In re Chloe J.
Filed 5/8/13 In
re Chloe J. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
>
In re CHLOE J. et al., Persons Coming Under the Juvenile Court Law. | |
TULARE COUNTY HEALTH & HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. PHILLIP J., Defendant and Appellant. | F066199 (Super. Ct. Nos. JJV064753A, JJV064753B) |
THE COURT
name="_ftnref1" title="">*
APPEAL from
an order of the Superior Court of
County. Jennifer Conn Shirk, Judge.
Neale B.
Gold, under appointment by the Court of Appeal, Defendant and Appellant.
Kathleen
Bales-Lange, County Counsel, John A. Rozum and Carol E. Helding, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Phillip J.
(father) appeals from an order of the juvenile court terminating his parental
rights to his children, Chloe and Phillip, Jr.
Father contends that the juvenile court erred in terminating his
regular visitation with his children and they would benefit from continuing
their relationship with him. We
affirm.
STATEMENT OF THE CASE AND FACTS
Prior History
In 2005,
father, who at the time had a lengthy arrest record (driving under the
influence, unlawful sex with a minor, burglary and drug charges), was
incarcerated when his child Alexis, born in 1998, was the subject of a
dependency petition. Father was released
in May of 2005; Alexis was placed with him in September 2005. Father was incarcerated more than once after
2005 on various charges. Alexis, a
half-sibling to the children at issue here, is not included in this
appeal.
Circumstances Leading to Chloe’s Dependency
By 2009,
father had another child, Chloe, born in November of that year. Chloe’s mother was the subject of various
referrals for abuse or neglect and did not have custody of her older child
Jordan because of her abusive relationships, drug use and unstable
housing.
Chloe came
to the attention of the Tulare County Health and Human Services Agency (agency)
in March of 2010, when she was four months old.
A referral to the agency alleged that father had been arrested for
and father used drugs. An agency
investigation determined that father was incarcerated on various charges,
including corporal injury to a spouse.
Mother declined agency services and the referral was closed.
Section 300 Dependency Petition
(Chloe)
Two months
later, in May of 2010, the agency received another referral, again alleging
that mother used drugs. During the
investigation, both mother and father admitted to the use of methamphetamine
and marijuana and the domestic violence that led to father’s arrest in March of
2010. Mother tested positive for
methamphetamine and marijuana and Chloe was removed. A section 300 petition was filed May 27,
2010. At the time, Chloe was six months
old and father was still incarcerated.
Jurisdiction/Contested Disposition Hearing (Chloe) July 1, 2010
The
petition was sustained and family reunification services ordered for mother and
father. Upon his release, father was
allowed twice a week supervised visits with Chloe. The court specifically found that mother was
not an appropriate supervisor for father’s visits.
In July of
2010, Chloe was placed with mother at her residential
substance abuse program. Less than a
month later, mother left the program, leaving Chloe behind. Chloe, now eight months old, was again
detained.
387 Petition and Detention/Jurisdiction/Disposition Hearings (Chloe) July 29,
2010; August 19, 2010; and September 1, 2010
On July 28,
2010, a section 387 petition was filed.
Father remained incarcerated. The
petition was sustained and family reunification services again ordered. Father was out of custody by August of 2010
and given twice a week supervised visits with Chloe.
Six-Month Review Report and Hearing (Chloe) January 11, 2011
By the time
of the December 15, 2010, six-month review, Chloe had changed placements three
times and was adjusting well to a fourth foster care placement. Chloe’s foster mother reported no concerns as
to her health and development.
Father
continued to participate in services, including a domestic violence program and
parenting education classes, substance abuse treatment, and random drug
testing. Father attended supervised
visits with Chloe and she was happy to see him.
Mother was not compliant with her services.
At the
January 11, 2011, contested review hearing, the juvenile court ordered that
family reunification services continue for both parents. Although the agency was granted discretion to
lift supervision as to father’s visits, it specifically found that father was
not an appropriate supervisor for mother’s visits. The court cautioned father that if mother did
not comply with her services, he would have to make “a choice†between mother
and Chloe.
Twelve-Month Review Report (Chloe)
In a report
prepared in anticipation of the 12-month review hearing, the social worker
noted that, by April of 2011, Chloe had bonded well with her foster parents and
family. While she referred to her foster
parents as “mommy†and “daddy,†she also called father “daddy.†Mother and father continued to visit Chloe
weekly and Chloe recognized them and was happy to see them, but displayed no
separation anxiety when the visits ended.
An adoption assessment recommended a plan of adoption with Chloe’s
current caretakers if the parents did not reunify within the next six months.
Father was
compliant with his case plan and demonstrated good progress. The agency recommended termination of
mother’s services and discretion to return Chloe to father under family
maintenance after successful extended unsupervised visits. The social worker informed both father and
mother that if Chloe were returned to father, mother had to move out of the
house, which mother agreed to.
In May of
2011, father married mother, who was pregnant with their second child, due in
July of 2011. Mother tested positive for
methamphetamine more than once and was not compliant with her case plan.
Section 300 Petition (Phillip, Jr.)
Phillip Jr.
was born four weeks premature in June of 2011.
A section 300 dependency petition was filed and Phillip, Jr. was placed
with father. Weekly supervised visits were
ordered for mother; father was not to supervise the visits.
Contested 12-Month Review Hearing (Chloe) July 8, 2011
At the July
8, 2011, contested 12-month review hearing, mother testified that she and
father were married, but that she had moved out of the house to live with her
aunt. The juvenile court found that
father had made substantial progress and family reunification services were
continued for father while Chloe remained in foster care. Chloe was now 20 months old.
On July 28,
2011, the section 300 petition for Phillip Jr. was sustained. Father continued to do well, having completed
parenting education and participating in a domestic violence program, substance
abuse treatment and drug testing. Father
had a good support system and agreed that the only contact mother would have
with the children would be through the agency’s instruction. Father was willing to separate from mother in
order to have custody of Chloe and Phillip Jr.
Jurisdiction/Disposition Hearing (Phillip, Jr.) July 28, 2011
The
juvenile court ordered that Phillip Jr. remain with father under family
maintenance. No services were ordered
for mother.
Mother’s Section 388 Petition
On the eve
of the 18-month review hearing, mother filed a section 388 petition requesting additional
services. The juvenile court found no
changed circumstances and denied the petition.
18-Month Review (Chloe) and Section 364 Review (Phillip Jr.) November
18, 2011
The report
prepared in anticipation of the 18-month review hearing stated that father
continued to participate in his case plan.
He completed a substance abuse program, participated in co-dependency
counseling, completed 44 out of the 52 required domestic violence classes,
consistently tested clean and earned unsupervised daytime visits with
Chloe.
At the
November 18, 2011, combined hearing, father asked the juvenile court to
consider returning both children to him and terminating dependency. Father had received 18 months of services,
during which he demonstrated growth and compliance with court ordered
services. According to the social
worker, he had provided excellent care for Phillip Jr., maintained regular
visits with Chloe, and exhibited a “strong bond†with both children.
The
juvenile court found father’s progress substantial and ordered Chloe returned
to him under family maintenance. By now
Chloe was two years old and had been in out of home placement since she was six
months old.
Family Maintenance Review Report and Hearing, May 4, 2012
The report
in anticipation of the May 4, 2012, status review hearing stated that father
was doing well. He lived in a motel room
with the children, had food and operating utilities, and he worked full-time
while his adult sister cared for the children.
Father received cash assistance, food stamps and Medi-Cal for the
children, who appeared healthy and well cared for. Father told the social worker he accepted
responsibility for his past actions and was now focused on his children and did
not plan to reunify with mother.
The agency
recommended that father be granted sole legal and physical custody of the
children and that dependency be terminated.
But the juvenile court disagreed and continued the children as
dependents and father on family maintenance.
On May 3, 2012, the day before the
scheduled review hearing, father, mother and both children registered at a
local motel. On May 9, 2012, five days
after the hearing, father was arrested on burglary charges and incarcerated
after officers found him hiding in a commercial building near the motel. Three days later, the children were located
in a car with mother, who, although she admitted to using methamphetamines
earlier that day, was driving. Mother was
arrested for possession of an illegal substance. The children were again detained.
Section 387 Detention Petition and Hearing, May 21, 2012
On May 17,
2012, a section 387 petition was filed.
At the time, father was again incarcerated.
The
petition stated that father had allowed mother to have contact with the
children in violation of court orders.
Neither mother nor father advised the agency of either of their arrests
or that the children were not in father’s custody.
Father
denied facilitating contact between mother and the children and denied residing
with her, but ultimately admitted to leaving the children in mother’s care
because he had no one else to care for them while he worked.
The agency
recommended no further services for father and that a section 366.26 hearing be
set.
Contested Section 387 Jurisdiction/Disposition Hearing, June 21, 2012
On June 21,
2012, a contested section 387 hearing was held.
Father was incarcerated and not present, but counsel made an offer of
proof that father would testify that on May 7, 2012, the day father was
arrested, he left the children with a babysitter named Jamie.
The
juvenile court sustained the section 387 petition and denied father further
services. A section 366.26 hearing was
set. Father was allowed every other week
supervised visits with the children, if allowed by the custody facility. Once released, he was allowed twice a week
supervised visits.
Father was
informed of and served notice of his right to seek writ review. No writ petition was filed.
Section 366.26 Termination Hearing, October 31, 2012
A report
prepared in anticipation of the October 12, 2012, section 366.26 hearing stated
that, because father was incarcerated in a facility that did not permit contact
visits, Chloe and Phillip Jr. had not seen their father for six months. The children were placed with their maternal
great aunt who had cared for them off and on since birth and was willing to
pursue adoption. The children had a
strong bond with the maternal aunt and she provided them a nourishing and
healthy environment. This was Chloe’s
tenth placement and Phillip Jr.’s fourth.
The adoption assessment found the children, who were young and in good
health, to be adoptable. Termination of
parental rights was recommended.
At the
contested section 366.26 hearing, father was present with counsel. He testified that he had been incarcerated
for the past six months and not able to visit the children. According to father, he would be released in
three days and wanted to continue his relationship with the children.
The
juvenile court took judicial notice of the “entire†case file and found that
Chloe and Phillip Jr. were adoptable. It
found that father did not meet his burden of establishing that the parent-child
benefit exception to termination of parental rights applied. The juvenile court terminated father’s
parental rights.
DISCUSSION
Father
contends that substantial evidence supported a finding that he shared a strong
and beneficial bond with his children, pursuant to the section 366.26,
subdivision (c)(1)(B)(i) statutory exception to termination of his parental
rights. We disagree.
Applicable Law
Once
reunification services are terminated, a parent’s interest in the care,
custody, and companionship of his or her child is no longer paramount. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.)
Rather, the focus shifts to the child’s need for permanency and
stability. (Ibid.) When a court has not
returned an adoptable child to the parent’s custody and has terminated
reunification services, adoption becomes the presumptive permanent plan. (See In
re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) We note that father does not challenge the
juvenile court’s finding that Chloe and Phillip, Jr. were adoptable. Considering its findings of adoptability, the
juvenile court had to terminate parental rights unless it found one of the
statutory exceptions to the preference for adoption applied. (§ 366.26, subd.
(c)(1)(B)(i)-(vi).)
The
statutory exception urged by father provides that once a child is found to be
adoptable, parental rights must be terminated unless the court finds that
termination would be detrimental to the
child 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).) We note that it is the
parent’s burden to prove the exception.
(Evid. Code, § 500; In re
Erik P. (2002) 104 Cal.App.4th 395, 401.)
The
parent-child relationship exception occurs when a significant parent-child
relationship is found to exist. (
567, 574.) The juvenile court must then
engage in a balancing test, juxtaposing the quality of the relationship and the
detriment involved in terminating it against the potential benefit of an adoptive
family. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; see also
1145, 1154-1156.)
Interaction
between the natural parent and the child will always confer some incidental
benefit to the child. (
at p. 575.) But a showing that the child
would derive some benefit from continuing a relationship maintained during
periods of visitation with the parent is not sufficient where that relationship
does not meet the child’s need for a parent.
(In re Jasmine D., supra, 78
Cal.App.4th at pp. 1348, 1350.) A
parent’s failure to progress beyond monitored visitation with a child and to
fulfill a “meaningful and significant parental role†justifies an order
terminating parental rights. (
1093, 1109.) “It would make no sense to
forgo adoption in order to preserve parental rights in the absence of a real
parental relationship.†(
1350.)
The factors
to be considered when looking for whether a relationship is important and
beneficial are “(1) the age of the child, (2) the portion of the child’s life
spent in the parent’s custody, (3) the positive or negative effect of
interaction between the parent and the child, and (4) the child’s particular
needs.†(In re Angel B. (2002) 97 Cal.App.4th 454, 467, fn. omitted.) “[F]or the exception to apply, the emotional
attachment between the child and parent must be that of parent and child rather
than one of being a friendly visitor or friendly nonparent relative, such as an
aunt.†(Id. at p. 468.)
Standard of Review
Because
there is some confusion by the parties about the appropriate standard of
review, we set it out in detail here. On
appeal after a court has rejected a parent’s effort to establish the exception,
two different standards of review apply.
(See In re K.P. (2012) 203
Cal.App.4th 614, 621-622; In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314.)
Since the parent must first show the existence of a beneficial parental
relationship, which is a factual issue, we uphold a court’s express or implied
finding that there is no beneficial relationship if supported by substantial
evidence. (In re K.P., supra, at p. 621; In
re Bailey J., supra, at p. 1314.)
More specifically, a challenge to a court’s failure to find a beneficial
relationship amounts to a contention that the “undisputed facts lead to only
one conclusion.†(In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish
the existence of a beneficial parental relationship, a substantial evidence
challenge to this component of the juvenile court’s determination cannot
succeed. (In re Bailey J., supra, at p. 1314.)
The second
requirement for the exception is that the beneficial parental relationship
constitute a “compelling reason for determining that termination would be
detrimental ….†(§ 366.26, subd.
(c)(1)(B); In re K.P., supra, 203
Cal.App.4th at p. 622.) Although
grounded in the facts, the court’s determination of this issue 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. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review
applies.†(In re Bailey J., supra, 189 Cal.App.4th at p. 1315; see also
For
instance, when a parent has had custody of the children and visited
consistently when he did not have custody, and had an established parental bond
recognized by the agency worker’s, substantial evidence supports the first
prong of the application of the statutory exception. (In re
K.P., supra, 203 Cal.App.4th 614, 622.)
The determination then becomes whether under the facts of the case,
there is a compelling reason for the court to order a plan other than adoption,
and whether the court abused its discretion in failing to do so. (Id.
at pp. 622-623.) In simplest terms, the
establishment of the beneficial parental bond exception depends upon a parent
having kept significant contact through visitations with his child, and the
child having developed such a beneficial bond that it would be detrimental to
sever it. The benefit from continuing
with the parent would outweigh any benefit to the child derived from his or her
adoption. (§ 366.26, subd.
(c)(1)(B)(i); In re Autumn H., supra,
27 Cal.App.4th 567, 575.)
Father
argues he established both prongs of the parental relationship exception, and
that the record in this case is supportive that his children would best benefit
from a continued relationship with him.
Analysis
We conclude that father’s sporadic
contact with his children failed to satisfy even the initial prong of the
beneficial parent-child relationship exception to termination of his parental
rights. It is undisputed that father had
not visited or contacted the children for about six months prior to the section
366.26 hearing. But father argues that
he was unable to visit his children during the months preceding the hearing
because the facility where he was detained would not allow it; that he was
going to be released three days after the hearing and could resume his
relationship with his children; and that his children had lived with him for a
significant period prior to his arrest (and the children’s most recent removal
and detention).
We note
that, although father’s latest incarceration did not allow contact visits with
his children, there is nothing in the record to suggest that he otherwise tried
to maintain contact with the children during that time period. Six months is a significant portion of both
Chloe and Phillip, Jr.’s lives. The
record does indicate that father attended scheduled visits with the children
when he was not incarcerated and that the visits went well.
As for
having custody of the children, the record shows that Chloe had been in
father’s custody for only about 10 months, less than a third of her life. Prior to the filing of the original section
300 petition, Chloe had lived with father for about four months (from birth to
father’s incarceration March of 2010).
She then lived with mother for two months, in foster care for about 18
months, and again with father for about six months, before she was again
detained. Phillip, Jr. lived with father
for about the first 11 months of his life, before he was detained.
Even if we
were to find that father maintained regular visitation with the children,
satisfying the second prong requires the parent to prove that “severing the
natural parent-child relationship would deprive the child of a
attachment such that the child would be greatly
harmed. [Citations.] A biological parent who has failed to reunify
with an adoptable child may not derail an adoption merely by showing the child
would derive some benefit from
continuing a relationship maintained during periods of visitation with the
parent.†(In re Angel B., supra, 97 Cal.App.4th at p. 466.) Evidence that a parent has maintained
“‘frequent and loving contact’ is not sufficient to establish the existence of
a beneficial parental relationship.†(
at pp. 1315-1316.)
“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.â€
(In re Aaliyah R. (2006) 136
Cal.App.4th 437, 449.) A beneficial
relationship is one that “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.†(
at p. 575.) The existence of this
relationship is determined by “[t]he age of the child, the portion of the
child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect
of interaction between parent and child, and the child’s particular needs
….†(Id.
at p. 576.)
Here, we
note that the children, still very young at the time of the termination
hearing, spent a good deal of time being shuffled back and forth between
parents and out of home placements due to father and mother’s behavior. By the time of the termination hearing, there
is no evidence in the record that the children would suffer detriment if the
parent child relationship was severed.
Instead, both children were placed with a relative who had known them
from birth and was committed to adoption.
The children were assessed to have a strong bond with the prospective
adoptive parent, who consistently met the children’s needs and continued to put
those needs “as a top priority in her life.â€
The prospective adoptive parent also had the help and support of her
adult daughter and son-in-law, “who are both very active in the children’s
lives.â€
Father
claims that a beneficial relationship existed, pointing to the social worker’s
statement which stated, “point blank, that termination of parental rights would
be detrimental to Chloe because of her regular and beneficial contact with her
father.†But this assessment was taken
from an adoptions consultation staffing report done in May of 2011, almost a
year and a half before the termination hearing.
By the time of the termination hearing, the agency argued that the
beneficial relationship exception did not apply, citing the case history and
the repeated attempts to place the children with father, the services provided,
and the repeated failures on father’s part to protect the children by keeping
mother from them and his inability to keep from participating in behavior
leading to arrest and incarceration.
We find
that there is substantial evidence to
support the juvenile court’s findings that Chloe and Phillip, Jr. would not
suffer detriment from termination of the parent-child relationship, and that
maintaining the relationship would not promote their well-being “to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.†(
681, 689.) Although father has
demonstrated that he cares for his children and has an affectionate
relationship with them, because he continues to subject them to mother and
because he cannot himself refrain from criminal behavior, he has not
demonstrated an ability to provide the children, over the long-term, with a
stable, safe and loving home environment.
Accordingly, the juvenile court properly found there was no beneficial
parental relationship sufficient to overcome the statutory preference for
adoption.
The order
terminating parental rights is affirmed.
name="_ftn1" title="">* Before
Kane, Acting P.J., Franson, J., and Peña, J.
