Filed 5/29/13 In re F.V. CA4/2
TO BE PUBLISHED IN OFFICIAL REPORTS
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
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THE COURT OF APPEAL OF THE STATE OF
APPELLATE DISTRICT
TWO
>
In re F.V. et al., Persons Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. T.V., Defendant and Appellant. | E057270 (Super.Ct.No. SWJ1100159) OPINION |
APPEAL from the Superior Court of
County. John M.
Monterosso, Judge. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Pamela
J. Walls, County Counsel,
and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
T.V.,
father, appeals from a judgment of the juvenile court terminating his parental
rights to two children. Father argues
the beneficial parental bond exception applies and the court should have
ordered legal guardianship instead of adoption.
After thoroughly reviewing the record, we reject father’s appeal and
affirm the judgment.
II
FACTUAL AND PROCEDURAL
BACKGROUND
A. Detention
CPS
2011, concerning three children: M.V.,
born in 1993; F.V., born in 1995; and S.V., born in 1999.
to protect the children because of mother’s bipolar disorder, her abuse of
prescription medication and arrest for driving under the influence in February
2011, and her neglect of M.V.’s
father’s neglect, emotional instability, and arrest in March 2011.
According
to the detention report, the family had a history of previous dependency
referrals in Los Angeles County between 1993 and 1999 and
in Riverside County between 2001 and 2010. In January 2011, CPS received a referral that
mother had been treating M.V. with her own prescription medication, which could
cause seizures. In interviews, M.V. and mother admitted she
had once given him the prescription medicine Atavan. M.V. said he had not taken any medicine or
visited a doctor in months. On February 28, 2011, mother was arrested while driving under the
influence of prescription medicine. On March 3, 2011, father was arrested after he was aggressive and
combative with a deputy sheriff during a home visit by CPS. Mother was unkempt, displayed poor hygiene,
and appeared under the influence. M.V.
was placed in a group home and F.V. and S.V. were placed with a Non-Relative
Extended Family Member (NREFM).
At
the detention hearing on March 8, 2011, the court found a prima
facie case had been demonstrated under section 300, subdivision (b), and
ordered F.V. and S.V. detained. M.V. was
not detained and was left in the custody of the parents because he was about to
turn 18. On May
30, 2011, the court ordered F.V. to be given psychotropic medication. On April 1,
2011,
the dependency petition was amended to allege that parents abused controlled
substances instead of prescription medication.
CPS recommended M.V. be dismissed from the petition because he was 18
years old.
B. Jurisdiction and Disposition
According
to the jurisdiction and disposition report, mother denied abusing prescription
medication but she admitted giving M.V. medicine on one occasion. Both parents emphatically denied the other
allegations. Both parents had a history
of drug use and criminal offenses.
Mother tested positive in March 2011 for methamphetamine, amphetamine,
and cocaine. Father initially refused to
submit to drug testing.
F.V.
thought mother has mood swings because she was bipolar and that she benefited
from medication. F.V. was depressed and
angry. He had tried to commit suicide at
age 13 before his mother stopped him. He
continued to fantasize about suicide. On
March 11, 2011, he had to be committed
under section 5150. F.V. was failing classes and was having attendance and
disciplinary problems.
S.V.
was not verbally expressive. She was in
the sixth grade and had poor attendance and grades. She enjoyed soccer and had a strong bond with
her family.
Mother
had used drugs as a teenager. She became
involved with father when she 13 and he was 18, becoming pregnant with their
first child, Amber, in 1989 when she was 15.
Their second child, Justin, was born in 1991. Mother and father asserted they had a
positive relationship except for arguing about money. They did not engage in domestic violence.
Mother was taking Klonopin
for bipolar disorder. She was unemployed but trying to obtain employment
as a certified nursing assistant.
Otherwise she was receiving $1,190 in cash assistance and food stamps.
Father admitted he had used
drugs in the past but denied current usage.
Father was under treatment for diabetes and he had been suspended from
working as a driver. Father was seeking
disability benefits and hoping to get a government loan to buy his own truck.
The
parents had been successfully having four-hour supervised weekly visits. Father was taking S.V. to her soccer games.
CPS concluded
that the parents were loving and concerned but unwilling to seek proper
treatment for mother’s mental health problems.
F.V. was also struggling with untreated mental health issues and both
children were doing poorly in school.
CPS recommended the parents receive reunification services.
In April 2011, the children
were placed with a family friend, Sheila, whom they regarded as a “second mom.â€
CPS reported that, on May 3, 2011, mother tested negative and father tested positive
for marijuana and that mother was not receiving mental health treatment because
she was not submitting to drug testing.
Mother was also not enrolled in parenting education. Father had not begun counseling or anger
management courses and he was evading drug testing. Father submitted a letter about services he
had completed in Los Angeles County during previous dependency
proceedings.
At the contested
jurisdictional hearing on May 10, 2011, the court sustained the dependency
petition, finding the allegations were true by a preponderance of
evidence. The children were removed and
the parents were ordered to have reunification services.
C. Six-Month Status Review
In
its six-month status review report for November 2011, CPS described mother as a
37-year-old homemaker. She managed the
household and its finances. She took
psychotropic medicine for her bipolar disorder.
Her only current criminal case was the pending charge of driving under
the influence. Mother resisted drug
treatment and drug testing. Mother was
erratic in attending psychiatric appointments.
She had not completed a parenting course.
Father was 44 years old and receiving $1,100 monthly in
disability benefits. He was diabetic
with no current criminal history. Father
had not enrolled in substance abuse treatment or anger management. He had not started therapy. On September 30, 2011, father tested positive
for methamphetamine.
The
parents were supposed to have visitation once a week for four hours but the
parents were irregular in their visitation.
Both parents wanted the children returned to them.
F.V.
needed eye glasses, 18 cavities filled, and five root canals. F.V. had completed a juvenile probation. F.V.’s behavior and grades had improved at
school and he was benefitting from therapy.
S.V.
also needed dental care for root canals and 13 cavities. S.V. was playing soccer and drums in the
school band. Her grades and attendance
had improved. Her therapist reported she
had been negatively affected by her parents’ drug use and domestic violence and
mother’s bipolar behavior. S.V. was
depressed and protective of her parents.
CPS
concluded it would not be appropriate to return the children to the
parents. The parents were delinquent in
their rent payments and their expenses exceeded their income. The parents had not completed any
reunification services and visited the children only sporadically. Sheila, their caretaker, was a prospective
adoptive parent. The children were comfortable
in their current placement.
The
status review hearing was held on November 8, 2011. Neither parent had complied with the case
plan and they did not attend the hearing.
F.V. attended the hearing and told the court he was feeling good about
his progress which he attributed to his foster mother: “She put me in the right path and showed me
how to do a lot of right decisions. [¶]
. . . [¶] . . . Mostly be more
responsible for my actions, how not to lie.
Because if you do lie, there’s consequence; and basically a lot of
things that my parents didn’t really show me that much.†F.V. continued to receive psychotropic
medication. The court authorized
unsupervised day visits with parents to continue.
D. Twelve-Month Status Review
In
May 2012, CPS recommended terminating reunification services, decreasing
visitation, and setting a hearing on a permanent plan of adoption. F.V. and S.V. were still placed with
Sheila. The parents and M.V. were living
together.
Mother was not taking her
medication and appeared unstable. She
had not participated in substance abuse treatment, drug testing, therapy, or
parenting courses. Father was no longer
receiving disability benefits. He was
losing his home and filing for bankruptcy.
Father had been arrested for drug offenses and other charges in October
and December 2011. He was not participating
in substance abuse treatment, drug testing, anger management, or therapy.
The
parents did not have working electricity in November 2011 so they could not
have the children for overnight visitation.
During the wedding of his older son, Justin, in January 2012, father
became involved in an altercation, which was upsetting for the children. The parents did not visit the children
regularly and their visits worried the children. After the wedding, there were no more
in-person visits with the parents and the children although the parents did
call the children occasionally. In
February 2012, father called and left threatening messages for S.V. Mother was arrested in March 2012. The parents also moved to La Puente in Los
Angeles County. F.V. was worried but
hoped his parents would improve.
Both
children were doing well in their placement with Sheila. F.V., age 16, was improving in school and
making plans for independent living. In
therapy, he was learning to share and be respectful and verbal about his
feelings. He was coping with his anger
and disappointment about his parents’ failure to follow their case plan. S.V., age 13, was also improving in school
because of her foster placement. She was
depressed about her parents but benefiting from therapy. S.V. wanted to live with Sheila because it
was “a better way of life for me.â€
Sheila was fully committed to adoption.
At
the 12-month review hearing on June 6, 2012, the court commented, “there is
ample evidence that both parents have failed miserably to complete any services
and make any progress whatsoever in their case plans†because they were not
enrolling in services or visiting with the children.
The court terminated
reunification services, decreased visitation to twice a month, and set a hearing
on a permanent plan of adoption.
E. Section 366.26
After
the June 2012 hearing, CPS could not locate either parent. In August 2012, mother was arrested and
released but was homeless. On September
5, 2012, CPS confirmed that father was in jail in Banning for drug possession.
In October 2012, F.V. was a
high school senior, on track for graduation.
His therapy was proceeding successfully.
S.V. was in the seventh grade, making good grades and also benefiting
from therapy. The children’s placement
with Sheila offered stability and security whereas they had not been in actual
contact with the parents since before June 2012. They were in contact with their older
siblings and their maternal grandfather.
The children were adoptable,
even though they were 17 and 13 years old.
According to CPS, the prospective adoptive parent had “spent long and
tireless hours trying to undo some of the damages that the parents did to their
children. The children continue to
struggle with emotional problems and they continue to feel ‘let down’ by their
parents when the parents do not call them.
The children are really affected by the fact that the parents . . . have
made no attempts in recent months to spend time with them. Even though the children know that they are
in a stable and secure placement, they continue to feel rejected by their
parents and this has caused them [undue] stress. They will need ongoing therapeutic services
to help work out their feelings and help them become more understanding of the
disappointments they feel regarding their parents’ continued drug abuse.†The children wanted to be adopted. The prospective adoptive parents were Sheila
and her husband, who both worked for a towing company, and had been assessed by
CPS.
The contested section 366.26
hearing occurred on October 5, 2012.
Father was present in custody.
Mother did not attend. Father
asked the court not to terminate parental rights and to order legal
guardianship, based on the parental bond exception. The court found there was no beneficial
relationship, the children were likely to be adopted, and adoption was in their
best interests. The court terminated
parental rights and set a post-permanency hearing for adoption.
III
BENEFICIAL PARENTAL BOND
EXCEPTION
Father contends the juvenile
court’s selection of adoption as the permanent plan for the children and
termination of parental rights was unsupported by substantial evidence because
a beneficial parent/child relationship existed between father and the children. Father argues legal guardianship would be a
better plan because it would preserve his relationship with the children.
A. Standard of Review
The substantial evidence
test is generally the appropriate standard for review of the juvenile court’s
findings and orders terminating parental rights for purposes of adoption
pursuant to section 366.26. (
553; In re Josue G. (2003) 106
Cal.App.4th 725, 732.) The review of an
adoption exception incorporates both the substantial evidence and the abuse of
discretion standards of review. (
621-622; In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314-1315.)
B. Discussion
Adoption is the permanent
plan preferred by the Legislature when a child cannot be returned to the care
of the parents. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) Once the children were determined to be
adoptable, father had the burden to establish termination of parental rights
would be detrimental under one of the exceptions to section 366.26, subdivision
(c)(1)(B). (In re C.F. supra, 193 Cal.App.4th at p. 553.) Section 366.26, subdivision (c)(1)(B)(i)
states that there can be no termination of parental rights where the parents
“have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship.†Application of the exception requires the
parent to prove that 1) the parent maintained regular visitation and contact,
and 2) the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i);
412, fn. 9.) Adoption is still
preferred. (In re C.B. (2010) 190 Cal.App.4th 102, 122.)
Father cannot establish the
first prong of the exception. Although
father expressed love for his children, his visitation and contact was sporadic
and inconsistent after August 2011 and during the rest of the
residence the children could visit. In
January 2012, father created a disturbance at the family wedding and later
threatened S.V. in telephone calls. In
April 2012, the parents had moved to Los Angeles County and were not visiting
the children. Between June and October
2012, father had no contact with the children other than a few telephone calls.
Father asserts, in a new
argument on appeal, that he was prevented from visiting whenever he was in jail
and after he was arrested on a drug charge on August 3, 2012. His claim of being in and out of jail during
the whole of the dependency proceedings is not supported by the record, as
demonstrated in respondent’s brief.
Instead, the record shows that father failed to maintain regular
visitation and contact for at least 15 months between August 2011 and October
2012, even when he was not in jail.
Sporadic visitation does not satisfy the first prong of the beneficial
relationship exception. (
p. 554.)
Father also has not
satisfied the second prong of the beneficial relationship exception by showing
that a benefit existed for the children and termination of parental rights
would be detrimental when contrasted with the permanency and stability of
adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Section 366.26 requires a comparison of “the
strength and quality of the natural parent/child relationship in a tenuous
placement against the security and sense of belonging a new family would
confer.†(Autumn H., at p. 575.) The
parent must establish the parent/child relationship is of such strength that
severance would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly
harmed if the relationship was terminated.
The parent/child relationship warranting preservation cannot confer
“some incidental benefit,†but must result “from the adult’s attention to the
child’s needs for physical care, nourishment, comfort, affection and
stimulation.†(Ibid.)
In order for the beneficial
relationship exception to apply, father must show he “occupies a parental roleâ€
in the life of his children. (
184, 207; In re C.F., supra, 193
Cal.App.4th at p. 555.) “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.
[Citation.]†(
454, 467; In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1349-1350.)
Father cannot show that he
occupied a parental role. It is
essentially undisputed that father was incapable of providing a stable home and
physical care. Although the children are
teenagers and lived with their parents until March 2011, the effect of the
parental relationship was almost entirely negative and did not meet the
children’s needs. Father was often angry
and hostile toward the children. The
children had not received proper medical and dental care and they were doing
poorly in school. S.V. complained about
not having adequate food. The children
themselves recognized that their foster family offered them stability and
security. They preferred to be adopted.
When considering the
totality of factors, the juvenile court had substantial evidence to find that
the parental bond exception did not apply and that the children would not
suffer “great harm,†if their relationship with father was terminated. (In re
Brittany C. (1999) 76 Cal.App.4th 847, 853.) Father did not visit the children and he did
not offer them any significant benefits.
The children’s needs were being met by a prospective adoptive family
willing to provide them with the stability and permanency they needed through
adoption.
Under these circumstances,
this case is not like In Re Brandon C.
(1999) 71 Cal.App.4th 1530, in which a positive relationship with a parent
could provide a “safety valve in the future, if need be.†(Id.
at p. 1537.) Father’s proposed
alternative for guardianship is not the better plan.
IV
DISPOSITION
Father cannot establish
either prong of the beneficial relationship exception. We
affirm the juvenile court’s findings and orders
terminating parental rights.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
name="_ftn1" title=""> [1] All
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
Riverside County Department of Public Social Services, Child Protective
Services.
