In re B.S.
Filed 2/6/13 In re B.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.S. et al., Persons Coming Under the Juvenile Court
Law.
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Plaintiff
and Respondent,
v.
J.S. et al.,
Defendants
and Appellants.
E056691
(Super.Ct.Nos.
J240050 & J240051)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Barbara A. Buchholz, Judge.
Affirmed.
Marissa
Coffey, under appointment by the Court of Appeal, for Defendant and Appellant
J.S.
Diana
W. Prince, under appointment by the Court of Appeal, for Defendant and
Appellant J.C.
Jean-Rene
Basle, County Counsel,
and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
J.S.
(father) and J.C. (mother) appeal from an order of the juvenile court
terminating their parental rights to
B.S. (B.) and D.S. (D.) Father contends
the juvenile court erred by failing to make a finding of parental unfitness by
clear and convincing evidence before terminating his parental rights. Mother contends the juvenile court erred when
it found the parental bond exception to adoption did not apply. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Detention
In
April 2010, the Los Angeles County
Department of Children and Family Services (Department) filed a petition on
behalf of the children under Welfare and Institutions Code,
after a police officer found D., then 23 months old, wandering alone in the
street. The detention report stated that
the officer who had found D. took him to the hospital with mother because he
had a bruise in the shape of a handprint on his face. The social worker met them at the hospital,
and mother admitted she had slapped D. after he had dumped a can of powdered
formula on the floor. She explained that
when he tried to run from her, she grabbed him by the legs, and he had then
suffered a rug burn on his face. The
social worker observed that D. was very active—he climbed all over the
equipment, opened and shut drawers and cabinets, hit the glass door of the room
with his hands, and tried to talk to hospital staff and passersby. Mother did not appear to have control over
his behavior, and he was not afraid of her.
Mother was cited for child endangerment.
Mother had called the police about two months earlier when D. had locked
her out of the house.
Mother
told the social worker she had an open case after she brought D. to the
hospital because he had drunk motor oil.
She was taking parenting classes.
Father was incarcerated for possession of a knife or dagger while on probation
on drug-related charges, and mother seemed overwhelmed caring for D. and B.
(then three weeks old) by herself. The
social worker visited the home and found tools within reach of the children and
a lamp on the floor with no protective shade.
The
Department filed a relative caretaker information sheet for the paternal grandparents. The paternal grandfather (hereafter,
grandfather, attached a letter stating that child abuse charges had been filed
against him in 2003, but the charges had been dismissed in the interest of
justice. The grandfather explained that
father, then a teenager, had been prescribed medication for a bipolar condition
but had not been taking the medication.
When the grandfather questioned him, father ran out the door. The grandfather called the police, who found
the father with a cut on his head, and father told the police that the
grandfather had caused the cut, although he also told three other stories. A year earlier, father had intentionally
jumped out in front of a car. The
grandfather believed some of father’s numerous instances of mental instability
were due to his use of methamphetamines, other drugs, and alcohol.
At
the detention hearing, the juvenile
court found a prima facie case and detained the children.
Jurisdiction/Disposition
The Department
filed a jurisdiction/disposition report on April 29, 2010. The social worker stated the children had
been placed with the paternal grandparents and were doing well. Mother visited the children frequently. She was participating in parenting classes
and was working with the social worker to obtain counseling services.
The Department
noted the family had a prior history:
two allegations of general neglect and one of caretaker absence in 2008,
all of which were disposed of as unfounded or with no conclusion. The Department had opened a voluntary family
maintenance plan in October 2009, after D. apparently ingested motor oil while
mother had been alone with him, although father had left the oil in the yard. At the hospital where D. was examined, the
police were called when the parents argued, and father was “irritable and
non-compliant†with the officer. The
officer called for backup, and father continued to be argumentative and refused
to give information about D. “until he had a lawyer.†He told mother to “shut the fuck up,†and he
threatened to spank D. for noncompliance with him.
During the family
maintenance case, the parents’ home was dirty and had safety hazards, including
exposed electrical wires and a clogged bathtub.
The family received more family maintenance services in December 2009,
and by January 2010, they had started to comply. However, in January 2010, D. locked mother
out of the house, and she had to call the police for help.
The
jurisdiction/disposition report noted that father had been arrested in 2004 for
arson, two burglaries, and sexual intercourse with a minor under 18. The disposition for the sexual intercourse
charge was not reported because father had been a minor at the time. However, the police report attached to the
jurisdiction/disposition report stated that father had raped a 17-year-old
friend while staying at her house. After
the incident, father stood in the middle of the street as if trying to commit
suicide and called the victim, inviting her to watch him commit suicide by
jumping off a bridge. In 2006, Father
was convicted of possession of a controlled substance for sale and receiving
stolen property, and he violated his probation in 2007. He was arrested in 2007 for disorderly
conduct/intoxication, but no disposition of the charge was reported. Father continued to be incarcerated following
a March 10, 2010, arrest for carrying a concealed dirk or dagger and a
probation violation. Father told the
Department he had no mental health history and had never had a
alcohol abuse but claimed he had been clean for a year.
At the
jurisdictional hearing, the court struck the allegations under section 300,
subdivisions (a)(1), (b)(3) and (b)(4), and (j)(1), (j)(2), and (j)(3), and
found true amended allegations under section 300, subdivision (b)(1) and
(b)(2), that mother inappropriately disciplined D. by striking his face with
her hand, and she failed to adequately supervise him, which resulted in him
wandering alone in the street. The court
declared the children dependents of the court, removed them from mother’s
custody, and ordered mother to participate in reunification services, including
a parenting program and individual counseling.
Because father was absent and in custody, his disposition hearing was
continued to June 14, 2010.
The Department
filed an updated status report stating that father had been sentenced to county
jail for possession of a dirk or dagger on May 5, 2010, and his expected
release date was September 7, 2010.
Father was still
incarcerated and was not present at his disposition hearing on June 14,
2010, but he was represented by counsel.
The juvenile court found father to be the presumed father of the
children. Although the court stated
father was a “nonoffending†parent, the court found that “[t]he children were
previously declared to be dependents of the court under [Welfare and Institutions
Code] section 300, subdivision (b), given the father’s incarceration at this
time. [¶] The court finds by clear and convincing
evidence that there is a substantial danger if the children were returned home
to the physical health, safety, protection, or physical or emotional well-being
of the children, and there are no reasonable means by which their physical
health can be protected without removing them from their father’s physical
custody. [¶] The children were previously removed from
their mother. [¶] The court orders the care, custody, control,
and conduct of the children to be placed under the supervision of the
department for suitable placement.†The
court ordered father to complete a parenting education program and to comply
with his probation and criminal court orders and ordered monitored visitation
for him.
C. Six-Month Review
The Department
filed a six-month review report in November 2010. Mother had completed a 30-hour parenting
class, was participating in counseling, and was taking prescribed medication
for mood swings and to help her focus.
She attended adult daycare, where she learned independent living
skills. She was eligible for adult
services through the Regional Center, but she had difficulty remembering to
attend her intake appointments. She
received Social Security disability benefits, but she was unsure of the nature
of her disability. Mother had not signed
an authorization for release of information from her counselor.
Father was
released from custody on July 29, 2010, and while incarcerated, he completed
60 hours of parent education and 60 hours of a cognitive skills program. He was on probation until May 2013, with
conditions that included seeking and maintaining gainful employment or
attending school, counseling, drug testing, attending Narcotics Anonymous/Alcoholics
Anonymous meetings, and participating in a work release program. The social worker provided referrals to
father to attend individual counseling, but father stated he did not need
counseling and did not want to attend.
The social worker also contacted him monthly and provided him with
additional reunification services, such as monthly bus passes, continued
support to comply with court orders, weekly visitation, referrals for financial
assistance, referral to a family reunification program, referrals for homeless
assistance, referrals for counseling services, and collateral contacts.
The parental
grandparents reported problems with parents during visitation. Father complained they had trimmed D.’s hair
without permission, and father wanted the grandparents to feed the children
only specific foods. During visits,
mother often acted like another child, running around and throwing a ball in
the house. Mother had become angry and
threatening when she wanted to give D. a bath on a cold day just before they
had to leave the house, and father had yelled at the grandfather. In October, the grandparents stated they were
no longer willing to have visitations take place at their home.
Father’s monitored
visits with the children began upon his release from jail. The monitors reported some concerns,
including that father let D. hit him on the head and dig his nails into his
back, and father let D. play with the drinking faucet and throw water all over
the office floor. Even though father had
completed a parenting class, it did not appear that he had fully developed an
understanding of appropriate parenting.
The social worker reported concerns about father’s parenting skills,
unstable housing situation (the parents had been evicted, had been homeless for
a time, and were then renting a room), limited resources, and possible mental
health issues.
At the six-month
review hearing, the juvenile court found that parents had partially complied
with their case plans. The court ordered
a minimum of four hours per week of monitored visitation.
D. 12-Month Review
The Department
filed a 12-month review report in May 2011.
The parents had completed parenting programs, but their parenting skills
were inappropriate—father was angry and controlling, and mother was unable the
handle the children alone. The parents
did not have a support system. Mother
was no longer attending adult daycare.
In her individual counseling, the therapist worked on independent living
skills, not on child neglect or safety issues.
Mother still had not executed a release, so the social worker was unable
to obtain information from her therapist.
The social worker stated that the parents were very difficult to work
with and refused to accept services or guidance from the Department. The parents refused to have any contact with
the grandparents and did not inquire of the grandparents about the children’s
well being or problems. The parents had
attended monitored visitations regularly, and the monitors reported various
concerns, including that in one visit, father had little interaction with B.,
while mother had little interaction with D.
In other visits, mother read a magazine rather than pay attention to the
children; the parents failed to bring diapers and snacks for the children; father
acted controlling of mother, telling her what she could or could not say to the
children; father said he felt his social worker was a “‘Piece of Shit’†and
then said he felt it was a violation of his First Amendment rights that he was
not allowed to “cuss during his visits with his childrenâ€; father said if D.
were at home, father could teach him the difference between a real gun and a
toy gun; mother became frustrated when D. would not listen to her, and she had
no control over him; and father read to three-year-old D. from a trigonometry
book while D. squirmed to get down.
At the 12-month
review hearing in June 2011, the juvenile court found that parents had
partially completed their case plans.
The court ordered that part of mother’s visitation with D. would be
unmonitored and ordered continued reunification services, including family
counseling and play therapy for both children, and the court ordered parents to
attend a parenting class specifically for toddlers.
E. 18-Month Review
In August 2011, the
case was transferred from Los Angeles to San Bernardino County. In December 2011, the San Bernardino County
Children and Family Services (CFS) filed a report for the 18-month review
hearing. The parents had each completed
two parenting education programs but both still lacked the necessary skills to
parent the children. During visits,
father became upset with D., which caused D. to become more defiant. Father appeared to be unable to understand or
comfort D.’s emotions and did not appear to understand the developmental stages
of children. Father displayed angry and
controlling behavior toward mother, D., and the social worker, and he
frequently spoke harshly to mother in the children’s presence. Father told his probation officer he was
frustrated by not getting his children back and did not know what he would
do—“[m]aybe ‘something violent.’†He
said he knew where the social worker lived, and he would do a “‘peaceful
demonstration’†in front of the social worker’s house. He later seemed remorseful about his
behaviors. His probation officer told
him to stay away from the social worker’s house and an incident report was made
to the police department.
Father had been
engaged in individual counseling since
September 13, 2011, and was focusing on conflict management and dealing
with his feelings related to the removal of his children. He had completed nine sessions, and his
counselor believed he would benefit from more.
He completed a 12-hour parenting course on November 3, 2011. He started random drug testing in August and
had taken seven tests with negative results.
Father’s parents reported that father had been diagnosed as bipolar when
he was a teenager and had been evaluated several times under section 5150. He had been hit by cars twice and possibly
suffered a brain injury; the grandparents suggested he had jumped out in front
of the cars. The grandparents stated
father made bombs as a teenager, and he had written a letter stating he was a
white supremacist working for the Nazis.(E055253 CT 476, 500} During a visit in September, father arrived
with open scrapes on his face and forearm, and he told the monitor he had been
hit by a car earlier that day.
Mother had also
been participating in individual counseling.
She disclosed she had not been taking her medication, and she was
experiencing delusions and hallucinations that signaled the onset of a
psychotic break. Mother told the
counselor that father instructed her not to take her medications because she
did not need them. Mother visited the
children regularly, but she was easily distracted, often had no control over
the children, and did not always interact with them.
Christine Kaye
Campbell, Ph.D., filed a report of her psychological evaluation of father. Father told her his own father had been
abusive and had punched him in the nose and struck him in the head. He was prescribed Ritalin as a child for
Attention Deficit-Hyperactivity Disorder, and he had a history of
methamphetamine use. He claimed he had
been clean from drugs since November 2009 after attending a 12-step
program. He was admitted to a
psychiatric hospital for three days in 2001 but did not continue with any
treatment and refused to take prescribed medications. He had been diagnosed with bipolar
disorder. Dr. Campbell also diagnosed
father with bipolar disorder, as well as antisocial personality disorder. In addition, Dr. Campbell diagnosed
mother with bipolar disorder and mild mental retardation.
At the 18-month
review hearing, father’s counselor, Olivia Sevilla, a clinical social worker,
testified that she had nine sessions with father, and she had taught parenting
classes father had attended. Father
appeared to understand the material concerning “developmentally what is
appropriate for the age of his children, what the expectations might be of a
parent, . . . how to set up household rules for a child of that
age, how to work together with the parent partner . . . to make sure
that the child has some structure in the house.†She had requested 12 further sessions, and
she believed father could make more progress.
He told her he had been diagnosed with bipolar disorder but that he
disagreed with the diagnosis. She
believed he was depressed. She had never
seen him interact with his children, and she “would not be in a position to
make [a] recommendation†that he was ready to parent the children.
Father testified
he did not believe the prior diagnosis of bipolar disorder was accurate. Counsel for CFS asked if father was
requesting the court to return the children to his care that day, and father
replied, “I don’t believe that’s possible, sir.†When asked about his plan for providing care
for the children if they were returned to him, he stated that he earned $26 per
hour doing structural reinforcement, and he was enrolled in a college that had
a child care center the children could attend.
He also proposed offering room, board, and wages for someone to live in
the home to help mother care for the children.
He admitted that he had a problem with anger in the past but did not
currently have a problem with anger. He
admitted that when the children were removed, he was in jail for possession of
a spring-loaded knife while he was on probation for a drug offense.
The court noted
that as a result of the transfer it had given the parents additional time to
complete services, so the parents had received 22 months of services. The court found the parents had been provided
with reasonable services but failed to make substantive progress in their case
plans. The court further found that
custody with the parents would be detrimental to the children, and there was no
substantial probability the children could be returned to them within the
statutory time frame. It terminated
reunification services and set a section 366.26 hearing.
Father filed a
writ petition challenging those orders.
(Case No. E055514.) In an
unpublished opinion filed June 19, 2012, this court concluded that
substantial evidence supported the juvenile court’s finding that father had
been provided with reasonable services, but father either failed to take full
advantage of those services or failed to make substantive progress with them.
F. Interim Events and Temporary
Restraining Order
At
a supervised visit in February 2012 at CFS offices, father made negative
comments about “‘the system’â€; chastised D. when he referred to his grandmother
as “Mom†and told D. to call her by her first name; frequently referred to
being wronged by the system; told D. that he was going to be on television;
brought a book which he told the social worker related to Muslims and the CIA
and tried to explain that to D.; continued to have conversations with D. that
were not age appropriate; and made inappropriate and derogatory comments about
the grandmother and others. When the
social worker said they had nine minutes left to visit, father responded,
“‘Enough time to blow up the world.’â€
CFS requested that father’s visitations with the children be terminated.
CFS filed a report
in March 2012 stating the grandmother had reported that the children tended to
act out before and after being brought to the CFS offices for visits. The social worker had observed that the
children were not problematic in the grandparents’ home. The social worker believed two-hour visits
were too long for B. because she got tired and had emotional meltdowns. D. also had tantrums during the visits, and
the parents were inconsistent in supervising him. The juvenile court reduced visitation for the
parents to one hour per week at the CFS offices, and the court ordered father
not to discuss the proceedings with the children.
In April 2012, CFS
filed a motion for a restraining order on father. In the declaration in support of the motion,
a social worker stated that father had said to a security guard on duty at the
CFS office, “‘I have a lot of people behind me and social workers have and will
die.’†He told the security guard to
carry a weapon and that she would see him “on the news soon,†because they were
losing their parental rights, and he was going to hang himself in front of the
court with a sign above his head that said he would die for his kids. He told the security guard he knew how to
make weapons of mass destruction such as grenades, and he repeated that the
security guard should carry a weapon on Mondays, the day of his supervised
visits. Father stated that the social
workers should walk around the building because he needed target practice. A report of the conversation had been filed
with the sheriff’s office. The social
worker’s declaration also referred to father’s prior statements to his
probation officer saying he might do something violent and stating he knew
where the social worker lived.
Following a
hearing, the juvenile court issued a temporary restraining order prohibiting
father from having any contact with the children, the CFS office, or the social
workers but permitting him to contact CFS supervisors by telephone. The order was later amended to include the
grandparents among the protected persons.
The order expires in April 2015.
G. Section 366.26 Hearing
CFS filed a
section 366.26 report in May 2012. The
report stated father had been arrested on April 13, 2012, for violating
probation. The children were in good
health but both were “very high energy.â€
B. appeared to have speech delays and tantrums. She failed a SART (Screening, Assessment,
Referral, and Treatment Program) assessment in communication and
personal-social development and was borderline in gross motor, fine motor, and
problem-solving skills. D. appeared to
be very bright and articulate but manipulative, and he failed a SART assessment
in the area of emotional development.
The grandparents wished to adopt the children, and there was a mutual
positive attachment developing between the children and the grandparents.
At the section
366.26 hearing, father testified that he had been incarcerated between
April 13 and June 26, 2012, and the restraining order against him
precluded visitation with the children.
He believed termination of parental rights would be detrimental because
D. had become upset when mother told him he could not call father. Mother testified she had been the primary
caregiver for the children before their removal. D. still called her “momma,†and both
children hugged her when they saw her and at the end of visits, and they had a
connection to one another. Following the
hearing, the juvenile court found the children adoptable, found no exception to
adoption existed, and terminated parental rights.
II. DISCUSSION
Request for Judicial Notice
CFS has requested
this court to take judicial notice of the following certified documents: San Bernardino County Superior Court criminal
case minute orders dated August 15,
October 3, and October 24, 2012, and case report for case No.
120800590 concerning father. The
documents reflect that charges are pending against father of a violation of
Penal Code section 18720 (possession of materials with the intent to make a
destructive device or an explosive, and father remains in custody with bail set
at $200,000. Those documents concern
postjudgment matters, and we find their contents unnecessary to our resolution
of the issues on appeal. We therefore
deny the request for judicial notice.
Father’s Appeal
Father contends
the juvenile court erred by failing to make a finding of parental unfitness by
terminating his parental rights.
1. Forfeiture
CFS contends
father has forfeited his challenge by “(1) failing to challenge removal of the
children from him at disposition, (2) failing to raise the issue by appealing
disposition, (3) failing to raise the issue in his writ after the section
366.26 hearing (case No. E055514), (4) failing to raise the issue during trial
at the section 366.26 hearing, and (5) failing to appeal the Permanent
Restraining Order against [him], prohibiting any contact with [B.] and [D.].â€
(Italics in original.) In
845 (Gladys L.), the court held that
because the father had raised a due process challenge, he had not forfeited his
contention on appeal that the juvenile court had failed to find parental
unfitness by clear and convincing evidence.
(Id. at p. 849.) Although, unlike in Gladys L., we find no due process violation, we will nonetheless
exercise our discretion to reach the issue on the merits.
2. Analysis
The United States
Supreme Court has established that parents have a fundamental interest in the
care, companionship, and custody of their children (Santosky v. Kramer (1982) 455 U.S. 745, 758) and due process
requires that before a state may permanently sever parents’ rights in their
children, findings of parental unfitness must be made by at least clear and
convincing evidence (id. at pp.
747-748). Our own Supreme Court has held
that California’s dependency system satisfies Santosky’s requirements
because before parental rights may be terminated, the juvenile court
and convincing evidence that the parent was unfit. (Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 254, 256.) We note that “California’s dependency scheme
no longer uses the term ‘parental unfitness,’ but instead requires the juvenile
court make a finding that awarding custody of a dependent child to a parent
would be detrimental to the child.
[Citation.]†(
1211 (P.A.).) Thus, “[a] finding of detriment to the child
is equivalent to a finding of parental unfitness. [Citation.]â€
(In re Jason J. (2009) 175
Cal.App.4th 922, 931, fn. 2.)
In
detention hearing, submitted to the juvenile court’s jurisdiction, and was
found to be a presumed father. The
father was not named in the petition, and there was no allegation he had abused
or neglected the child. (
The child remained in dependency for three years, during which father
never requested custody and never visited her.
However, at the section 366.26 hearing, the father appeared and
requested to reestablish his relationship with the child. The juvenile court denied the request and
terminated his parental rights. (
appeal, the court reversed, explaining that before the juvenile court may
terminate a presumed father’s parental rights, it must find by clear and
convincing evidence that he is unfit.
Because no allegation had been made that he was unfit, and because the
juvenile court never made such a finding, due process prohibited termination of
parental rights. (Id. at p. 848.) The court
further found that father did not forfeit his challenge by failing to raise the
issue sooner. (Id. at p. 849.)
Here, as in
as to father, and the juvenile court referred to father as nonoffending. However, unlike
in Gladys L., the juvenile court here
did find, by clear and convincing
evidence, that it would be detrimental to return the children to father’s
custody. Thus, Gladys L. is readily distinguishable. This case is more like P.A., in which the court rejected the argument that because the
juvenile court failed to make a finding that a father was unfit as a parent,
termination of his parental rights was precluded. Like in present case, the juvenile court in
hearing that “by ‘clear and convincing evidence there exists a substantial
danger to the children and there’s no reasonable means to protect them without
removal from the parents’
“‘reasonable efforts to prevent removal, and the custody of the children is
taken from the parents and placed in
the care, custody, and control of the department for placement with a
relative.’†(P.A., supra, 155
Cal.App.4th at pp. 1210, 1212.) Moreover,
the court in P.A. disagreed with
petition alleging unfitness of each parent was required before termination of
parental rights and thus rejected the father’s argument that “the detriment
finding at a disposition hearing must be related to a corresponding
jurisdictional finding.†(
court explained, “[A] child may be declared a dependent if the actions of
either parent bring the child within the statutory definitions of dependency. [Citations.]â€
(Ibid.; see also
361-362 [disagreeing with Gladys L.
and agreeing with P.A. on the same
point].)
To the extent
father argues the record does not support the juvenile court’s finding of
detriment, we draw every reasonable inference and resolve all conflicts in
favor of that finding. (
538, 545.)
abusing methamphetamine, other drugs, and alcohol. He had an extensive criminal history, as
recounted in the statement of facts, and he was in jail for a weapons charge
when the children were detained. The
family had three referrals with the Department in 2008, although the cases were
closed with no conclusion. In 2009, D.
ingested motor oil which had been left in their yard, and the parents initially
resisted voluntary family maintenance services.
Moreover, despite knowing of mother’s limitations, father made no
arrangements for an appropriate caretaker to help her care for the children
before his incarceration and left her alone to cope with a newborn and a
high-energy toddler. Although father
denied having a mental health history, the grandfather reported that father was
diagnosed with a bipolar condition as a teenager, and he had undergone a
72-hour evaluation after calling a suicide hotline when he heard voices telling
him to harm himself. We conclude
substantial evidence supports the juvenile court’s finding by clear and convincing
evidence at the disposition hearing that it would be detrimental to return the
children to father’s custody.
Father relies
primarily on three cases in addition to Gladys
L. to support his arguments:
532 (Frank R.); In re G.S.R. (2008) 159 Cal.App.4th 1202 (G.S.R.); and In re Z.K. (2011)
201 Cal.App.4th 51 (Z.K.).) Those cases are distinguishable and are
therefore not helpful to father.
In
of parental unfitness was not forfeited because the father had never been
advised of his writ rights and had not filed a writ. (Frank
R., supra, 192 Cal.App.4th at p.
539.) Here, father did file a prior
writ. Moreover, unlike in the present
case, there was no evidence in Frank R.
that the father was in custody, had a violent criminal history, or mental
issues. Finally, unlike in the present
case, the juvenile court in Frank R. did
not make a dispositional finding of detriment or an order removing the children
from the father. (Ibid.)
In
a nonoffending, noncustodial father’s rights in his sons. The court determined the record did not
support findings of detriment when the only evidence of detriment was based on
the father’s poverty and its consequences.
(G.S.R., supra, 159 Cal.App.4th at p. 1213.)
In the present case, in contrast, the juvenile court’s findings of
detriment were based on substantial evidence, as recounted above.
In
and despite diligent efforts, the mother did not know where the child was and
had no notice of the dependency proceedings.
Thus, she had no opportunity to appeal and was not involved in the
proceedings until just before the section 366.26 hearing. (Z.K.,
supra, 201 Cal.App.4th at pp. 57,
65.) Moreover, the court held that the agency
had erred in holding against the mother her noncompliance with a request that
she submit to a psychological evaluation when there was no evidence she had a
mental illness. (Id. at pp. 67-68.) Finally,
the juvenile court had made no finding of detriment. (Id.
at p. 69-70.)
We therefore
reject father’s challenge to the juvenile court’s order terminating his
parental rights.
C. Mother’s Appeal
Mother
contends the juvenile court erred when it found the parental bond exception to
adoption did not apply. Mother points
out she “engaged in all aspects of her case plan,†including completing a
parenting class, participating in individual counseling, attending adult day
care to learn independent living skills, and discussing with her therapist the
concepts presented in her parenting class.
She contends that her interactions with the children improved over time,
although she concedes she had difficulty handling their hyperactive behaviors
and was easily distracted.
If parents fail to
reunify with an adoptable child, the juvenile court must terminate their
parental rights and select adoption of the child’s permanent plan unless the
court finds that “a compelling reason for determining that termination [of
parental rights] would be detrimental to the child†because, among other
reasons, “[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 trigger the application of the parental
relationship exception, the parent must show the parent-child relationship is
sufficiently strong that the child would suffer detriment from its
termination. [Citation.]†(In re
Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)
CFS
does not dispute that mother satisfied the first prong of the exception—she
visited the children consistently throughout the dependency. We therefore focus on the second prong, which
“requires the parent to prove that ‘severing the natural parent-child
relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed.†(
635, 643.) In In re Autumn H. (1994) 27 Cal.App.4th 567, the court listed factors
that guide the juvenile court’s determination of whether the exception should
apply: the age of the child, the portion
of the child’s life spent in the parent’s custody, the effect of interaction
between the parent and the child, and the child’s particular needs. (Id.
at p. 575-576.)
The
Autumn H. factors militate in favor
of the juvenile court’s decision. B.,
now two and one-half years old, was only three weeks old when she was removed
from mother’s care, and D., now four and one-half years old, has spent less
than half of his life in mother’s care.
Mother and the children enjoyed many positive interactions during
visitation; however, B. remained somewhat distant from her. D. was happy to see her, called her “mommaâ€
and gave her hugs and kisses, but he did not show signs of distress when the
visits were over, and both children were happy to see their grandmother. Moreover, mother was frequently unable to
control the children during visits, and she did not follow up with
consequences, although over the course of the lengthy dependency, she did show
some improvement. With respect the
children’s particular needs, it appears B. has speech delays, borderline motor
skills, and diminished problem solving skills, while D. is deficient in his emotional
development, and both children throw tantrums.
Mother has not shown an ability to cope with those needs.
Mother
relies on In re S.B. (2008) 164
Cal.App.4th 289, in which a father complied with his case plan, maintained his
sobriety, and visited his daughter; however, his physical and emotional health
prevented him from reunifying with her.
A bonding study showed the child was moderately bonded to him, and she
loved him. The juvenile court terminated
the father’s parental rights, but the appellate court reversed, holding that
the bonding study showed the child’s “fairly strong†bond to her father. (Id.
at pp. 293, 295, 301.) Here, in
contrast, no bonding study was prepared.
B. was distant from the parents, and both children looked to their
grandparents for comfort and support.
Thus, S.B. is not helpful to
mother.
We conclude
substantial evidence supports the juvenile court’s finding that mother failed
to establish that her relationship with the children would promote their
well-being “to such a degree as to outweigh the well-being [they] would gain in
a permanent home with [a] new, adoptive parent[].†(In re
Brandon C. (1999) 71 Cal.App.4th 1530, 1534.)
IV. DISPOSITION
The
orders appealed from are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] On its own motion, this court has
incorporated the record in case No. E055514 with the record in the present
case, and the record in case No. E055514 incorporates the record in case No.
E055253.
name="_ftn2" title=""> [2] All further statutory references are to the
Welfare and Institutions Code.
