In re A.R.
Filed 7/26/12 In re A.R. CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re A.R., a Person Coming
Under the Juvenile Court Law.
B236550
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
EDWIN R. et al.,
Defendants and Appellants.
(Los Angeles
County
Super. Ct.
No. CK78877)
APPEAL from
an order of the Superior Court
of
County. Elizabeth Kim, Referee. Reversed.
Julie E.
Braden, under appointment by the Court of Appeal, for Defendant and Appellant
Edwin R.
Grace
Clark, under appointment by the Court of Appeal, for Defendant and Appellant
Griselda U.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Griselda
U. (mother) and Edwin R. (father)
appeal from the October 4, 2011
order terminating their parental rights to their daughter, A.R., and selecting
adoption as the permanent placement plan.
Both parents contend the trial
court erred in finding the Welfare and Institutions Code section 366.26,
subdivision (c)(1)(B)(i) exception to the preference for adoption did not
apply.
FACTUAL AND
PROCEDURAL BACKGROUND
A.
Jurisdiction,
Disposition and Status Review
Mother and
father were both 15 years old when A.R. was born in September 2008. For the first few months, mother and father lived with
A.R. in maternal grandmother’s home, but then father moved in with his own
parents. A.R. came to the
attention of the Department of Children and Family Services when she was 11
months old based on allegations that mother and her half siblings were being
subjected to domestic violence by
maternal grandparents. During the course
of a DCFS Team Decision Making Meeting for the family on September 3, 2009, mother discussed other
incidents involving A.R. Mother admitted
that A.R. was a passenger when mother took maternal grandmother’s car without
permission, even though she did not have a driver’s license and did not know
how to drive. Mother also acknowledged
that she and father had engaged in domestic violence in A.R.’s presence. In October 2009, the court sustained a section 300
petition (paragraph b-1 ‑‑ domestic violence; paragraph b-2 ‑‑
child endangerment). A.R. was placed
with paternal grandparents on the
condition that father not live with them.
that mother demonstrated “a very strong level of maturity.” Mother visited with A.R. even when she had to
ride three buses to reach the location of the visits, which as the social
worker acknowledged, reflected a level of dedication unusually seen even in older
parents. Father was allowed to move
back into paternal grandparents’ home with A.R., and mother was given overnight
visits.
By October
2010, mother was pregnant by father with a second child. Despite successful overnight visits, mother
did not want A.R. returned to her custody because of abusiveness in the
maternal grandparents’ home. Finding
mother and father in compliance with the case plan, the court placed A.R. with
father under DCFS supervision, on the condition that father continue to live
with paternal grandparents.
Mother gave
birth to J.R. in January 2011. Around
that time, mother discovered that father had one child by another woman and
that he had another girlfriend who was eight months pregnant. On February 1, father pushed his pregnant
girlfriend, causing her to fall. On
March 31, when mother confronted father with her knowledge, father grabbed
mother’s cell phone and threatened to hit her.
The next day, mother obtained a temporary restraining order against
father. But at a TDM meeting on April
11, father denied any domestic violence and mother recanted her
accusation. A.R. was detained from
father that day and placed with mother in the home of maternal
grandmother. DCFS filed a section 387
supplemental petition, which alleged that the previous home of father placement
had not been effective in protecting A.R., and recommended modifying the
disposition to home of mother.
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A.R. was placed with mother on the condition that mother continue to live with
maternal grandmother. On April 18,
the court reissued the TRO pending a May 9 Order to Show Cause re Permanent
Restraining Order and cautioned mother that if she failed to enforce the TRO
pending the OSC hearing, the court might detain both children.
That same
day, father sat next to mother outside the courtroom. A court officer observed father take mother’s
cell phone and pinch her. Mother did not
report this incident to the social worker.
When later questioned, mother admitted the event occurred and further
admitted that she lied when she denied the March 31 incident because she was
afraid of father. A.R. and J.R. were
detained from mother and placed in an adoptive foster home.
DCFS’s Ex Parte Application to
modify the placement order (§ 385) was set for a noticed hearing. According to the DCFS report for that
hearing, the social worker was troubled that mother continued to “minimize the
seriousness [of the domestic violence perpetrated by father] and has changed
her story various times and has further failed to enforce a temporary
restraining order . . . .”
Mother was willing to retake domestic violence and parent education
programs and to participate in individual counseling, but she did not want to
move into a domestic violence shelter, which would require her to change to a
continuation high school. Meanwhile,
father enrolled in services even though he denied committing any domestic
violence. But the social worker did not
believe father had learned anything from the programs he had already
completed. Because the parents had
received over 18 months of services without reunifying with A.R., DCFS
recommended terminating reunification services and setting the matter for a
section 366.26 permanency planning hearing (.26 hearing).
Following a hearing, the juvenile
court found the previous disposition had not been effective to protect
A.R. The court sustained paragraph s-2
of the section 387 petition which alleged father engaged in a violent
altercation with mother on March 31.
Adoption was identified as the permanent placement plan, the prior home
of parent order was terminated and the matter continued to September 20 for a
.26 hearing.
Section 388 Petition
On August
3, mother filed a section 388 petition seeking to have A.R. placed with
her so long as she lived in maternal grandmother’s home or, alternatively,
placed with maternal grandmother. As
changed circumstances, mother alleged she had complied with the court ordered
treatment plan, had come to understand the harm caused to A.R. by exposure to
domestic violence and had not had any contact with father. In opposition, DCFS argued that, although
mother’s visits were going well and mother was in full compliance with the
court orders, mother continued to minimize the seriousness of the domestic
violence perpetrated by father. In
particular, DCFS referred to a comment by mother’s therapist to the social
worker, the gist of which was that although mother regularly attended her
therapy sessions, she had not told the therapist the details of the domestic
violence, or how serious it was, which could be construed as either minimizing
or denying. Mother’s intake
questionnaire suggested she was minimizing.
At the
hearing, mother testified that she regretted lying about the March 31
incident. Through therapy mother had
learned that domestic violence can escalate from just a little push. What she once thought of as a game she had
come to recognize as domestic violence.
Mother had no contact with father and no plans to renew contact in the
future. In response to questions from
the trial court, mother testified that she did not need the protection of a
restraining order because she could protect herself by staying away from
father; if father would not leave her alone, she would call the police and
contact her attorney about getting a restraining order.
The court denied mother’s petition,
observing that mother had at best established only changing circumstances –
that she was beginning to address the issue of domestic violence – not changed
circumstances, and mother had not shown that A.R.’s best interests would be
served by returning her to mother. The
.26 hearing was continued to October 4.
The
.26 Hearing
There was no testimony at the .26
hearing two weeks later. According to the DCFS report, A.R. was doing well with
her foster parents, whom she called “mom” and “mommy.” The foster parents had an approved home study
and wanted to adopt both A.R. and her brother, although reunification services
were still ongoing for J.R. Father
missed two scheduled visits in May 2011, and had not arranged any other
visits. But mother visited regularly
several hours a week and A.R. called her “mommy.” Mother also participated in all court ordered
services while remaining a full time high school student and playing team soccer. The foster care social worker stated that A.R. recognized
mother and was bonded to her. As the
social worker put it, mother appeared to “genuinely care for her children,
demonstrating a loving and caring demeanor during visits, tending to the children’s
needs, . . . hugging, kissing and playing with both, asking [A.R.] questions
about her day or week and taking her to the restroom, etc. [A.R.] recognizes [mother] as her mother and
both appear to be bonded to one another.”
The social worker observed that mother had demonstrated a dedication to
visiting her children that “is seldom seen by many older parents.” There was no contention that mother had ever
failed to provide for A.R.’s needs.
DCFS recommended terminating parental rights.
Mother, father and the children
argued for application of the section 366.26, subdivision (c)(1)(B)(i)
beneficial relationship exception to the preference for adoption. The children’s counsel related that the
foster care social worker had called counsel to tell her how well mother’s
monitored visits were going. Counsel for
the children was concerned that A.R. and her brother were on different tracks
as a result of which parental rights might be terminated for A.R. but her
brother would later be reunified.
name="_ftnref4" title="">
Father argued that application of
the exception was established by two DCFS reports from 2010, when A.R. was
placed with father while he lived with paternal grandparents. According to those reports, father was
actively involved in caring for A.R. and when paternal grandmother became ill,
father took over A.R.’s daily care.
Father acknowledged that A.R. was detained in April 2011 as a result of
father’s domestic violence, and since then he had only monitored visits with
her and had not completed any additional court ordered programs. DCFS countered that any bond father had
established with A.R. when she was living with him had been diminished by the
six months since A.R. had been in foster care and father had not maintained regular
contact.
Mother argued that she visited A.R.
regularly throughout the dependency, participated in all court ordered
services, and the .26 report established a parental bond between mother and
A.R. In addition, mother introduced a
letter dated September 15, 2011,
from the foster care worker who had been monitoring mother’s visits with A.R.
and her brother for the previous two months.
In the letter, the social worker described the positive bond between
mother and A.R. DCFS acknowledged that
mother “appeared to step up within the last six months,” but maintained it was
too little, too late.
The trial court terminated parental
rights and selected adoption as the permanent placement plan. It found in light of A.R.’s age, the
percentage of her life she lived with her parents, father’s inconsistent
visitation over the last six months and “the positive and negative aspects of
interaction between the parent[s] and the child,” the security provided by a
permanent adoptive home outweighed the benefits of a continued relationship
with mother and father. The court also summarily denied
father’s section 388 petition, observing that father had described
“changing circumstances” not “changed circumstances.”
Mother and
father timely appealed from the order terminating their parental rights.
DISCUSSION
Standard
of Review
Most
appellate courts apply a substantial evidence standard of review to the trial
court’s determination of whether a section 366.26 statutory exception
applies. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Some courts have applied the abuse of
discretion standard of review. (See,
e.g., In re Brittany K. (2005)
127 Cal.App.4th 1497, 1512.) The
practical differences between the two standards are not significant (
p. 1351), and under either standard, we would reverse.
Termination
of Mother’s Parental Rights Was an Abuse of Discretion
Implicit in
the court’s statement at the .26 hearing that the benefits of a permanent
adoptive home outweighed the benefits of a continued relationship with the
parents, is a finding that there exists some benefit in the parent-child
relationship. We at least make that
assumption for purposes of appeal. We
thus turn to whether the trial court abused its discretion in finding that the
relationship was not so beneficial that termination of parental rights would be
detrimental to A.R. Mother contends the
section 366.26, subdivision (c)(1)(B)(i) exception applies as to her. We agree.
If
reunification does not occur within the statutorily prescribed period, the
court must terminate reunification services and set the matter for a .26
hearing to select and implement a permanent placement plan. (§ 366.21, subd. (g);
45, 52.) At the .26 hearing, the court
has four choices. In order of preference,
those choices are: “(1) terminate
parental rights and order that the child be placed for adoption (the choice the
court made here); (2) identify adoption as the permanent placement goal and
require efforts to locate an appropriate adoptive family; (3) appoint a legal
guardian; or (4) order long-term foster care.
(§ 366.26, subd. (b).)
Whenever the court finds ‘that it is likely the child will be adopted,
the court shall terminate parental rights and order the child placed for
adoption.’ (§ 366.26,
subd. (c)(1).) . . . ‘Adoption is the Legislature’s first choice
because it gives the child the best chance at [a full] emotional commitment
from a responsible caretaker.’
[Citation.]” (
While the Legislature has expressed a strong
preference for adoption, adoption is not the appropriate plan in every
case. (§ 366.26, subds. (b)(1)
& (c)(1).) An exception exists when,
as in this case, the child has a strong bond with the parent and severing that
bond would be detrimental to the child.
(See § 366.26, subd. (c)(1)(B)(i); see In re S.B., supra, 164 Cal.App.4th at p. 299 [“The
exception [to the preference for adoption] may apply if the child has a
‘substantial positive emotional attachment’ to the parent.”].) The beneficial parental relationship
exception applies when “ ‘[t]he court finds a compelling reason for
determining that termination would be detrimental to the child’ (§ 366.26,
subd. (c)(1)(B)) because ‘[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).)’ ” (
614, 621.) “The ‘benefit’ prong of the
exception requires the parent to prove his or her relationship with the child ‘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.’ [Citations.]
No matter how loving and frequent the contact, and notwithstanding the
existence of an ‘emotional bond’ with the child, ‘the parents must show that
they occupy “a parental role” in the child’s life.’ [Citations.]
The relationship that gives rise to this exception to the statutory
preference for adoption ‘characteristically aris[es] from day-to-day
interaction, companionship and shared experiences. Day-to-day contact is not necessarily
required, although it is typical in a parent-child relationship.’ [Citation.]
Moreover, ‘[b]ecause 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.’ [Citation.]”
(Id. at p. 621.) A showing that the child would derive some
benefit from continuing a relationship with the parent through visitation is
not enough to derail an adoption. (
78 Cal.App.4th at p. 1348.)
The exception is not “a mechanism for the parent to escape the
consequences of having failed to reunify.”
(Ibid.)
The parents bear the burden of
showing that termination of parental rights would be detrimental to the
child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) In In
re S.B. (2008) 164 Cal.App.4th, 289, 301, the reviewing court found
that the only reasonable inference from the record, which included a bonding
study, was that the child would be greatly harmed by the loss of the parental
relationship. By contrast, in
102, 125, where there was no bonding study or other expert evidence of
detriment, the court concluded that the undisputed fact that the children loved
the mother was insufficient to establish the exception.
Here, the undisputed
evidence is that A.R had a substantial positive emotional attachment to
mother. Mother exhibited extraordinary
efforts to reunify with A.R. and was thwarted only by father’s conduct. Mother, herself a dependent child, was in
full compliance with her case plan. She
attended parenting and domestic violence classes, in addition to individual
therapy. Mother did this while attending
high school and participating in after school sports. DCFS initially recommended placing A.R. in
mother’s care, stating that A.R. was stable with mother, and mother completed
all her services. That recommendation
changed only after father threatened mother when she confronted him about his
two children born by other women. Then
mother failed to report to the social worker that father sat next to mother in
court and pinched her notwithstanding a restraining order, and when confronted
with these facts mother did not characterize father’s conduct as domestic
violence.
Mother’s parental rights
cannot be terminated based on father’s conduct toward her and his violation of
the restraining order. Mother and father
have no ongoing relationship and even assuming mother minimized father’s
abusive conduct, there was no evidence that such minimization ever placed A.R.
at risk of harm. Under these
circumstances, the trial court erred in finding the section 366.26,
subdivision(c)(1)(B)(i) exception to the preference for adoption did not
exist. We therefore reverse the order
terminating parental rights and remand to the trial court for further
proceedings.
title="">[5]
We make one additional
observation. On October 11, 2011, the
date of the .26 hearing in this case, A.R. and J.R. were at different stages of
the dependency process: reunification services had been terminated as to A.R.,
but J.R. had been a dependent child for less than six months and reunification
services were still ongoing as to him.
(See § 361.5, subd. (a)(1)(B) [for child under three years of age
at time of removal, no less than six months but no more than 12 months of
reunification services].) J.R. is now 18
months old and it has been more than 12 months since he was declared a
dependent child. The trial court may
find it appropriate to hold future hearings for the two children at the same
time.
DISPOSITION
The order
terminating parental rights is reversed.
RUBIN,
Acting P. J.
WE CONCUR:
FLIER,
J.
GRIMES,
J.
future undesignated statutory references are to the Welfare and Institutions
Code.
had requested that A.R. be placed with paternal grandmother so that A.R. would not be exposed to the recurring
domestic violence between the maternal grandparents.
