program for a second time on May 24, 2017 and attended 14 sessions (in addition to those previously attended) for a total of 40 of the 52 possible sessions, and he had four unexcused absences. Father was often unprepared for class and completed only a third of the required training modules. Father was reportedly discharged from the program on September 21, 2017 for violating program rules.
Father's attendance at visits with the minor had been somewhat regular until recently, when concerns arose regarding father's behavior towards Department staff, his consistent late arrival to visitation, and his inability or unwillingness to provide for the minor's safety needs during unsupervised visitation in the community.
Between May 2017 and early-October 2017, father missed 14 of 44 scheduled visits. His last visit with the minor was on September 18, 2017. The social worker learned, after the fact, that father had been arrested for shoplifting on October 14, 2017. He was also arrested that same day on outstanding warrants, resulting in suspension of visits on November 6, 2017. He remained in jail until November 27, 2017, when his probation officer arrested him on a probation violation for failing to complete the batterer's treatment program. He was incarcerated and remained so as of the date of the report.
At the December 21, 2017 section 366.26 hearing, father opposed termination of his parental rights, arguing the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(B)(ii)) and the sibling relationship exception (§ 366.26, subd. (c)(1)(B)(v)) both applied. Concluding otherwise, the juvenile court terminated father's parental rights and ordered a permanent plan of adoption, finding the minor was likely to be adopted.
DISCUSSION
Father contends the juvenile court erred in failing to apply the beneficial parental relationship exception to adoption. He contends the evidence demonstrated he maintained regular visitation with the minor and termination of parental rights would be detrimental to the minor due to the benefit of continuing the minor's relationship with father. The claim lacks merit.
" 'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.)
"One exception to adoption is the beneficial parental relationship exception. This exception is set forth in section 366.26, subdivision (c)(1)(B)(i) which states: '[T]he court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The 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.' [Citation.] The [parent] has the burden of proving [the parent's] relationship with the children would outweigh the well-being they would gain in a permanent home with an adoptive parent. [Citation.]" (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.)
"Because a section 366.26 hearing occurs only 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 party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
The exception "must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The 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 are some of the variables which logically affect a parent/child bond." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
"On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) " '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge.' " (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
Substantial evidence supports the juvenile court's determination that the beneficial parental relationship exception did not apply here. There is evidence that father was inconsistent in maintaining regular visitation and contact with the minor. The record indicates his visits became increasingly inconsistent. In addition, father would arrive late and return late from visits. Moreover, father failed to establish that the minor would benefit from continuing the relationship. Father claims he raised the minor until the minor was detained, resulting in the minor's positive emotional attachment to him, and it was detrimental to the minor to terminate his relationship with father. However, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from the termination of parental rights." (Jasmine D., supra, 78 Cal.App.4th at p. 1349.) " '[W]e interpret the "benefit from continuing the [parent/child] relationship" exception to mean the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer.' " (In re Zachary G. (1999) 77 Cal.App.4th 799, 811, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A child who has been adjudged a dependent of the juvenile court "should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (Jasmine D., at p. 1350.)
The evidence here showed the minor was doing well in the foster home in which he had been living since November 29, 2016. The foster parent was committed and willing to adopt the minor. In addition to her own 10-year-old biological son, the foster parent also had a 12-year-old male foster child in her care, and a three-year-old male child whom she was in the process of adopting. At the time of the 366.26 hearing, the minor would have been a month shy of his 11th birthday. The minor had positive interactions with all of his foster siblings. The foster parent provided for the minor's physical safety, emotional stability, and general well-being, and demonstrated good parenting practices with the other children in her care. She had a close bond with her own extended family, some of whom lived next door and were willing to provide additional family support. The minor reportedly looked to his foster mother for comfort, advice, structure, and love, and had become "a more relaxed, competent, and vocal member of the family." When the minor was told his foster mother would like him to be a permanent part of her family, the minor "appeared very happy and said he would like that."
Father was reportedly unable or unwilling to provide for the minor's safety needs during unsupervised visits. He was only minimally engaged or not engaged at all in services imperative to his ability to safely care for and parent the minor, as evidenced by the fact that his therapy was terminated for failure to keep his appointments and he was discharged from the batterer's treatment program due to excessive absences and failure to complete homework or prepare for class. He had also recently been arrested for shoplifting. Moreover, as expressed by his social worker, there was good cause to be concerned that father's pattern of engaging in violent relationships would continue as a result of father's failure to complete the batterer's treatment program or make "substantial gains to prevent other violent episodes from happening." While we neither minimize father's relationship with the minor nor doubt his love for the child, father failed to demonstrate the parent-child relationship was sufficiently strong that the minor would suffer detriment from its termination.
Finally, we reject father's claim, raised for the first time on appeal, that the juvenile court should have implemented a plan of legal guardianship rather than adoption. It is the rule in almost every case that where, as here, the juvenile court finds the minor adoptable, " 'it is not required to explore guardianship or other less permanent alternatives.' " (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799, quoting Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 250.) That is, "if the court finds the child adoptable and finds no exceptions are shown under [section 366.26,] subdivision (c)(1)(A) through (D), the court is entitled to presume that termination of parental rights and adoption will be the plan best serving the child's needs. In the absence of compelling evidence to rebut this presumption, the court need not consider less permanent alternatives." (In re Jose V., at p. 1800.)
The juvenile court did not err in finding the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply.
DISPOSITION
The juvenile court's order is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
RAYE, P. J. /S/_________
BUTZ, J.