In re Daniel R.
Filed 3/11/13 In re Daniel R. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re DANIEL R. JR., a Person
Coming Under the Juvenile Court Law.
B241800
(Los Angeles
County
Super. Ct.
No. CK55893)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DANIEL R. SR.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of
County, Margaret Henry, Judge.
Affirmed.
Aida Aslanian, under
appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, County
Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds,
Principal Deputy County Counsel, for Plaintiff and Respondent.
_____________________________
This is the second time this court
has considered an appeal in this matter.
The first appeal was considered in appeal No. B226483, pertaining to
Crystal A. (“Motherâ€), the mother of minor Daniel R. Mother appealed from the dispositional order
of the juvenile court denying Mother reunification services pursuant to Welfare
and Institutions Code
name="_ftnref1" title="">
and (b)(11). The juvenile court’s
findings were grounded on failure to reunify with Daniel R.’s siblings
and Mother had not made a reasonable effort to address her drug problems that
led to the removal of those children, leading the juvenile court to conclude
that Mother’s parental rights should be terminated. Mother had argued the juvenile court’s dispositional order
was not supported by substantial evidence.
Mother asserted she had “worked to correct†her substance abuse
problems. This court rejected Mother’s
arguments and affirmed the order of the juvenile court in an opinion filed on
June 13, 2011. Daniel R. Sr. (“Fatherâ€)
peculiar to Father’s appeal. We
occasionally make reference to Mother’s prior appeal but only when context so
requires.
In the current appeal, Father has
raised issues pertaining to the necessary requirements for the
beneficial-parental exception to apply.
Father contends the juvenile court committed reversible error in
terminating his parental rights. Father
requests that the order terminating his parental rights be vacated and the
matter remanded to the juvenile court with instructions by this court to
conduct a new permanency hearing, taking into consideration the significant
relationship Daniel R. shared with Father.
Father contends the record contains substantial evidence that he
had a significant and emotional bond with Daniel R. which was neither
diminished nor nullified by any collateral relationships Daniel R. enjoyed with
other family members, or by the relationship between Father and Mother. The loss of this father-son bond, so contends
Father, would be incalculably detrimental to Daniel R. For the reasons hereafter stated, we affirm
the order of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
DCFS recommendations included
Mother. The recommendations included
participation in a drug program with random drug testing, individual
counseling, and a parenting class.
Search
for a suitable placement for Daniel R.
Criminal checks revealed Mother had
an extensive criminal history. Father
had a criminal record for possession of a controlled substance and receiving
stolen property. In its attempt to
locate a suitable placement for Daniel R., DCFS found that Father’s brother
Leonard had a record for minor vandalism and resisting a public officer. DCFS could not process Annette M. (paternal
grandmother) because the search turned up “too many subjects to identify.†DCFS refused to place Daniel R. with Lisa V.
(maternal grandmother) due to her own history with social services.
Early in the dependency proceedings,
Father admitted having used marijuana in the recent past and claimed that
mother had used crystal methamphetamine and alcohol while she was three to five
month pregnant. Mother admitted she had
been using drugs since age 13 but claimed she had recently stopped and was
clean.
Initial
placement with maternal aunt Ann V.
DCFS placed Daniel R. with Maternal
aunt, Ann V., on July 8, 2010. DCFS also
assessed the home of paternal grandmother Annette M. and found it to be
appropriate. It recommended Father have
overnight visits with Daniel R. in that home, provided Annette M. was
present. Once he was determined to be
the father, Father began visiting with Daniel R., and according to Annette M.,
who monitored his visits, he was an involved, hands-on parent. He fed Daniel R., held him, and changed him
as needed. DCFS further reported Father
was actively engaged in services, attending NA, and testing negative for
drugs. He had completed a series of five
parenting classes, but DCFS felt he needed additional classes to parent an
infant.
Ongoing
tension between maternal grandmother and Father.
The record discloses ongoing tension
between the maternal grandmother and Father, which appeared from the inception
of the case when Lisa V. made allegations against Father in the hospital. The tension continued between the maternal
side and Father, as maternal aunt Ann V. now complained she had to accommodate
visits for Father because he did not have a car and was dependent for
transportation on paternal grandmother Annette M. whose working hours as an
on-call nurse varied.
Recommended
additional reunification services for Father.
The Department recommended
additional reunification services for Father.
The animosity between the maternal and paternal side continued. Maternal aunt Ann V. alleged that Father must
have abused Daniel R. because she noticed a bruise and swelling on the side of
the child’s head. However, when she took
Daniel R. to be medically examined, the doctor found no serious concern of
neglect. Social worker Haileselassi
Hablezsi (H.H.) had independently interviewed maternal aunt Ann V., maternal
grandmother Lisa V., paternal grandmother Annette M., Father, and the paternal
uncles. H.H. concluded Daniel R.’s
injury did not occur in Annette M.’s home, as claimed by the maternal
relatives, because Annette M. presented him with time-dated pictures of the
child while in her home and the pictures showed no
tension between the maternal and paternal relatives, and the maternal relatives
were attempting to sabotage Father’s reunification.
that maternal grandmother Lisa V. not be allowed to further care for Daniel R.
Based upon H.H.’s findings of
alienation by the maternal family, especially by maternal grandmother Lisa V.,
the Department’s worker recommended that Lisa V. no longer be allowed to care
for Daniel R.
The inter-family tension continued,
during a period when the child was ill, with each side seeking their own
medical care for Daniel R. He was
diagnosed in December 2010 with bronchitis and chronic heart murmur. This turned into pneumonia by January
2011. The child was otherwise developing
age-appropriately, and was a mellow and happy child.
Recommendation
that reunification services continue for Father who was in partial compliance.
By November 2010, DCFS recommended
that reunification services continue for Father, who was in partial
compliance. Father was having a
difficult time maintaining his employment and also complying fully with the
case plan. However, he had attended some
sessions of his drug program and continued to test negatively. He also completed a TYKES class, which
focused on the development and care of young children. By January 21, 2011, Father had completed a
three month drug program. His counselor
stated that Father met all the program goals and no longer needed to
attend. Father continued to test
negative for drugs.
Unannounced
visit to Father’s home.
Father continued visiting regularly
with Daniel R. On January 8, 2011,
during an unannounced visit to Father’s home, the worker found it neat and
clean. Daniel R. was not feeling well
that day, but Father was holding and comforting his son, and Daniel R. was
responding to his father’s efforts.
Results
of Father’s prohibited reestablished contact with Daniel R.’s mother.
Father’s situation changed by
February 2011 because he had reestablished contact with Daniel R.’s
mother. Paternal grandmother Annette M.
and he argued, culminating in her kicking her son out of her home. By the August 26, 2011, 12-month review,
Father was residing with Daniel R.’s mother but they would not provide the
worker with their address. Father’s last
drug test on February 25, 2011, was negative, but he had subsequently failed to
show for testing on three other occasions.
He said he could no longer test because he lacked the transportation to
get to the testing sites, now that his mother refused to transport him. On several occasions, the worker provided
Father with referrals for additional parenting classes, but she could not reach
Father thereafter.
Father’s
visits cancelled when social worker could not verify his address.
The worker cancelled Father’s visits
starting February 25, 2011, because she could not verify his address. By March 24, 2011, Ann V. and Lisa V. no
longer wanted to monitor Father’s visits. During a telephone conversation with the
worker, Father demanded his unmonitored visits be reinstated, but the worker
refused to do so until Father resumed complying with the case plan and showed
he had stable housing. Father responded
with anger, stating he would not visit at all unless allowed unmonitored
visits, and hung up. DCFS recommended
the court terminate Father’s reunification services.
Domestic
battery arrest of Father.
In August 2011, Father was arrested
for domestic battery against Daniel R.’s mother. The responding officer found mother
hysterical and unable to give any details of the incident. She stated both that Father hit her, while
also denying that he did so. She did not
have any injuries, and appeared to be incapacitated and under the influence of
alcohol. She subsequently told the
police officer she did not want to prosecute Father because he did not hit her.
Department’s
366.26 report dated January 5, 2012, questioning maternal aunt Ann V.’s
suitability for adoption.
In its 366.26 report dated January
5, 2012, DCFS informed that the adoption assessment was still not completed
because maternal aunt Ann V. was consistently unavailable to speak with the
worker for half a year, April to October of 2011. Although the worker had left yet another
message on December 6, 2011, Ann V. had not responded by the date of the
reporting.
Although the Department recommended
termination of parental rights, it questioned Ann V.’s suitability as permanent
caretaker for Daniel R. The worker presented
Ann V. arrived home late in the evenings, and had been generally unavailable to
complete Daniel R.’s adoption assessment.
Father was visiting regularly with
Daniel R. at the DCFS offices. He was
observed to play with the child appropriately, and demonstrated patience when
the child was fussy. His interaction
with his son was significant and he had appeared to have established a parental
bond with his son. Father had also
complied and continued to comply with the case plan by completing a substance
abuse treatment program and parenting classes.
The worker asked the court to admonish Lisa V., Daniel R.’s daytime caregiver, for trying to
sabotage Father’s visits. She was
constantly interfering during his DCFS visits, and this was a significant
stressor for the child.
Father’s
388 petition; conflicting reports from DCFS; and court’s attempts to reconcile
reports.
The Department’s January 5, 2012,
report addressing Father’s 388 petition, prepared by social worker Evita Salas,
conflicted with the information in its 366.26 report. DCFS recommended the court deny Father’s 388
petition requesting reinstatement of reunification services because Daniel R.’s
best interest would not be served by granting the petition. This was based upon the maternal relatives
alleging Father was abusive towards them and might still be using controlled
substances. And, although during visits
Father would hold Daniel R., laugh with him, play games with him, or read to
him, there were times when he did not know how to soothe his child and get him
to stop crying.
On January 5, 2012, the court
ordered the Department to investigate further and reconcile its two conflicting
reports of that day, one by the DI Carr, the other by the social worker Evita
Salas. In response to that order, on
February 24, 2012, two additional reports were submitted, which in spite of
attempts to be reconciled, still presented a different thrust and coloring of facts,
depending on the author.
DI Carr’s supplemental report stated
that after interviewing both parents and grandparents, the DI now believed that
the parents had a sporadic, and sometimes conflictual relationship, with some
mutual domestic violence and many verbal arguments. Neither parent appeared to accept full
responsibility for his or her actions.
Mr. Carr claimed he did not know of this history when he prepared the
prior report, and it now presented an impediment to father being allowed to
parent his child. Therefore, it was more
prudent that Daniel R. be adopted. The
bond he had previously noted between father and son now no longer presented a
barrier to Daniel R.’s adoption.
According to Mr. Carr, the
conflicting information previously provided the court on January 5 was because
the 388 report prepared by worker Evita Salas had relied on outdated
information. However, both January 5
reports were correct regarding maternal grandmother Lisa V.’s considerable
obstruction of Father’s contact with his child and her attempts to manipulate
the child’s moods, which impacted the child’s visits with his father. Nevertheless, Mr. Carr now reported that
although Father had greatly improved his relationship with Daniel R., he had
not demonstrated significant progress with the case plan to deter Daniel R.’s
adoption.
DCFS’s
desire to continue to pursue adoption.
DCFS wanted to continue to pursue
adoption, and requested the hearing be continued to February 24, 2012.
Worker Evita Salas’ February 24,
post-permanency report presented much the same information previously reported
on January 5, 2012. Daniel R. was
developing age-appropriately, and was scheduled to begin a head start program
for the school year starting in July of 2012.
Father had started visiting with Daniel R. again on November 4, 2012,
after an 8-month break. Some of Father’s
visits had been cancelled because paternal grandmother Annette M., his source
of transportation, had to work, or she brought him to the visit later than the
15 minute window Father was allowed.
Worker Evita Salas reported that at times the child was fussy and cried
during visits, notably when the paternal grandmother Annette M. was
present. However, the child stopped
crying when he saw his father. He also
stopped crying when the paternal grandmother left the visitation room and
father and son were left together. As a
young father, Father was sometimes nervous in getting Daniel R. to stop
crying. However, he was able to handle
the situation when Daniel R. was not well and threw up. Father cleaned his son, and thereafter
engaged the child on and off.
concerns for Daniel R.
The parent’s relationship continued
to present a safety concern for Daniel R. and his return to either parent. In her statement to the Department’s worker,
maternal grandmother Lisa V. stated she was seeking custody of Daniel R.
because her sister, Ann V., was a good caretaker. Ann V. had decided to be more involved in
Daniel R.’s care and had quit her job.
Father’s
statement of desire to obtain custody of Daniel R.
Father stated he wanted to obtain
custody of his son, and had completed three months of outpatient drug treatment
in December of 2010, three months of parenting in October of 2011, and three
months of domestic violence training in December of 2011. He had also not smoked marijuana since March
of 2010, and was no longer living with the child’s mother.
revised report on uncooperative behavior by maternal aunt Ann V.
Starting February 24, 2012, the
Department revised its prior reporting of how uncooperative maternal aunt Ann
V. had been with the adoption process for more than half a year. Ann V. was now cooperating with the process,
and with Lisa V.’s help, was committed to caring for the child. On May 31, 2012, DCFS informed that maternal
aunt Ann V.’s home assessment had been approved. Ann V. was now prepared to adopt Daniel R. if
reunification with the parents was not possible. Daniel R. appeared to have a bond with Ann V.
and Lisa V. The Department continued to recommend
termination of parental rights.
Permanency
hearing on May 31, 2012.
At the permanency hearing held on
May 31, 2012, Father testified that he shared a good relationship with his
son. He was visiting regularly with his
son every Friday, for an hour and a half.
Since the prior court date, he had only missed one visit due to
work. During visits, he played with
Daniel R., read to him, and took him breakfast and fed him. The child ran up to him at the inception of
the visit and called him “Daddy.†He was
attempting to teach his son the alphabet and his numbers. The father-and-son bond had grown stronger in
the past six months. His son recognized
him as his father, and kissed him goodbye at the conclusion of the visits.
The court found the child to be
adoptable, and that Father had failed to establish the parental bond
exception. Although Father was visiting
more consistently in the past six months, his caretaker for all purposes had
become the child’s mother. Therefore,
the court terminated parental rights, and designated the caretaker, maternal
aunt Ann V., as the prospective adoptive parent. Over Father’s objection, the court ordered
all future visits with Daniel R. were to be entirely at the caretaker’s
discretion.
contentions
Father contends that substantial
evidence supported a finding that Father and Daniel R. shared a strong and
beneficial bond, meeting the first requirement of the section 366.26,
subdivision (c)(1)(B)(i) statutory exception to termination of his parental
rights in Daniel R. Father further
contends the court abused its discretion in finding that Father did not
establish the parental-bond exception because the evidence showed he had forged
a strong father and son bond which would be detrimental to Daniel R. to sever.
Respondent’s
contentions
DCFS contends that substantial
evidence supported the juvenile court’s finding that appellant’s relationship
with Daniel R. was not so beneficial to Daniel R. as to outweigh the benefits
of a permanent family.
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 (Bailey
J.).) 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. (See K.P.,
supra, 203 Cal.App.4th at p. 621; Bailey
J., supra, 189 Cal.App.4th 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. (Bailey
J., supra, 189 Cal.App.4th 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);
622.) Athough grounded in the facts, the
court’s determination on 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.†(Bailey J., supra, 189 Cal.App.4th at p. 1315; see also
When a parent such as Father has
visited extensively and had an established parental bond recognized even by the
Department’s workers, the 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.) Father bore the burden of establishing the
exception in the trial court. (In re
Autumn H., supra, 27 Cal. App. 4th 567, 574; In re Andrea R. (1999)
75 Cal. App. 4th 1093, 1107; In re Tabitha G. (1996) 45 Cal.App.4th
1159, 1164.)
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 that relationship
with the parent would outweigh any benefit to the child derived from his
adoption. (§366.26 (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 child would best benefit from a permanent plan such as
legal guardianship which preserved an avenue for father and son to continue
their relationship.
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
at p. 1350.) We note that Father does
not challenge the juvenile court’s finding that Daniel R. was adoptable. Considering its finding 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.)
As reasoned
in Autumn H., the parent–child
relationship exception occurs when a significant parent-child relationship is
found to exist. The juvenile court must
then engage in a balancing test, juxtaposing the quality of the relationship
and the deteriment involved in terminating it against the potential benefit of
an adoptive family. (
415, 424-425; see also In re Lukas B.
(2000) 79 Cal.App.4th 1145, 1154-1156.)
As noted in
Autumn H., interaction between
natural parent and child will always confer some incidental benefit to the
child. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) However, showing 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. (
at pp. 1348, 1350.) “[F]requent and
loving contact†alone is not sufficient.
(In re Beatrice M. (1994) 29
Cal.App.4th 1411, 1418-1420.) 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. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1109.)
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.)
We conclude that Father’s sporadic contact with Daniel R.
was by all accounts inconsistent and failed to satisfy even the initial prong
of the beneficial parent-child relationship exception to termination of his
parental rights. The lack of consistent
visitation finds support in this record.
Father did not consistently visit with Daniel. Further, he did not establish a beneficial
parent-child relationship during the time he did visit. Daniel never lived with Father; Daniel was
detained at birth after Father failed to go to the hospital to pick him
up. Thereafter, Father refused to visit
Daniel until a paternity test proved he was Daniel’s biological father. After Father learned he was Daniel’s
biological father, he began four hour monitored visits at the paternal
grandmother’s home. On July 29, 2010,
Father was granted overnight weekend visits in the paternal grandmother’s
home. That visitation was interrupted in
November 2010, while the Department conducted a child abuse investigation. During that time, Father was offered
monitored visitation, but he claimed he did not have time to visit.
By the time of the February 25, 2011 report, Father had
stopped visitation with Daniel altogether.
The paternal grandmother had asked Father to leave her home, and the
social worker was unable to make contact with Father. The juvenile court restricted Father’s
overnight visits until the Department could approve his home. In the meantime, his visits could be
monitored by either the maternal grandmother or Daniel’s caretaker.
In March, the caretaker reported that Father had not had
a visit with Daniel since before the February 2011 court date. Neither the maternal grandmother nor the
caretaker was comfortable monitoring Father’s visits because of his behavior. Father told the social worker he would not
visit unless he had unmonitored
visitation.
Father made no effort to visit Daniel until October 28,
2011, when, after eight months, he contacted the social worker to request
visitation. In February 2012, he
testified that he missed eight months of visitation because he was
working. When his visitation resumed,
Father shared his visitation with the paternal grandmother.
When the selection and implementation hearing was held in
May 2012, Father testified he missed one visit because of work, but paternal
grandmother visited with Daniel. Father
testified that during his visits, Daniel would run to him and calls him “daddy.†Father read to Daniel, but Daniel would lose
interest and play with toys. Father
testified that he believed there was a bond between him and his son, and it was
“better than it was before.†According
to Father, Daniel recognized him and was closer to him.
We note that the first prong of the exception described
by section 366.26, subdivision (c)(1)(B)(i) requires that parents have
maintained regular visitation. Father’s
off again and on again visitation with Daniel is not “regular visitation.†Father voluntarily absented himself for eight
months of Daniel’s life.
Our conclusion is that the juvenile court committed no
error.
The order terminating appellant’s parental rights is
affirmed.
J.
P. J. ZELON,
J.
indicated otherwise, are to the Welfare and Institutions Code.
and son have the same name. For clarity,
the senior Daniel will be referred to as “Father†and the junior Daniel by his
first name and last name initial “Daniel R.â€
